New South Wales Crime Commission v Nguyen [2017] NSWSC 1675

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Nguyen [2017] NSWSC 1675 Hearing dates: On the papers Date of orders: 24 November 2017 Decision date: 24 November 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Orders in terms sought made. Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Hieu Nguyen (Defendant) Representation: Solicitors: R Katrib, New South Wales Crime Commission (Plaintiff) File Number(s): 2017/359961 Publication restriction: Nil

Judgment 1. By summons which I grant leave to file, the New South Wales Crime Commission applies ex-parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW) in relation to the interest in certain property of the defendant, Hieu Nguyen. Further orders are sought under ss 12(1), 10B, 22, and 28A of the Act. 2. The orders pressed were for restraining orders under ss 10A, 10B and 12(1). 3. The application was supported by an affidavit sworn on 17 November 2017 by Jonathon Lee Spark, the Commission's Executive Director (Financial Investigations) and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW). 4. For the reasons which follow, I am satisfied that the application should be heard ex parte and that the orders sought should be made. 5. The property sought to be restrained is identified in a schedule to the summons as cash of some $220,000 seized by police on 17 October 2017 during a person search. 6. Mr Spark deposed that he suspected that Hieu Nguyen had engaged in serious crime related activity within the definition of a "serious crime related activity" in s 6 of the Criminal Assets Recovery Act, namely, dealing with property suspected of being proceeds of crime in the values of $100,000 or more, contrary to s 193C(1) of the Crimes Act 1900 (NSW) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act. 7. Mr Spark also gave a detailed explanation of the basis upon which he came to hold this suspicion. That rested on a consideration of documents obtained by employees of the Commission, including a Facts Sheet and Court Attendance notice in respect of Hieu Nguyen, who has been charged; as well as responses provided to questions asked of Detective Senior Constable Hudson, about the drafting of the Facts Sheet and information obtained as the result of searches conducted of records held in the COPS database in relation to Hieu Nguyen. Mr Spark also deposed to his belief about the truth of the information provided by Detective Senior Constable Hudson. 8. Mr Spark deposed to his belief that the circumstances required that the NSW Trustee and Guardian take control of the seized cash, which is presently held by NSW Police, so that it will then earn interest. 9. Mr Spark deposed to his experience that other interests in property may be identified in the course of investigations, including interests in property held outside NSW and that owned by others. In the absence of a restraining order, it is possible for people to attempt to dispose of their assets very quickly, in order to defeat the operation of the Act. 10. He also deposed to his view that, given the serious nature of the criminal activity in which Hieu Nguyen is apparently involved, that notice should not be given of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit. On the evidence, I am satisfied that the Commission ought not to be required to give notice of this application to Hieu Nguyen and that it should be dealt with ex-parte. 11. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed. 12. In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made. 13. In the circumstances, I have concluded that it was also appropriate to make the other orders sought. 14. The material relied on, including what was disclosed in the Facts Sheet and the answers provided by Detective Senior Constable Hudson, well establishes that Mr Spark had a reasonable basis for the suspicions he deposes holding. 15. The documents reveal that when Hieu Nguyen, a Canadian national who arrived in Australia in September 2017, was not willing to give police a current address on arrest and his passport has not been seized. He was arrested after a co-accused's vehicle was stopped by police, after he had exited it. On search of the vehicle, bags containing large amounts of Australian currency were located. Hieu Nguyen walked past and observed the arrest. He was directed to stop, but ran away. He was arrested after a police pursuit, in which he resisted arrest and had to be handcuffed, before control over him was gained. He was found in possession of another bag containing the cash the subject of this application and was charged. 16. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days' notice.