NSW Crime Commission v Trinh [2003] NSWSC 811

NSW Crime Commission v Trinh [2003] NSWSC 811

The respondent did not prove that any National Crime Authority payment was made, and the available evidence supported treating the Chau and Associates payments as made on his behalf under the hire purchase agreement. The casino records were admissible because their authenticity was conceded, but because it was not improbable that others used the respondent's patron cards or contributed to casino deposits, and because inflated Star City figures could not be ruled out, only half of the gambling amount claimed by the Commission should be treated as the respondent's expenditure. Further deductions were required for casino-paid air travel, and ordinary living expenses of $46,800 were to be...

Jurisdiction
Australia
Judgment Date
05 September 2003
Procedural Posture
Application for a Proceeds Assessment Order Under S27 of the Criminal Assets Recovery Act 1990 / Assessment of the Amount of a Proceeds Assessment Order After Dowd J Made an Order Under S27 in an Amount to Be Assessed
Outcome
The Court directed the parties' legal representatives to undertake the necessary calculations, after which a proceeds assessment order would be made in the amount arrived at; costs would be heard if necessary.
Legal Topics
['proceeds Assessment Order' 'assessment of Proceeds Derived From Illegal Activities' 'burden of Proof Under S28(3)' 'gambling Expenditure' 'business Records Admissibility']
['criminal Assets Recovery' 'confiscation of Proceeds of Crime'] ['proceeds Assessment Order' 'assessment of Proceeds Derived From Illegal Activities' 'burden of Proof Under S28(3)' 'gambling Expenditure' 'business Records Admissibility']

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Procedural Posture

Application for a Proceeds Assessment Order Under S27 of the Criminal Assets Recovery Act 1990 / Assessment of the Amount of a Proceeds Assessment Order After Dowd J Made an Order Under S27 in an Amount to Be Assessed

Legal Issues

  1. 1 ["What value of proceeds was derived from the respondent's illegal activities in the period 8 February 1995 to 8 February 2001." 'Whether alleged payments from the National Crime Authority should be treated as legitimate funds.' 'Whether payments from Chau and Associates accounts were expenditure of the respondent on a hire purchase agreement.' "Whether casino records accurately reflected the respondent's gambling expenditure." 'What allowance should be made for casino-paid air travel and ordinary living expenses.']

Ratio Decidendi

The respondent did not prove that any National Crime Authority payment was made, and the available evidence supported treating the Chau and Associates payments as made on his behalf under the hire purchase agreement. The casino records were admissible because their authenticity was conceded, but because it was not improbable that others used the respondent's patron cards or contributed to casino deposits, and because inflated Star City figures could not be ruled out, only half of the gambling amount claimed by the Commission should be treated as the respondent's expenditure. Further deductions were required for casino-paid air travel, and ordinary living expenses of $46,800 were to be...

Court Disposition

The Court directed the parties' legal representatives to undertake the necessary calculations, after which a proceeds assessment order would be made in the amount arrived at; costs would be heard if necessary.

Orders

  • ["Allow half the amount claimed by the Commission as expenditure referable to the respondent's gambling." 'Deduct a further $200 paid by the casino by way of partial reimbursement for a flight on 6 April 1998.' 'Deduct the estimated cost of return flights on 20 and 30 May 1998 where the casino records suggest the...