NSW Crime Commission v Chen [2017] NSWSC 943

NSW Crime Commission v Chen [2017] NSWSC 943

Ms Chen failed to discharge the onus of proof under s 10C(1)(a); the Court was not satisfied that the Commission had failed to establish reasonable grounds for the relevant suspicion underlying the 2014 restraining order. Evidence derived from examinations conducted under valid court orders remained lawfully obtained and relevant. The Commission established, to the requisite standard, well-founded suspicions justifying further restraining orders; therefore, the further orders sought under s 10A must be granted, and the defendant’s application for review of the restraining order fails.

Jurisdiction
Australia
Judgment Date
17 July 2017
Procedural Posture
Civil (proceeds of Crime) / Final Judgment on Restraining Order and Review Applications
Outcome
Defendant’s application to set aside restraining orders refused; Commission’s application for further restraining orders granted; costs in favour of the Commission; parties to file minutes of orders within 7 days.
Legal Topics
['restraining Orders Under Criminal Assets Recovery Act 1990 (nsw)' 'review and Setting Aside of Restraining Orders (s 10 C)' 'onus of Proof Under S 10 C' 'briginshaw Test in Civil Proceedings' 'examination Evidence Under S 12 Orders' 'validity of Suspicion Held by Authorised Officer' 'further Restraining Orders Under S 10 A']
['proceeds of Crime' 'property Law' 'criminal Law (civil Forfeiture)' 'statutory Interpretation'] ['restraining Orders Under Criminal Assets Recovery Act 1990 (nsw)' 'review and Setting Aside of Restraining Orders (s 10 C)' 'onus of Proof Under S 10 C' 'briginshaw Test in Civil Proceedings' 'examination Evidence Under S 12 Orders' 'validity of Suspicion Held by Authorised Officer' 'further Restraining Orders Under S 10 A']

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Procedural Posture

Civil (proceeds of Crime) / Final Judgment on Restraining Order and Review Applications

Legal Issues

  1. 1 ['Proper construction of s 10C(1)(a) of the Criminal Assets Recovery Act 1990 (NSW)' 'Whether the 2014 restraining orders should be set aside' 'Whether evidence obtained from examination after dismissal of charges was obtained in accordance with law and could be relied on by the Commission' 'Whether further restraining orders under s 10A should be made' 'Whether the Briginshaw civil standard applies to s 10A applications']

Ratio Decidendi

Ms Chen failed to discharge the onus of proof under s 10C(1)(a); the Court was not satisfied that the Commission had failed to establish reasonable grounds for the relevant suspicion underlying the 2014 restraining order. Evidence derived from examinations conducted under valid court orders remained lawfully obtained and relevant. The Commission established, to the requisite standard, well-founded suspicions justifying further restraining orders; therefore, the further orders sought under s 10A must be granted, and the defendant’s application for review of the restraining order fails.

Court Disposition

Defendant’s application to set aside restraining orders refused; Commission’s application for further restraining orders granted; costs in favour of the Commission; parties to file minutes of orders within 7 days.

Orders

  • ['Further restraining orders under s 10A Criminal Assets Recovery Act 1990 (NSW) to be made in favour of the Commission over property of Yan Ping Chen (excluding property specified in Schedule Two).' "Defendant's motion to set aside the 2014 restraining order and subsequent variations is refused." 'Ancillary orders...