Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Dinh [2017] NSWSC 1305 Hearing dates: 18 August and 18 September 2017 Date of orders: 18 September 2017 Decision date: 27 September 2017 Jurisdiction: Common Law Before: Walton J Decision: On 18 September 2017, the Court found that, on the evidence before the Court, the Commission had established that a restraining order should be made under s 10A and ancillary orders be made under 12(1) of the Act, in the terms of the application before the Court. Orders were made accordingly. Catchwords: CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – scope of s 10A(5)(a) – restraining orders – ancillary orders – ex parte – orders made Legislation Cited: Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Crimes Legislation Amendment (Gangs) Bill 2006 (NSW) Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Interpretation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Stephen Toan Dinh (Defendant) Representation: Counsel: Mr I D Temby QC (Plaintiff) Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2017/252171 reasons for Judgment 1. This matter concerns an application for orders by the New South Wales Crime Commission ("the Commission") pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). 2. Section 10A of the Act enables an application to be made for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order. 3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) and an affidavit of Jonathon Lee Spark sworn on 14 August 2017. Mr Spark, who is an Executive Director (Financial Investigations) of and a financial investigator with the Commission, deposed that he is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Stephen Toan Dinh, had participated in a criminal group contributing to the occurrence of criminal activity contrary to s 93T of the Crimes Act 1900 (NSW). It was contended that the defendant had thereby engaged in a serious crime related activity for the purpose of s 10A(5)(a)(i) of the Act. An issue regarding s 10A(5) 1. During the course of hearing this matter, when the matter was first called, Mr Stephen Vorrieter, solicitor for the Commission, brought to the Court's attention that an issue may exist as to whether the suspected offences in the present matter constituted a "serious crime related activity" for the purposes of s 10A(5)(a)(i), when read in conjunction with s 6(1) and (2) of the Act. The gravamen of the question arising in that context was whether a suspected offence under s 93T constituted a "serious criminal offence" for the purposes of s 6(1) and (2) of the Act when the criminal group in which the defendant was alleged to have participated obtained material benefits from conduct that constituted an offence against laws of the Commonwealth (hereinafter referred to as the "Commonwealth offence"). The matter was adjourned and the Commission afforded the opportunity to submit further written submissions. 2. After the filing of written submissions, the matter was relisted on 18 September 2017. Mr I D Temby QC appeared on behalf of the Commission. The submissions of Mr Temby QC, in my view, brought clarity to the resolution of the issue and resolved the question in favour of the position advanced by the Commission, namely, that the present application meets the requirements of s 10A(5)(a) of the Act. The Scope of s 10A(5)(a) 1. The Act sets up a statutory scheme for the confiscation of criminal assets. This Court is conferred with powers under the Act to be exercised in furtherance of that scheme. One of the Court's powers, under s 10A, is to make restraining orders on application of the Commission. 2. The Court must make a restraining order if, relevantly, an authorised Commission officer proves by affidavit that he or she suspects on reasonable grounds that a person, whose property interests are the subject of the application, had engaged in a serious crime related activity. 3. By s 6(1), a serious crime related activity is defined as anything done by a person which was a serious criminal offence which expression, in turn, extended to an offence against s 93T of the Crimes Act 1900: see s 6(2)(g1) of the Act. It will be recalled that, by his affidavit dated 14 August 2017, Mr Spark, the authorised Commission officer, suspected that the defendant has engaged in activity contrary to s 93T of the Crimes Act. 4. Section 93T(1) of the Crimes Act provides that a person who participates in a criminal group commits an offence if they know, or ought reasonably to know, both that it was a criminal group and that their participation in the group contributed to the occurrence of any criminal activity. By s 93S "criminal group" means a group of three or more people who have as their objective obtaining material benefits from conduct that constitutes a "serious indictable offence", or from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in the State, would constitute a "serious indictable offence". 5. The expression a "serious indictable offence" is defined in s 4(1) of the Crimes Act as an indictable offence that is punishable by imprisonment for five years or more. That is the same definition as in s 21 of the Interpretation Act 1987 (NSW), which section also defines "indictable offence" as an offence for which proceedings may be taken on indictment. In respect of the construction of the latter definition, the Commission submitted, it provides for the type of matters that are to be dealt with in particular ways within the "criminal jurisdiction", of which the matter presently before this Court does not reside. To that end, Mr Temby QC submitted "serious indictable offence" is "a term of art so far as the State criminal law is concerned". 