NSW Crime Commission v Chen

Leave

1. There was no issue between the parties that under s 10C(2) Ms Chen should be given leave to pursue her application for review of the 2014 restraining order. That leave is required because the application was brought considerably outside the 28 day limit there imposed, for the making of such an application.
2. In the circumstances I will explain below, I too am satisfied that the leave sought must be granted.

The orders respectively sought

1. The orders pressed for Ms Chen were: "a. An order setting aside the restraining order made pursuant to s. 10A of the Criminal Assets Recovery Act 1990 (NSW) ("the Act") made by the Supreme Court of New South Wales on 4 March 2014, and all the subsequent variations of that order; b. An order vacating all orders ancillary to the restraining order; c. An order excluding the examinations held on the dates below from being adduced into evidence: i. 23 and 24 April 2016: ii. 9 and 10 August 2016; and iii. 7 September 2017. d. Any other order the court sees fit."
2. The orders pressed by the Commission were: "1. An order that the Defendant's motion, notice of which was filed on 4 October 2016, shall not be determined until after this motion has been heard and determined. 2. An order pursuant to section 10A of the Criminal Assets Recovery Act 1990 that no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of the Defendant, Yan Ping Chen, including the interest in property in the property specified in Schedule One hereto, but excluding the interest in property in the property specified in Schedule Two hereto. 3. A declaration that variations made to the restraining order made 4 March 2014, namely order 2 of the orders made 4 March 2014, and orders dated 13 November 2015, 18 November 2015, and 25 May 2016 (which were made to the benefit of the Defendant) remain in force. 4. That liberty be granted to the Plaintiff and the Defendant to apply on three (3) days' notice. 5. An order for costs. 6. Any other order that the Court deems appropriate. SCHEDULE ONE … SCHEDULE TWO ..."

Issues

1. What was finally in issue at the hearing was: 1. The proper construction of s 10C of the Criminal Assets Recovery Act; 2. Whether the 2014 s 10A order should be set aside; 3. Whether evidence obtained from the examination of Ms Chen in 2014, after the dismissal of the charge, had been obtained in accordance with law and whether it was available to Mr Spark to rely on, in forming his suspicions as to whether she had engaged in other serious crime related activity; 4. Whether a further order under s 10A should be made; and 5. Whether the Briginshaw test applies to an application under s 10A.
2. While the written submissions also addressed the question of which motion should be heard and determined first, at the hearing it was common ground that the two motions should be heard together.

The proper construction of s 10C(1)(a) of the Criminal Assets Recovery Act

1. The construction of the Criminal Assets Recovery Act raises certain difficulties. It establishes a regime with potentially draconian consequences, whereby people who cannot prove that they have acquired property by lawful means, may be deprived of it.
2. Despite their subject matter, these proceedings are civil, not criminal: s 5. Section 10C, which appears in Part 2 "Restraining orders" of the Act, provides: "10C Review of restraining orders (1) The Supreme Court may, on the application of a person whose interest in property is affected by a restraining order, set aside the order on any of the following grounds: (a) that, having regard to the affidavit supporting the restraining order application and any other evidence adduced, the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion referred to in section 10A (5), (b) that the applicant has established that the order was obtained illegally or against good faith. (2) An application under this section by a person is to be made not later than 28 days after the person is notified of the order or may be made at any time with the leave of the Supreme Court. (3) If an application is made under this section, the restraining order concerned remains in force unless and until an order is made by the Supreme Court to set aside the order. (4) A person who applies for an order is entitled to adduce evidence at the application."
3. For Ms Chen it was accepted that when the ground specified in s 10C(1)(b) is advanced, it is for the applicant to establish that the s 10A order the subject of the application "was obtained illegally or against good faith". Ms Chen did not contend that the 2014 orders made by Button J had been so obtained, despite the serious complaint which she later made to the Inspector in 2015 about Mr Wen.
4. Rather, it was Ms Chen's case that despite what Mr Spark had deposed in his 2014 affidavit as to the suspicions which he then held, which had been relied on to support the s 10A application, the fact that the charge on which his suspicions rested had been withdrawn in 2015, established that the suspicions were no longer maintainable. In the result, the Commission had failed to satisfy the Court that there are reasonable grounds for the relevant suspicion referred to in s 10A(5): s 10C(1)(a).
5. That was in issue, as was whether s 10C(1)(a) imposes an onus on the applicant, or on the Commission, to establish what that ground specifies. That question arose because, unlike the express provision made in s 10C(1)(b), s 10C(1)(a) does not provide that it is for the applicant to establish that ground.
6. It must be accepted that the section could have been more clearly drafted. That a different approach to the structure of the two grounds specified in s 10C(1) has been adopted, may be an indicator that in the case of an application relying on s 10C(1)(a), it was not intended that the onus to establish that ground lies on the applicant, as is clearly intended by s 10C(1)(b).
7. Nevertheless, I am satisfied that the proper construction of s 10C does not permit the conclusion that in the case of an applicant advancing the ground specified in s 10C(1)(a), any onus is thereby imposed on the Commission in respect of the application to set aside the s 10A restraining orders it had earlier obtained.

Section 10A restraining orders are relevantly different to interlocutory injunctions

