Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Quoc Kiem Tran [2017] NSWSC 1628 Hearing dates: 17 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: Hamill J Decision: Restraining order made. Ancillary orders declined. Catchwords: CIVIL LAW – restraining order over large sums of cash – dealt with ex-parte – ancillary order for examination of defendant – ought not to be made ex parte Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Principal judgment Parties: New South Wales Crime Commission (plaintiff) Quoc Kiem Tran (defendant) Representation: Solicitors: New South Wales Crime Commission (plaintiff) Ex parte File Number(s): 2017/00348661 Publication restriction: No publication of the proceedings or the orders for seven days. Ex tempore Judgment 1. The New South Wales Crime Commission pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) seeks restraining orders and other ancillary orders. 2. It does so by Summons and it relies on a Statement of Facts and Circumstances and an affidavit of Jonathan Lee Spark. 3. In the first instance the orders sought are for the restraint, to use a general term, of certain property nominated in Schedule 1 to the orders provided. That includes sums of cash in the sum of $785,000, $660,000, $31,000. The affidavit by Mr Spark annexes an exhibit which includes a lengthy and detailed fact sheet in relation to the activity and background to the seizure of that money. Mr Spark says, as a result of the facts and circumstances detailed in that Statement of Facts and the other matters referred to in his affidavit, that he holds the suspicion required by s 10A(5), namely that the defendant has engaged in serious crime-related activity or that he has acquired serious crime derived property or that the relevant interest is serious crime derived property. Mr Spark states the grounds upon which that suspicion is based. 4. I am of the opinion that there are reasonable grounds for that suspicion based on the material that I have read in the affidavit and the attached Statement of Facts, not to mention the sums of money involved, so I propose to make the restraining orders and some of the ancillary orders to facilitate the restraining orders. 5. However, the Commission also seeks an examination order pursuant to s 12 of the Criminal Assets Recovery Act. 6. I have proceeded with the matter ex parte and not required the Commission pursuant to subsection 10A(4) to notify the defendant that this application is being heard and I think that is obviously enough appropriate to protect the assets that are sought to be restrained. But I do not think it appropriate in the circumstances of this case, where the defendant has been charged with criminal offences of a very serious kind, to make an examination order ex parte given the possibility that that may, in the words of the High Court, "fundamentally alter the accusatorial judicial process". [1] 7. Such an order may be appropriate further down the track but, if it is, the defendant, in my view, has a right to be heard on the application. So I will decline to make the examination orders but I will make the remaining orders set out in the draft orders provided by the Commission. 8. Accordingly, and on the usual undertakings, I make orders in accordance with orders 1, 4, 5, 6, 7, 8 and 9 of the draft orders provided by the solicitor for the Crime Commission. 9. There will be a non-publication order for a period of seven days. 10. I make that order to maintain the integrity of the orders that I have made restraining the property. ********** Endnote 1. X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [124]. 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 November 2017