6. As to the precise question which arose in these proceedings, namely, whether the term "serious indictable offence" in s 93S extended to offences against the criminal laws of the Commonwealth Mr Temby QC made the following concession. The Commission's submissions, with respect to the Commonwealth offence "[seem] to have become something of a complicating factor in the present hearing and… we are sorry for bringing that complication into the matter". I now turn to a summary of the Commission's submissions in that respect. 7. The Commission submitted that the affidavit of Mr Spark made clear that the Commonwealth offence is not relied upon for the purpose of obtaining the restraining order sought. Mr Spark deposed that he believed the defendant has been charged with two offences, first, a Commonwealth offence of importing a commercial quantity of a border control precursor drug, and secondly, a State offence of participating in a criminal group contributing to criminal activity, which is a s 93T offence. It was contended, correctly in my view, provided that the Court is satisfied that a suspicion or reasonable grounds exist to establish that the s 93T offence (i.e. the State offence) has been committed, then the fact that there is also a Commonwealth offence charged, for the present purposes, is not relevant to the present application. 8. In the result, the matter sought to be established to the Court's reasonable satisfaction is that there is a suspicion that a s 93T offence was committed, pursuant to the statutory requirements of s 10A (discussed below). Accordingly, Mr Temby QC submitted it is not, as a matter of law, of concern, with respect to the criminal group in question, "whether the ultimately antecedent offences were Commonwealth offences involving importation of drugs or were State offences involving growing drugs or manufacturing drugs or possessing drugs". The distinction does not impact upon the application, provided the relevant s 93T offence is established in terms of the statutory requirements under s 10A of the Act. I accept that submission. The Remainder of Considerations 1. I now turn to the remaining statutory requirements bearing upon the application. 2. The grounds upon which Mr Spark held his suspicions are set out in his affidavit. In particular, he was provided with records of the Commission and a police fact sheet. Mr Spark deposed as follows: 1. There was, a commercial enterprise, Global Marine Imports, located at an address in Seven Hills. 2. The defendant worked for that business in the management structure. 3. Over a 6 month period, investigators monitored the criminal group conduct (including the use of Blackberry devices utilising code names and passwords) in furtherance of an operation to import a commercial quantity of border control precursors, namely one tonne of pseudoephedrine. 4. In particular, police monitored three persons, one of whom is the defendant, vacuum sealing bags containing substances whilst wearing latex gloves and later four persons including the defendant discussing the imminent arrival of the pseudoephedrine containing shipment. 5. Police monitored these persons, including the defendant, counting $1.2 million in cash which was then divided up. 1. It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspected that the defendant whose interest was the subject of the application has engaged in a serious crime related activity caught by the provision and his affidavit stated the grounds upon which the suspicion was based. 2. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made. 1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. I am satisfied that this criteria has been met in the present case. 2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Mr Spark's evidence I do not consider such notice should be given having regard to the capacity of persons to enter into unregistered mortgages in relation to real estate, to quote Mr Spark, "very quickly", dispose of a motor vehicle or back date from notifying the Roads and Maritime Services of the disposal of a vehicle or dispose of funds held in bank accounts very quickly and thereby attempting to defeat the operation of the Act. 3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the police fact sheet together with Mr Spark's evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Mr Spark based upon the aforementioned summary of the relevant elements of the police fact sheet. 1. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate. 2. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property, that is the subject of a restraining order, as to the affairs of the owner including the nature and location of any property in which the owner has an interest. 3. By s 12(1)(b1) of the Act the Court may order for the order the examination on oath of a person who is the spouse or a de facto partner of the owner of an interest in property that is subject to the restraining order, concerning the affairs of the person, including the nature and location of any property in which the person or that owner has an interest. In this matter, namely the defendant's wife, Thi Anh Kim Tran. 4. By s 12(1)(c1) of the Act the Court may make an order an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission or NSW Trustee and Guardian, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the Court thinks proper. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act. 5. On 18 September 2017, the Court found that on the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under 12(1) of the Act in terms of the application before the Court. Orders were made accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2017