1. For Ms Chen it was contended that because orders made under s 10A follow an ex parte hearing, with the result that common law obligations of candour fall on the Commission, s 10C(1)(a) should be construed consistently. Accordingly, like in cases where an interlocutory injunction has been granted ex parte and final orders are sought at a contested hearing, the onus remains on the Commission to satisfy the Court as to the ground provided for in s 10C(1)(a).
2. I am satisfied that these submissions may not be accepted.
3. The analogy relied on is not entirely apt. Nor does the structure of the Act and the language of s 10C itself permit the conclusion for which Ms Chen urged.
4. While, like in the case of an application for injunctive relief, the Commission is entitled to apply ex parte for orders under s 10A, the Court may require that notice of the application be given: s 10A(4).
5. As discussed in International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [38] - [39] "ex parte" means "something done in judicial proceedings without notice to the party affected". An ex parte hearing of the kind which s 10A permits, but does not require, is an exceptional "departure, albeit temporary, from the general requirement of procedural fairness that no order adverse to a party's property, liberty, or any other interest should be made without that party first having an opportunity to be heard".
6. After that judgment was given, s 10A was amended by the introduction of s 10A(4): see Criminal Assets Recovery Amendment Act 2009 (NSW) Sch 1 [3]. Accordingly, applications brought under s 10A will not necessarily be heard ex parte. On an application for an ex parte hearing, it is for the Court to determine, on the evidence led by the Commission in support of the application, whether notice of the application should be given.
7. In that respect, applications for orders under s 10A are undoubtedly similar to applications for ex parte interlocutory injunctions, to which s 66 of the Supreme Court Act and the provisions of Part 25 of the Uniform Civil Procedure Rules 2005 (NSW) apply.
8. Section 10A, however, provides: "10A Proceedings for restraining orders (1) Application for order The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, or a specified class of interests, in property that are held in a false name. (3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales. (4) Notice to affected person of application Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application. (5) Determination of applications The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that: (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or (ii) the person whose interest is the subject of the application has acquired serious crime derived property because of any such activity of the person or of another person, or (iii) the interest is serious crime derived property, and stating the grounds on which that suspicion is based, and (b) (Repealed) (c) in the case of an application in respect of an interest referred to in subsection (2) - the authorised officer suspects that the interest is fraudulently acquired property that is illegally acquired property and stating the grounds on which that suspicion is based, and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion. (6) The Supreme Court may grant an application under this section for a restraining order for interests in property derived from external serious crime related activity only if the application is supported by an affidavit of an authorised officer stating that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside this State (including outside Australia) against any interests in property of the person concerned that are the subject of the application as a result of the external serious crime related activity. (7) Undertakings by State as to costs or damages The Supreme Court may refuse to make a restraining order if the State refuses or fails to give to the Court such undertakings as the Court considers appropriate as to the payment of damages or costs, or both, in relation to the making and operation of the order. (8) For the purposes of an application for a restraining order, the Commission may, on behalf of the State, give to the Supreme Court such undertakings as to the payment of damages or costs, or both, as the Court requires. (9) Urgent applications by telephone or other means of communication An authorised officer may, on behalf of the Commission, apply for a restraining order by telephone, radio, facsimile, email or other means of communication if the application is supported by a statement of the officer that: (a) the order is required urgently as there is a risk that funds in a specified financial institution (being an interest in property in respect of which the order is sought) may be withdrawn or transferred to a place outside New South Wales (including outside Australia), and (b) it is not practicable for the authorised officer to appear in person. (10) If it is not possible for the application to be made directly to the Supreme Court by the applicant, the application may be transmitted to the Supreme Court by another person on behalf of the applicant."
9. The meaning of "interest in property" is that provided in s 7. The meanings of "serious crime related activity" and "serious crime derived property" are specified in ss 6 and 9 respectively.
10. In the case of an application for an interlocutory injunction pressed at an ex parte hearing, the Court also has a discretion as to whether or not to grant the injunction: Supreme Court Act, s 66(1). That discretion may be exercised at any stage of the proceedings, when "it appears to the Court to be just or convenient so to do": s 66(4). The onus falls on the applicant to satisfy the Court that the discretion should be exercised, by establishing a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at trial the applicant will be entitled to relief and that the balance of convenience favours the injunction being granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at [4].
11. If made, the interlocutory injunction will persist until a specified date, or until further order, whichever is specified in the order which the Court makes.
12. At any further hearing, a final injunction may or may not then be pressed and if pressed, may be sought on the same or different terms, which may or may not be opposed. In any case, in the absence of consent, the onus remains on the applicant to justify the continuation of the injunction obtained ex parte: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731.
13. In the case of an application under s 10A, by way of contrast, whether or not the matter proceeds ex parte, if the Commission satisfies the Court, on the affidavit supporting the application and any other evidence adduced at the hearing, of the matters specified in s 10A(5), including that there are reasonable grounds for the suspicion deposed to, the restraining order must be made. The Court has no discretion to consider whether there is a prima facie case that the identified serious crime related activity has been engaged in, what the balance of convenience favours, nor the duration of any order made.
14. Nor does the Criminal Assets Recovery Act make provision for a process by which s 10A orders are made final, after all interested parties have been heard. To the contrary, once made, even ex parte s 10A orders continue in force, unless an application to have them varied, set aside, given a term, or become the subject of exclusionary orders succeeds, as I will explain.
15. Even if made at an ex parte hearing, a s 10A order is thus not made on an interlocutory basis, until those bound by the order can be heard. The duration such a restraining order is that specified in s 10D, namely: "10D Duration of restraining orders (1) After the first 2 working days of its operation, a restraining order remains in force in respect of an interest in property only while: (a) there is an application for an assets forfeiture order pending before the Supreme Court in respect of the interest, or (b) there is an unsatisfied proceeds assessment order or unexplained wealth order in force against the person whose suspected serious crime related activities formed the basis of the restraining order, or (c) there is an application for such a proceeds assessment order or unexplained wealth order pending before the Supreme Court, or (d) it is the subject of an order of the Supreme Court under section 20. (2) A restraining order ceases to be in force if it is set aside under section 10C."
16. Section 20 is also relevant. It provides: "20 Effect on restraining order of refusal to make confiscation order (1) If, while a restraining order is in force, the Supreme Court does not make an assets forfeiture order in respect of interests in property to which the restraining order relates or a proceeds assessment order or unexplained wealth order in respect of any person whose interests in property are affected by the restraining order, the Court may: (a) if it considers it appropriate, make an order in relation to the period for which the restraining order is to remain in force, and (b) make such other order or orders as it considers appropriate in relation to the operation of the restraining order. (2) An order under subsection (1) may be made to take effect: (a) forthwith, or (b) at a specified time, or (c) on the happening of a specified event."
17. Who is entitled to make an application under s 20 is not there specified. It follows that it could be made either by the Commission, or by a person whose interest in property is affected by the restraining order. The onus would fall on the applicant for the order, to satisfy the Court that the order should be made. The Commission thus could, for example, seek such an order in the event that a decision is made not to pursue an assets forfeiture order, or a proceeds assessment order, or an unexplained wealth order.
18. Consent orders rescinding a s 10A order could also be made under s 62, on the application of the Commission and with the consent of "all persons whose interest in property will be subject to an order under this Act" (see Criminal Assets Recovery Act, s 62(1)), if that gives effect to the terms of an agreement negotiated between the Commission and any one or more of such persons.
19. Even when an assets forfeiture order has been applied for or made, a person whose interest in property is affected may apply under s 25 for an exclusion order, from either the restraining order, or the assets forfeiture order. In that event, under s 25(2) the onus also falls on the applicant to establish that: "… it is more probable than not that: (a) in the case of an order relating to fraudulently acquired property - the interest in property to which the application relates is not fraudulently acquired property or is not illegally acquired property, or (b) in any other case - the interest in property to which the application relates is not illegally acquired property."
20. A s 10A order can only later be set aside under s 10C, on application by a person whose interest in property is affected by the restraining order. Otherwise, in an appropriate case, it may be given a specified term under s 20, on an application which may be made either by such a person, or by the Commission. Or it may be rescinded by consent under s 62. Or it may also be the subject of an exclusion order made under s 25, on application of a person whose interest in property is affected by the restraining order. There is no provision made for the revocation of a s 10A order, but it also appears to be one which the Court would have power to make, under s 23 of the Supreme Court Act.
21. Otherwise, the restraining order remains in force, while the circumstances specified in s 10D persist. That is, while there is an application for an assets forfeiture order pending, there is an unsatisfied proceeds assessment order or unexplained wealth order in force, or an application for a proceeds assessment order or unexplained wealth order.
22. It may thus be accepted that like in the case of an application for an interlocutory injunction pursued at an ex parte hearing, when a duty of candour to the Court falls on an applicant, the Commission on an ex parte application under s 10A has a similar duty of candour. Otherwise, however, an application for injunctive relief is relevantly dissimilar to an application under s 10A.
23. Those dissimilarities do not assist the conclusion that s 10C must be construed in the way for which Ms Chen contended, as I will explain further.

