Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Vu [2017] NSWSC 1676 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) Ngoc Anh Vu (Defendant) Representation: Solicitors: R Katrib, New South Wales Crime Commission (Plaintiff) File Number(s): 2017/360038 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, Ngoc Anh Vu. Other orders under ss 12(1) and 10B, 22, and 28A of the Act were also sought. 2. The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1). 3. The application was supported by an affidavit sworn on 17 November 2017 by Mr 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 $200,000 seized by police on 17 October 2017 during a vehicle search; a motor vehicle; and funds held in Commonwealth Bank accounts in the name of Ngoc Anh Vu. 6. Mr Spark deposed that he suspected that Ngoc Anh Vu 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). 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 Ngoc Anh Vu, who has been charged; as well as responses provided to questions asked of Detective Senior Constable Hudson, about the drafting of the Facts Sheet; information obtained as the result of searches conducted of records held in the COPS and RMS databases in relation to the property of Ngoc Anh Vu; and information provided by the Commonwealth Bank about Ngoc Anh Vu's accounts. 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 in the absence of a restraining order, it is possible for people to attempt to dispose of their assets very quickly, including by disposing of motor vehicles or backdating RMS documents, 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 Ngoc Anh Vu 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 Ngoc Anh Vu 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. I have reached these conclusions after consideration of the material relied on, including what was disclosed in the Facts Sheet and the answers provided by Detective Senior Constable Hudson, as to which Mr Spark deposed that he believed in the truth of the information provided. 15. The documents reveal that when Ngoc Anh Vu was stopped by police and her vehicle searched, numerous plastic bags containing a large amount of Australian currency was located and she was arrested and charged. Another person who had exited her car was stopped and also found to be in possession of a plastic bag containing a large amount of Australian currency. He, too, was arrested and charged. A financial analysis of Ngoc Anh Vu's affairs is being undertaken. 16. All of these matters, I am satisfied, provide a proper basis for the making of the orders sought. 17. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permit 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. Orders 1. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Ngoc Anh Vu. ********** 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: 14 December 2017