The statutory framework

1. The construction of s 10C must be approached in the way discussed in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] - [71]. That is, consistently with the language and purpose of all of the provisions of the statute and its meaning must be determined by reference to its language, viewed as a whole. The process of construction must begin with an examination of its context and sense must be made of the whole of the provision, so that "no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent": Project Blue Sky at [71].
2. The objects of the Act are those specified in s 3, namely: "3 Principal objects The principal objects of this Act are: (a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and (a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired, and (b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and (b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and (c) to enable law enforcement authorities effectively to identify and recover property."
3. In construing s 10C, the provisions of s 10A must be borne in mind, as must other provisions made in the Act, particularly those made in Part 2. I have already referred to some of the relevant provisions.
4. In Part 2, provision is also made as to the contents and effect of restraining orders; for the notice to be given when restraining orders are made (s 11); as to the circumstances in which the Court may make further orders, once orders under s 10A have been made (s 12); and for their recording (s 16). There is also provision made in respect of certain privileges (ss 13 and 13A); the sale of restrained property (s 14); contraventions of restraining orders (s 16); payment of legal expenses out of restrained property and their taxation (ss 16A, 16B and 17); the effect of a refusal to make a confiscation order (s 20); and provisions in relation to the NSW Guardian (ss 18, 19 and 21).
5. In construing s 10C it is also necessary to take into account the provision made in s 10B for orders that the NSW Trustee and Guardian take control of some or all of the interests in the property to which the restraining order applies: s 10B(2). It also provides for orders that permit meeting out of the restrained property, reasonable living expenses of identified persons and dependants, as well as reasonable legal expenses of identified persons for specified purposes: s 10B(3). It also provides for various directions which the Court may give the NSW Trustee and Guardian, including as to the sale of restrained property: ss 10B(3A), 10B(3B) and 10B(3C). And it provides for the satisfaction of specified debts out of restrained property: s 10B(4).
6. It is also relevant to bear in mind that other orders may be made in relation to restrained property, as they have been in Ms Chen's case, under s 12, after the restraining orders are made and before a s 10C application is filed. On Ms Chen's motion, she thus seeks to have the earlier orders made under s 12, including those made by consent in her favour, set aside and on the Commission's application, certain declarations are sought in relation to those orders.
7. In construing s 10C(1)(a), it is thus necessary to bear in mind that the scheme of the Act includes that: 1. Whether at an ex parte or contested hearing, once the Commission has satisfied the Court of the matters specified in s 10A(5), restraining orders under s 10A must be made; 2. An application brought under s 10C for the restraining order to be set aside, is to be made within 28 days, unless the Court later gives leave: s 10C(2); 3. A s 10C application may only be made by "a person whose interest in property" is affected by a restraining order: s 10C(1); 4. A s 10C application is made in respect of property already the subject of s 10A restraining orders, the Court having been satisfied by the affidavit and other evidence led on that application, that the authorised officer had reasonable grounds for suspecting, in respect of an identified interest in identified property, that: 1. the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or 2. has acquired serious crime derived property because of any such activity of the person, or of another person, or 3. the interest is serious crime derived property; 1. A s 10A order remains in force, "unless and until" one of the two grounds specified in s 10C(1) is established and the order is set aside by the Court: s 10C(3); 2. What s 10C(1)(a) requires to be established, on the balance of probabilities, is a negative, namely that "the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion referred to in section 10A(5)"; 3. The "relevant suspicion" to which the s 10C application is thus directed, is that explained in the affidavit sworn by the authorised officer in support of the application for the s 10A order which resulted in the restraining order the subject of the application being made; 4. The s 10C application must be determined by reference to that affidavit, which must be considered in light of any other evidence adduced on the s 10A application by either party, together with any further evidence led by the s 10C applicant; and 5. While the Commission is given no right to lead evidence on a s 10C application, even in response to evidence led on that application by the applicant, the applicant may lead evidence, even if the s 10A hearing did not proceed ex parte: s 10C(4).
8. It is also pertinent to bear in mind that there is a duty imposed upon parties by s 56(3) of the Civil Procedure Act 2005 (NSW), to assist the Court to further the overriding purpose specified in s 56(1), "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". It follows that if, at the time of a s 10C application, the suspicion on which the s 10A order was made, is no longer maintained by the officer who swore the affidavit relied on in support of that application, s 56 would drive the Commission to consent to the restraining order being set aside.
9. If the suspicion persisted, however, any application for an order on the ground here advanced under s 10C(1)(a), that "the relevant suspicion", which had led to the making of the restraining order could no longer be maintained, would be opposed, as it was in Ms Chen's case.
10. In my view these considerations drive the conclusion that a s 10C application, even when advanced on the ground specified in subsection (1)(a), imposes no onus on the Commission.
11. Section 10C(1)(a) specifies one of the only two grounds which may be advanced by a person whose interest in property is affected by a s 10A restraining order, on an application to set the order aside. What is there required to be established is that "the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion".
12. When such an application is made, the Commission will have already established by evidence led on the s 10A application, that reasonable grounds for "the relevant suspicion" exist. On the s 10C application it is only the applicant who is entitled to lead evidence to displace that conclusion. The applicant must provide evidence on which the Court can then come to the conclusion that the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion.
13. One significant indicator that s 10C was not intended to impose any onus on the Commission, even when the ground specified in s 10C(1)(a) is advanced, is thus that s 10C does not permit the Commission to lead any evidence to resist the case which the applicant advances, no matter which ground is relied on.
14. Whatever ground is advanced, a s 10C application may only be made by "a person whose interest in property is affected by a restraining order". That need not be the person suspected of having been involved in the serious crime related activity in question, but the Commission cannot be such a person. It is not given any interest in the restrained property, by the restraining orders made under s 10A. The Commission can thus only be a defendant to such an application, who may either consent to, or oppose the application.
15. Ordinarily, it is for the applicant who seeks an order, to satisfy the Court that a proper basis for its making exists. In the case of injunctive relief, whether interlocutory or final, the onus falls on the applicant. Likewise on a s 10A application, the onus falls on the Commission.
16. In the case of an application to set aside an injunction, however, it is the party who seeks that relief on whom the onus falls. Likewise, on a s 10C application, whichever of the two available grounds is advanced, the onus also falls on the applicant who seeks to have the restraining order set aside. If a s 10C application is met with a further s 10A application, as it has been in Ms Chen's case, however, the onus again falls upon the Commission.
17. When a s 10C(1)(a) ground is resisted, what arises for consideration is not the existence of "the relevant suspicion" deposed to in the affidavit sworn in support of the s 10A application, but whether, given the evidence led on the application, reasonable grounds for that suspicion then exist. That question must be determined by reference to that affidavit and "any other evidence adduced", by either party on the s 10A application, in light of the further evidence led by the s 10C applicant. That would include evidence adduced from the authorised officer who holds the relevant suspicion, if required for cross-examination.
18. The s 10C enquiry must then again be approached in the way discussed in George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at [8], "when a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person". Such a state of mind, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'": George v Rockett at [11].
19. That is why it must not be overlooked that on any s 10C application, the Court has already been satisfied as to the existence of such a state of mind, held on reasonable grounds. What must thus be determined on the s 10C application is whether, when that application is heard, there are still such reasonable grounds, given the facts then established.
20. When that is borne in mind, it is apparent that the construction for which Ms Chen contended pays insufficient attention to all that s 10C provides.
21. The conclusion that the onus falls on the applicant, whatever ground is advanced, is thus supported by the consideration that while s 10C(4) permits evidence on that application to be led by the applicant, there is no provision made for the Commission to lead any evidence, even in reply, on that application, given that it can never be the applicant under s 10C.
22. That reflects the structure of this statutory scheme, one which involves various departures from "due process safeguards" at common law, as was submitted for Ms Chen. Ordinarily a party who opposes an application is entitled to lead evidence in response to that led by the applicant. On a s 10C application, the Commission is not given that right.
23. The Commission may thus not itself lead evidence to support the continued existence of "the relevant suspicion" on reasonable grounds, although it undoubtedly has both the right to object to and test evidence which the applicant seeks to lead, in accordance with the provisions of the Evidence Act 1995 (NSW). That includes by cross-examining witnesses called by the applicant and objecting to documents sought to be tendered. It also has the right to be heard on the case which the applicant advances.
24. As I have said, however, what the Commission cannot do is either make an application under s 10C or lead evidence, no matter how relevant to such an application. In the result, if it wishes to advance a case on a different evidentiary basis to that which it advanced on its s 10A application in relation to "the relevant suspicion", it must make a fresh s 10A application, as it has done in Ms Chen's case. It is on that application that the Commission will again have to meet the onus which that section imposes upon it.
25. Contrary to the case advanced for Ms Chen, on a s 10C application the Commission is thus not in the position of a party seeking to have an interlocutory injunction made final, in which event the onus would fall upon it, to satisfy the Court that the orders should continue. The relevant analogy is a party resisting an application to set aside an injunction. Unlike in the case of a s 10C application, however, such a party is entitled to lead evidence to resist that application.
26. The construction of s 10C for which Ms Chen contends would leave the Commission in a situation even more unlike that of a party facing an application to set aside an injunction. Such a party is entitled to lead evidence when resisting such an application, but bears no onus on the application.
27. That the Commission is not given the right to lead evidence on a s 10C application, is explained by the relatively low threshold imposed by s 10A, for the making of a restraining order and by the fact that a s 10C application can be met, as it was in Ms Chen's case, by a further s 10A application. That also supports the conclusion that s 10C(1)(a) imposes no onus on the Commission.
28. That the Act imposes no obligation of continuing disclosure in respect of the matters on which "the relevant suspicion" is based, is also relevant. It is s 56 of the Civil Procedure Act which imposes the relevant obligations, as it does on all parties to civil litigation to which it applies, to actively reduce what is in issue in the proceedings to the "real issues". It is that obligation which would drive the Commission to seek consent orders revoking s 10A orders, if the basis for a suspicion which led to the making of restraining orders fell away.
29. The conclusion that the Parliament did not impose any onus on the Commission when enacting s 10C(1)(a) is also supported by the consideration that under this statutory scheme, once an order under s 10A is made, on an application by the Commission, the Court is empowered by s 12 to make orders "varying the interests in property to which the restraining order relates" and other ancillary orders. On such an application the onus undoubtedly falls on the applicant.
30. It is also relevant to consider that under s 64(1) of the Civil Procedure Act, the Court is empowered to order either that any document in the proceedings be amended, or that a party be given leave to amend any document in the proceedings, "for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings": s 64(2).
31. Those powers would permit the amendment of an application for orders under s 10A, even if that "would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings": s 64(3). On such applications, the onus would also fall upon the Commission, as the applicant. That section does not, however, permit amendment of a judgment or order already made in the proceedings, including ex parte orders made under s 10A: s 64(5).
32. When these matters are all taken into account, I am satisfied that it must be concluded that it was not intended that the Commission, it already having satisfied the Court of the requirements of s 10A on the application by which the proceedings were commenced, to also bear the onus when the ground specified in s 10C(1)(a) is advanced. That the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion, at the time the s 10C application arises to be considered, is for the applicant to establish on the evidence it advances on that application. The application will succeed if that evidence establishes that the facts are then not such as to induce "the relevant suspicion", in the mind of a reasonable person.
33. That conclusion, I note, accords with a view which I expressed, albeit in passing, in New South Wales Crime Commission v Lee and Ors [2010] NSWSC 1012 at [58]. It also accords with the explanation given in the Second Reading Speech of the Criminal Assets Recovery Amendment Act, which enacted s 10C was enacted: see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 2009 at 19 769. There it was said at 19 770: "Section 10C deals with the review of restraining orders making it clear that the court may set aside a restraining order on application by a person with interest in the affected property. Providing the application is made within 28 days of being notified of the restraining order, the person may give evidence on the grounds that the New South Wales Crime Commission failed to satisfy the court that there were reasonable grounds for the relevant suspicion, or the order was obtained illegally or against good faith. The restraining order remains in force until the court makes a ruling on the review application. Section 10D retains existing provisions regarding the duration of restraining orders."
34. If the Commission wishes to resist the consequences of a successful s 10C application, whichever of the two grounds specified in s 10C(1) is advanced, it may do so not only by resisting the application, but also by making a fresh s 10A application, in which it advances a different, or additional evidentiary case to that which it originally advanced, as it has done in Ms Chen's case. In that event, the onus falls upon the Commission to satisfy the requirements of s 10A on that further application. Of necessity, such an application would be heard together with the s 10C application, as it was in this case, rather than being heard ex parte.
35. This feature of the legislative scheme adds force to the conclusion that no onus fall on the Commission, even when the ground advanced by an applicant on a s 10C application is that specified in s 10C(1)(a).

Can a further restraining order be made?

1. It was finally common ground between the parties that when an application under s 10C is made, it is open to the Commission to apply for further orders under s 10A, on the basis of different suspicions to those which formed the basis on which an earlier order under s 10A was made.
2. That is correct. While the basis for suspicions which first led the Commission to make an application for s 10A orders may dissipate, as the result of later events, it is equally possible that other circumstances may arise whereby similar, or very different suspicions might be formed to justify a s 10A order.
3. In either case, it is open to the Commission to seek a further s 10A order, although the practical reality, given obligations imposed by s 56 of the Civil Procedure Act, is that while a s 10A order remains unchallenged, there would be no utility in the Commission pursuing a further order under s 10A in respect of property already the subject of a s 10A order.

Did Mr Spark's 2014 affidavit need to be separately tendered on the s 10C application?

1. It was not Ms Chen's case that when the s 10A orders were made by Button J in 2014, that no reasonable grounds then existed for the suspicions to which Mr Spark deposed in his 2014 affidavit. There was, however, a question as to whether, on the s 10C application, his 2014 affidavit had to be tendered.
2. Given that the Commission has no right to tender evidence on the s 10C application, the affidavit could only have been tendered by Ms Chen, if that were necessary. I am satisfied that it was not.
3. The ground specified in s 10C(1)(a) on which Ms Chen advanced her case is concerned with "the relevant suspicion", namely that to which Mr Spark deposed in his 2014 affidavit. That affidavit forms part of the Court record. It is not only what the Commission relied on, to advance its s 10A application, but as Button J explained in his judgment, what then satisfied the Court that the restraining order sought had to be made ex parte, it establishing the existence of reasonable grounds for Mr Spark's suspicions and concerns.
4. Section 10C(1)(a) expressly requires the Court to consider that affidavit again, on the application to set aside the restraining order, together with any other evidence adduced either on the s 10A application, or by the applicant on the s 10C application. In the result, without reference to Mr Spark's affidavit, Ms Chen could never satisfy the onus s 10C imposes upon her.
5. It is accordingly not necessary for the affidavit supporting the restraining order application to be separately tendered on the s 10C application.

Was Ms Chen lawfully examined?

1. Whether Ms Chen had been lawfully examined, after the dismissal of the charge and whether Mr Spark was entitled to refer to that evidence, in forming the suspicions to which he deposed in his 2016 and 2017 affidavits was also in issue.
2. On 23 April 2015, before her examination commenced, Ms Chen, who was that day unrepresented, asked: "INTERPRETER: I was the plaintiff in this case. I took actions against a government agency and the government came to my shop and my home to search and this case today is related to that case. The previous case was withdrawn on 5 March so is it necessary to continue this case? DEPUTY REGISTRAR: Yes, it is. These are proceedings where you are not the plaintiff, you have not commenced these proceedings. These are proceedings commenced by the Crime Commission and they are investigations which I believe are ongoing and as such the examination will continue. INTERPRETER: Okay. BHALLA: Yes. Just to clear up any confusion, I think the examinee and the defendant is talking about her criminal matter which was withdrawn last month but these are civil proceedings entirely separate from that matter. 30 DEPUTY REGISTRAR: Do you understand? INTERPRETER: So I have to accept that? BHALLA: Yes. DEPUTY REGISTRAR: Yes, you do. Thank you, Mr Bhalla."
3. While the Commission's response was not challenged before the further examinations proceeded, on these applications it was argued that the response misconceived the relationship between the criminal proceedings and the examinations to be conducted under the ancillary s 12 orders. That, it was submitted, also involved a failure on the Commission's part, to comply with its duty of candour, because the Court's power to proceed with the compulsory examinations was "wholly dependent on the validity of the ex parte orders made in March 2014 and the ancillary orders made in respect of those orders".
4. Even if that be accepted, there is simply no basis on which it could be concluded that any of the orders which have been made in these proceedings, including the s 12 examination orders, have not been validly made.
5. While the hearing before Button J proceeded ex parte, these are adversarial proceedings. There was no issue that the restraining order was served on Ms Chen, who then sought legal advice. Legal representatives entered appearances on her behalf, even though she was not represented on the day of the examination.
6. When Ms Chen, her daughter and husband were each examined, after the withdrawal of the charge, none of the orders which had been made in the proceedings had been challenged, whether by appeal or otherwise. Orders of this Court remain binding until set aside: State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26 at [33] and [38] - [41].
7. At the time of the examinations, the restraining order had been varied and other orders had been made. But they remained in force, not having been challenged on appeal, or set aside pursuant to a successful application under ss 10C, 20, 25 or 62. Indeed, prior to the filing of her motion in October 2016, neither Ms Chen nor the Commission had taken any steps to bring the restraining orders to an end.
8. The evidence obtained during the examinations conducted pursuant to the Court's examination orders were thus not obtained either improperly, or contrary to law. In the result, there is no basis upon which it can be concluded that Mr Spark was not entitled to consider that evidence, when he came to form the suspicions to which he deposed in his 2016 and 2017 affidavits.
9. Ms Chen was also entitled to rely on that evidence, as she did, in advancing her s 10C application.

No basis for setting aside the restraining order has been established

1. I am satisfied that despite the dismissal of the drug charge and the examinations which were pursued, Ms Chen has not satisfied the onus which fell upon her, to establish the ground she advanced under s 10C(1)(a). Even if, contrary to my conclusion as to the proper construction of the section, the onus fell upon the Commission, I would have reached that conclusion.
2. The reasons are as follows.
3. Ms Chen's case was that the evidence established that the suspicion to which Mr Spark deposed in his 2014 affidavit was no longer maintainable, following the dismissal of the drug charge in March 2015. Ms Chen's examination in February 2015 had not been directed to the drug charge. The result was that on the withdrawal of that charge, there was no material which allowed Mr Spark to maintain his suspicion. On her case that is the relevant date for her s 10C application.
4. It was thus argued that there then remained no reasonable basis for the suspicions to which Mr Spark had deposed having in 2014, a matter, it was contended, about which the Commission should have informed the Court, before the further examinations were pursued. Furthermore, on the withdrawal of the charge, the Commission should then have applied to the Court to have the s 10A order revoked.
5. These submissions also cannot be accepted.
6. This s 10C application is concerned with the suspicion to which Mr Spark deposed in his 2014 affidavit. There Mr Spark had explained the basis of his suspicion that Ms Chen had engaged in a serious crime related activity or activities, namely the supply of prohibited drugs, contrary to s 25(1) of the Drug Misuse and Trafficking Act. That is the "relevant suspicion".
7. As discussed in George v Rockett at 112 and Queensland Bacon Proprietary Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21, when deposing to a suspicion in an affidavit such as that required by s 10A, the facts that induce that state of mind of the person swearing the affidavit must be stated. Such facts are not necessarily the underlying facts which constitute the criminal conduct, or the relevant derivation of property, they are the matters that have led to, or induced, the authorised officer to the "positive feeling of actual apprehension or mistrust amounting to a slight opinion … more than a reason to consider or look into the possibility of its existence": Queensland Bacon at 303.
8. As I have explained, what Ms Chen must establish is that "the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion". One way in which that could have been established was for Mr Spark to have accepted in cross-examination that he no longer held the suspicion to which he had deposed in 2014. Another was for him to advance an explanation in cross-examination, as to why he still held that suspicion, which was held not to provide reasonable grounds for that suspicion.
9. Ms Chen's case was not so advanced. It was the withdrawal of the drug charge and the subsequent examinations, argued to be unlawful, which were relied on to advance the s 10C application. While Ms Chen relied on what transpired on the examinations, she did not lead evidence, however, about the circumstances in which the charge was withdrawn, nor was that explained by her examination. The reason why that occurred is simply unknown.
10. The Commission could not call evidence from Mr Spark to resist this application, but it was not suggested that when the withdrawal of the charge came to his attention, Mr Spark ceased to hold the suspicion to which he had deposed in 2014. He was not cross-examined, as he could have been, about the reasons why he continued to hold that suspicion. Nor was Mr Spark cross-examined about what Ms Chen said in her April 2015 examination, about the drugs the subject of the charge.
11. That after the withdrawal of the charge in March 2015 the Commission did not seek to have the restraining order revoked and later did not consent to the s 10C application which Ms Chen made in 2016, may not be overlooked. That gives rise to the obvious inference that Mr Spark continued to hold the suspicion to which he had deposed in his 2014 affidavit, notwithstanding the withdrawal of the charge and that he and the Commission considered those grounds to still have a reasonable basis. That also explains why Ms Chen did not cross-examine Mr Spark on either matter.
12. In his 2014 affidavit Mr Spark explained the grounds on which he came to have the relevant suspicion. They included: Ms Chen had been charged on 18 October 2013 with one count of deemed supply of a prohibited drug, contrary to s 25 of the Drug Misuse and Trafficking Act, an offence falling within the meaning of "serious crime related activity" in s 6 of the Act. A NSW Police Force Facts Sheet in relation to that charge; questions asked of and answers provided by the Officer in Charge, Sergeant Tessadri, about what it contained; the results of searches undertaken by Commission staff, of various databases, including that of the NSW Department of Finance and Services and the Australian Taxation Office; as well as records produced to the Commission by Suncorp Metway Limited, as to funds of in excess of $680,000 held in accounts in Ms Chen's name. Ms Chen traded under various business names at a shop in Goulburn St Sydney, where tobacco products were retailed. Ms Chen came to police attention during the course of a drug dog operation in October 2013. Police officers came to suspect that she was selling synthetic drugs at her shop. She was observed attempting to conceal a bag, which on later examination was found to hold substances which contained synthetic cannabinoids, prohibited drugs under the Drug Misuse and Trafficking Act. She was arrested and charged with drug possession. A search warrant was later executed at the shop, during which Ms Chen was present and further drugs were found. Ms Chen then made a number of admissions to possessing these drugs; to having sold them in the past; and to having them for future sale, knowing they were illegal. She also said that she had read a Chinese paper which had advised not to sell the drugs, but to retain them until the laws changed and she could sell them. The street value of the seized drugs was estimated to be $10,000.
13. Ms Chen's application must be determined in light of this explanation, considered together with the evidence which she led on her s 10C application. What is relevant to Ms Chen's application is not confined to events which occurred up to the withdrawal of the charge. Whether reasonable grounds for Mr Spark's suspicions exist, must be decided in light of the evidence as to what transpired both before and afterwards.
14. In resolving whether there are still reasonable grounds for Mr Spark's suspicion, that the Commission is not entitled to lead evidence on the application, must be taken into account. As discussed in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [166], all evidence led must be weighed "according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted".
15. Ms Chen led various evidence, including the affidavit sworn by her solicitor, to which was annexed various documents, including transcript of the examinations. It was explained in her written submissions at [51], that the affidavit evidence of her sister, Ms Ya Nan Chen, was relied on to meet the Commission's application for further orders under s 10A. The application she advanced under s 10C did not rely on that evidence, or that of the expert Ms Bo Sun.
16. That there are no longer reasonable grounds for the suspicion to which Mr Spark deposed having in 2014, does not necessarily follow from the withdrawal of the charges, given the admissions Mr Spark understands Ms Chen made during the search of her business premises in relation to the illegal drugs Police found there. They no doubt helped persuade Button J in 2014, that there were reasonable grounds for Mr Spark's suspicion that Ms Chen was involved in the supply of illegal drugs.
17. What emerged on Ms Chen's examinations in February and April 2015 went to matters such as: Her family background and how she and members of her family came to live in Australia; Work she had performed in Australia over the years and what she was paid; Money which she and her husband had brought to Australia; Income her husband had earned in various employment and from commissions for students who came to Australia to study; Funds provided to her by her parents, father in law, aunt and uncle and what she did with them; How property purchases had been funded; The source of funds in bank accounts and what they had been used for; Her records; Her inheritance from her father; The circumstances in which she had received over $1 million from her aunt, which had been kept in an account over which she had an authority and how she had transferred that money into her own account, after her aunt died and had then used it for her own purposes; Her family's wealth; A compensation payment she had received; Why property purchased by her aunt and uncle had been put in her name; Extortion of which she had been the victim; Who had made various bank transfers; How she received bundles of cash from persons she could not identify, her aunt having directed they be given to her and which she then took to China; How her aunt and uncle's business was conducted; How she came to own property in Shanghai; Litigation which she had pursued in China; Funds which she had in Chinese and Australian bank accounts; The circumstances in which her aunt made a will in China, in front of her and her sister, her aunt not wanting her cousins to know about money which she and her uncle had in Australia; How funds had come to her from Singapore, China and Japan for a business her husband had been involved in; and How she came to own a $2 million property given the small amount of her declared income and business losses and the nature of the business which she conducted at her shop.
18. Ms Chen was also examined as to the circumstances in which the drug charge was laid against her. Amongst other things, she said that police had attended her shop twice before and had told her, after testing the product which the charge related to, that it was legal; how she had later purchased a large quantity of that product and sold it, after she was assured by the seller that it was legal marijuana and "okay to sell because it's okay in the United States" and was being sold elsewhere in Chinatown.
19. Ms Chen also said that she had stopped selling the product after news reports that someone had died taking illegal tablets and that she had later read a newspaper article which listed other products which were going to be banned. She denied, however, knowing that the product to which the charge related was banned, or that she was selling it when she was arrested, even though lots of people were then and later asking her for it.
20. This evidence explains the Commission's opposition to the grant of the s 10C application and why Mr Spark continues to hold his suspicion. I am satisfied that Ms Chen's evidence does not leave open the conclusion that "the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion".
21. What arises for consideration is the existence of facts which provide reasonable grounds for Mr Spark having a suspicion that Ms Chen has been involved in the supply of illegal drugs. The legislative scheme does not require that such a suspicion be based on evidence admissible at a criminal trial, nor does it require that the material relied on will result in the pursuit of a criminal charge, or if pursued, conviction.
22. What Ms Chen said in her examination about how she came to be arrested, departed from what appeared in the Facts Sheet, particularly as to admissions made on arrest. But she did not deny having possession of the illegal drug to which the charge related, or having earlier sold it. Maintenance of a suspicion that Ms Chen had sold that drug at a time when she knew it was illegal, thus depends on Mr Spark not believing what Ms Chen said in her examination, as to the time and circumstances in which she came to stop selling it.
23. On the evidence, there is nothing unreasonable about Mr Spark having such a disbelief and thus continuing to hold the suspicion to which he deposed in 2014, that is a "positive feeling of actual apprehension or mistrust amounting to a slight opinion" that she was involved in the supply of illegal drugs.
24. When that is considered together with the absence of any evidence as to the circumstances in which the charge came to be withdrawn and with Ms Chen's failure to cross-examine Mr Spark about the reasons for the persistence of his suspicion, I am not satisfied that it can now be concluded that "the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion".
25. In the result, the s 10C application must fail.

Should further restraining orders be made under s 10A?

Section 10A and the Briginshaw test

1. Evidence led on a s 10A application must be approached in light of the requirements of s 140 of the Evidence Act, namely: "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
2. This is the statutory expression of the test discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-3: Morley & Ors v Australian Securities and Investments Commission (2010) 247 FLR 140; [2010] NSWCA 331 at [735].
3. As was submitted for Ms Chen, given the terms of s 140, in determining whether orders under s 10A should be made, proper account must be taken both of the fact that the subject matter of the required suspicion is serious crime related activity and that what is sought is the making of orders which have the draconian consequences which flow under this statutory scheme, for those who have an interest in the restrained property.
4. A suspicion that a person has engaged in serious crime related activity must be shown not only to exist, but also to have a reasonable foundation. I have earlier discussed the observations in George v Rockett, as to what must be established if a suspicion is to be found to exist, namely, the existence of facts which are sufficient to induce suspicion in a reasonable person. That is, a state of conjecture or surmise, where proof is lacking.
5. The fact that the suspicion concerns serious crime related activity does not alter either the nature of the state of mind which must be found to exist, or the burden of proof which s 10A imposes. That burden also cannot be overcome by a general presumption as to lawful behaviour: see Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 at [15] (French CJ), [31] (Bell J) and [171] (Keane J).

Further restraining orders must be made

1. As I have explained, as the applicant on the motions for further orders under s 10A, it is the Commission which has to establish that the requirements of s 10A(5) have been met, in respect of each application.
2. Whether it has met that onus must be determined in light of the evidence which it and Ms Chen each led, she being a person with a relevant interest, who appeared and adduced evidence on the hearing of the application, as s 10A(4) permits.
3. On the basis of that evidence I am well satisfied that there are reasonable grounds for the further suspicions which Mr Spark holds about Ms Chen and that the further restraining orders which the Commission seeks must be made.

The evidence

1. The Commission read only paragraphs 1 to 2 and 5 to 9 of Mr Spark's March 2014 affidavit, incorporated by reference in his November 2016 affidavit, as well as his 2017 affidavits.
2. Paragraphs 1 to 2 and 5 to 9 of Mr Spark's March 2014 affidavit concerned Mr Spark's role, his experiences during employment at the Commission and what various investigations conducted by employees of the Commission had uncovered, in relation to the property sought to be restrained.
3. The further suspicions to which Mr Spark deposed having in his affidavits, also involve serious allegations, there being no issue that the offences to which he refers, also fall within the statutory definition of "serious crime related activity". In his 2016 affidavit Mr Spark deposed to the suspicion that Ms Chen had contravened ss 192E and 135 of the Crimes Act. Those sections relevantly provide: "192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person's obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. ... 135 Stealing, destroying etc. wills or codicils Whosoever steals, or, for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument, either during the life of the testator, or after the testator's death, or whether the same relates to real, or personal estate, or to both, shall be liable to imprisonment for seven years."
4. Section 192E must be understood in light of s 192D, which provides: 192D Obtaining financial advantage or causing financial disadvantage (1) In this Part, obtain a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary. (2) In this Part, cause a financial disadvantage means: (a) cause a financial disadvantage to another person, or (b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary."
5. Mr Spark's suspicions rested upon identified evidence Ms Chen had given in her examination; documents produced in the examination, including her aunt's bank account statements; affidavit evidence of Mr Allingham; the results of the execution of various search warrants, when documents, cash and computers were seized; the results of forensic examination of Ms Chen's computer and of a CD, on which identified photographs were stored; what passenger movement records and incoming passenger cards had revealed as to Ms Chen and her aunt Ms Zhou's departures and arrivals in Australia; and times at which Ms Chen had been based in China.
6. Mr Spark explained that he suspected that Ms Chen had witnessed a will made by her aunt in October 2009 in China; that she was aware that thereby Ms Zhou had left her estate, including savings in bank accounts, to her three children; that after Ms Zhou's death Ms Chen had failed to notify the St George Bank of her aunt's death, had closed her term deposits, transferred the funds to her own account and acting dishonestly and by deception, had concealed the will for a fraudulent purpose; and that Ms Chen had taken the funds which her aunt had bequeathed to her beneficiaries.
7. In his March 2017 affidavit Mr Spark deposed to having the suspicion that Ms Chen had made a false complaint against Mr Wen, intending to pervert the course of justice, contrary to s 319 of the Crimes Act. That is a more serious offence than the one with which Ms Chen has been charged under s 314, which does not fall within the statutory definition of "serious crime related activity". Section 319 provides: "319 General offence of perverting the course of justice A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years."
8. Mr Spark explained that this suspicion rested on what was revealed in the Facts Sheet of the lesser offence with which Ms Chen has been charged; Commission records about Ms Chen; his meeting with Ms Chen in March 2014 and his later conversations with her, when no allegations of bribery were advanced; Ms Chen's complaint about Mr Wen only in December 2015; the results of the Commission's financial investigation of Ms Chen; and his knowledge and experience of Mr Wen.
9. In his April 2017 affidavit, Mr Spark deposed to additional matters which further investigation of Commission records had uncovered and which supported the suspicion to which he deposed in his March affidavit, including the Inspector's reasons for dismissing Ms Chen's complaint about Mr Wen.
10. In cross-examination, Mr Spark agreed that he understood from Mr Allingham's affidavit that Ms Chen had an obligation to notify the Bank of her aunt's death, which the Bank had imposed. He accepted that in the relevant Bank booklet, where the Bank's terms and conditions appeared, there was nothing concerning such an obligation. He also agreed that the relevant information to which he was taken, did not explicitly impose an obligation on persons authorised to operate an account, to notify the Bank of the death of the account holder, but he considered that this was implicit in what was there provided.
11. Mr Spark was also cross-examined as to his understanding of the contractual relationship between the Bank and an account holder. He agreed that the documents to which he was taken imposed no obligations on Ms Chen. He also agreed that what he had in mind when he swore his affidavit, was an implication arising from the nature of the authority she had been given to operate her aunt's account, that an obligation arose upon hearing of the death of the account holder, to notify the Bank. He also agreed that he had not sought any legal advice about the existence of such an obligation.
12. Mr Spark also agreed that he understood there was no ironclad rule that not a cent could be paid from an account following death, even after notification to the Bank. He explained however that : "… logically someone who has authority to operate a bank account that has large sums of money in it who has knowledge of the deceased - the person - the fact that the person has been - has died, and the fact that they should no longer have authority to operate that account once that's happened, implies that they should not operate that account and notify the bank that the person who operated - who's the account holder has died, who is no longer their customer in the sense of he's no longer the principal holder of the account."
13. Mr Spark also agreed that authority to operate a bank account did not give a person control of the account holder's estate when they died and that it was the person with control of the estate, who was the obvious person then to deal with all institutions, including Banks.
14. Mr Spark considered that there were significant differences in Ms Chen's case, however. He denied that there was never a reasonable basis for him to have formed the view that Ms Chen should have notified the Bank of her aunt's death, given the circumstances. He did not think that there was anyone else who knew of the account, or had authority to operate it, apart from her, although he agreed that he had not made reference to that in his affidavit.
15. Mr Spark also considered it to be relevant that Ms Chen was sufficiently involved in the making of the will she had witnessed, to have retained photographic evidence of it and that a week after her aunt died, she had transferred the funds to her own account. He considered that her evidence, when examined about the will, revealed knowledge of its existence and conduct contrary to what the document expressed as its intention, by Ms Chen taking the funds herself and using them for her own benefit, they being purposes unrelated to the estate.
16. Mr Spark agreed that nothing in his affidavit showed, in terms, that the will had been concealed or who else in China had as much, or more knowledge of its making or whereabouts, at the time of death. Mr Spark referred to the affidavit of a beneficiary, that there was apparently no will. He agreed that did not necessarily prove that somebody had concealed it and that he did not understand the operation of the rules of private international law, concerning the validity of testamentary instruments.
17. Mr Spark also explained his view that the document in question as a will, rested on Ms Chen's description of it as such.
18. Mr Spark was also cross-examined about Mr Wen, with whom he had worked since 2003, including as his superior. He denied having constructed a suspicion of an offence more serious than that which Ms Chen had been charged, in order to provide yet another basis for a further restraining order being imposed upon her, or that he did so because he was unsure of the basis on which his earlier suspicions had rested.
19. Mr Spark identified those parts of the Inspector's reasons, on which his suspicions rested. He did not agree that steps which Ms Chen had pursued were just part of adversarial proceedings, rather than her trying to interfere with the course of justice. He considered it to be relevant that she had made a complaint against a Commission officer, which had turned out to be false, accepting however, that the fact of making a complaint, alone, was not a justifiable basis on which interference with the course of justice, concerning an application made by the Commission, could rest.
20. In re-examination, Mr Spark was taken to the affidavit of Ms Tina Chen who deposed to the translation of a document which identified the three children of Ms Zhou to be her beneficiaries, and that of one of them, Mr Yi Jiang had deposed that his mother had died, without making a will. Mr Spark explained that he had concluded that Ms Chen had not disclosed the existence of the will about which she had given evidence, to the beneficiaries.
21. Mr Yi Jiang lives in Australia and his sister Ms Hong Jiang lives in New Zealand. Their older brother Mr Jie Jiang lives in Shanghai. Mr Yi Jiang deposed that his mother lived in China, where around 2000/2001 she had suffered a stroke. She was in and out of hospital until she deteriorated in January 2010. She died in October 2010 without having made a will. He said that the document in the photographs annexed to his statement in which his mother appeared, appeared to be a will distributing his mother's estate between he and his siblings. The first time he ever knew anything about a will and his parents bank accounts in Australia, was when informed by Commission staff in 2016.
22. Ms Tina Chen's translation of the photographed document was relevantly: "After careful consideration, I hereby decide to re-write my Will. My interest in the property at … and my savings in the bank account(s) are to be inherited jointly by my three children (Jie JIANG, Yi JIANG and Hong JIANG). The main reason is because Jie JIANG, my eldest son, has been rude to me, Shaohua ZHOU, over a long period of time. I therefore revoke all previous Wills and make this Will. No further Wills will be made in the future. I am currently in reasonably good health. Person making this Will: Shaohua ZHOU (signed) 22 October 2009"
23. In her October 2016 affidavit, Ms Chen's sister, Ms Ya Nan Chen, who still lives in China, described their family history and her relationship with Ms Chen and their other siblings, who live in Australia, as well as with her uncle Ming You Jiang and her aunt Shao Hua Zhou and her aunt's three children.
24. Ya Nan Chen also said that Ms Chen always had a close relationship with their aunt; that she would often visit their aunt and uncle, at their apartment; and that she would sometimes accompany Ms Chen. After their uncle's death, Ms Chen still visited her aunt, when she came back to China and sometimes Ya Nan Chen accompanied her.
25. Her aunt became very sick in 2009 and knew that she was going to die. In October 2009 she and Ms Chen visited their aunt at her apartment in Shanghai.
26. In her December 2016 affidavit Ya Nan Chen identified photographs of her aunt, dated 22 October 2009, deposing that they were taken while her aunt was writing what she understood at the time to be her will, in Mandarin. She also identified photographs taken of her, which depicted her witnessing the document her aunt had written. She also identified other photographs depicting Ms Chen signing the will as a witness. She said those photographs were taken at Ms Chen's place.
27. Ya Nan Chen also there deposed that it was on 21 October 2009 that she had gone to visit Ms Chen at her home in Shanghai, knowing that she had come back from Australia. Her aunt, her aunt's daughter-in-law and granddaughter were then there. They discussed her aunt's health and family matters and her aunt's daughter-in-law asked her aunt to write her will. Her aunt had agreed to do so and her granddaughter photographed or videotaped the whole process of her aunt writing out her will. She and Ms Chen were asked to witness the will, her aunt's daughter in law telling them that for a valid will, two witnesses are required. She agreed, witnessed the will and then left a short while later.
28. The following day, 22 October, her aunt wrote out another document which at the time, she understood to be her will. That was depicted in the photographs she identified. Her aunt then told her and Ms Chen "I did not want to write my will yesterday. The will I wrote today is my true intent. But if my daughter-in-law does not divorce Jie Jiang this will must not be used and do not show this will to anybody else".
29. Ya Nan Chen could not remember the exact contents of the two documents which she understood to be her aunt's wills. She was sure, however, that the first will mentioned identified real property to be inherited by her oldest son, Jie Jiang, alone and she believed that her aunt may have left everything only to him. She had never been in possession of either document.
30. Ms Bo Sun's expert certificate, admitted pursuant to s 177 of the Evidence Act, explains the relevant law concerning wills in China, by reference to the photographs in evidence. Her opinion was that the applicable law permits wills to be made in various forms, including "self-written, a will written on behalf of the testator, notarial, using a sound recording, and in emergencies, oral". She also explained that each of these forms had its "own set of legal formality" which had to be complied with to be valid and enforceable under Chinese law.
31. Ms Bo Sun also deposed that even if the photograph of the will was considered along with the affidavit evidence of Yan Na Chen, it would still be insufficient to constitute an enforceable will under Chinese law.
32. Ms Bo Sun's opinion was that the photographs annexed to Mr Spark's 2016 affidavit depicting Ms Zhou's purported will do not constitute a valid and effective will under Chinese law.
33. Ms Bo Sun also considered that if the will depicted in the photographs physically existed, it could constitute a will, if certain other conditions were satisfied, namely, that it was handwritten by Ms Zhou and there was no other evidence proving that the content of the will was not Ms Zhou's true testamentary intention. The physical will was not tendered. Its whereabouts was not established.

The orders sought must be made

1. It was not suggested for Ms Chen that Mr Spark did not hold the suspicions which he deposed holding. It was rather whether there were reasonable grounds for them, which was in issue.
2. Ms Chen contended that what Mr Spark had said in his affidavit evidence and cross-examination, when considered in light of the seriousness of the allegations made against her and the strength of the Commission's case, did not permit the conclusion that such reasonable grounds existed. Further, that in determining the reasonableness of the suspicions to which Mr Spark deposed, the Court would not be swayed by incomplete evidence or inexact proofs, citing Briginshaw v Briginshaw.
3. Again, I am satisfied that these submissions cannot be accepted. Indeed, I am well satisfied that the Commission has established that the suspicions which Mr Spark holds, are held on reasonable grounds.
4. Reliance was also placed on s 76 of the Evidence Act, which is concerned with the admission of opinion evidence. That section is not concerned with the formation of the suspicions dealt with in s 10A. Nor does s 10A provide that suspicions can be formed only on the basis of evidence which may later be admissible in a criminal trial.
5. Section 10A requires that it be established that an "authorised officer" holds the statutory opinion on reasonable grounds. It is necessary to bear in mind that this term is defined in s 4 to mean: "(a) the Commissioner for the New South Wales Crime Commission, or (a1) an Assistant Commissioner for the New South Wales Crime Commission, or (b) a member of the Police Force, or (c) a person authorised in writing by the Commission, either generally or in a special case, to act as an authorised officer for the purposes of the provision in which the expression occurs."
6. The Act imposes no requirement that such a person have legal qualifications. Nor does the Act require that an authorised officer obtain legal advice about the "serious crime related activity" to which the suspicion formed relates.
7. In the result, formation of the suspicions to which Mr Spark deposed does not require legal knowledge as to whether or not the document on which his suspicion rests was an effective will, under either Chinese or Australian law. Suspicion that the will is valid, is sufficient, if held on reasonable grounds. Such grounds were established by the evidence I have discussed.
8. That evidence established that to Mr Yi Jiang's knowledge, his mother had made no will, but Ms Chen had in her possession a photographed copy of a document which her aunt intended to be her will. The whereabouts of that document was not established, but Ms Chen and her sister had, however, witnessed their aunt executing that document as her will. Neither of them were named as beneficiaries. That provides reasonable grounds for Mr Spark to suspect that the document was an effective will.
9. The parties also addressed the question of the validity of the photographed document as a will under the Succession Act 2006 (NSW). Section 48 deals with the validity of wills executed in a foreign place. It provides: "48 General rule as to the validity of a will executed in a foreign place (1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place: (a) where it is executed, or (b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or (c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death. (2) The following wills are also taken to be properly executed: (a) a will executed on board a vessel or aircraft in conformity with the internal law in force at the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances, (b) a will, to the extent that it disposes of immovable property, executed in conformity with the internal law in force in the place where the property is situated, (c) a will, to the extent that it revokes: (i) a will, or a provision of a will, that has been executed in accordance with this Act, or (ii) a will, or a provision of a will, that is taken by this Act to be properly executed, if the later will has been executed in conformity with any law under which the earlier will or provision would be taken to have been validly executed. (3) A will to which this section applies is not, to the extent that it exercises a power of appointment, to be taken to have been improperly executed only because it has not been executed in accordance with the formalities required by the instrument creating the power."
10. On the evidence of Ms Bo Sun, the photographed document which Ms Chen and her sister described their aunt executing in Shanghai may, in fact, conform to the laws of China, which she described.
11. Section 8 of Succession Act is also relevant, given that the funds were held in a NSW bank account. It provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."
12. It is thus relevant that in Burge v Burge [2015] NSWCA 289, where a will which had not been executed in accordance with Arizona law, which required a will to be witnessed, was dealt with as a testamentary instrument in accordance with s 8: Burge at [26] and [36]. The same approach appears to apply in this case, as was accepted for Ms Chen.
13. Whatever might otherwise be suspected about the source of Ms Chen's wealth, about which she, her daughter and her husband were examined, on the material he identified, it was entirely reasonable for Mr Spark to suspect that a very considerable part of it was the result of Ms Chen having acted dishonestly, after her aunt's death.
14. Even if Ms Chen had no legal obligation to notify the Bank of her aunt's death, she could have done so. That not having done so, she acted on the authority to operate the account her aunt had given her, even after her aunt's death; transferred all of her aunt's money into her own account; then used those facts for her own benefit, in the ways she described; and while knowing that she was not named as a beneficiary in the document which she had witnessed, understanding it to be her aunt's will, provided ample grounds for the suspicion to which Mr Spark deposed.
15. None of the evidence which Ms Chen gave on her examination established a basis upon which it could reasonably be thought that she either was, or had a belief, that she was her aunt's beneficiary, or otherwise entitled to that money.
16. In the result, there are reasonable grounds for Mr Spark to suspect that Ms Chen had obtained money which did not belong to her, causing financial disadvantage to those to whom the money did belong.
17. Mr Spark properly accepted that his understanding, that there was an obligation on Ms Chen to have notified the Bank of her aunt's death, could be incorrect. There is no evidence of any legal obligation imposed upon her by her authority to operate the account, to do so.
18. That it was, nevertheless, reasonable for Mr Spark to have considered that she had acted dishonestly and benefitted by deception, by taking the money in the account, as she did, must be accepted. An understanding on his part that the authority she had to operate the account came to an end on her aunt's death, there being no suggestion that she was the executor of her aunt's estate, was also entirely reasonable, even on Ms Chen's own evidence.
19. In s 4B(1) of the Crimes Act, "dishonest" is defined to mean "according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people".
20. For Ms Chen it was contended that a conviction under s 192E required, in addition to dishonesty, that some act of deception be established: Moore v R [2016] NSWCCA 260 at [59]. That ordinary people would consider what Ms Chen did with the money in her aunt's account to have been dishonest, does not appear to me to be open to argument. That proof of the offence requires that a victim be deceived in some way, also does not preclude the conclusion that Mr Spark had reasonable grounds for the suspicions to which he deposed.
21. It is not necessary to determine, on this application, that any particular element of the offence Mr Spark suspects Ms Chen committed, can be proven. There was ample information upon which Mr Spark could come to suspect, however, that there had been deception involved in Ms Chen's cousins being deprived of the funds which she took from the bank account. For example, it is apparent that Ms Chen did not make Mr Yi Jiang aware of either those funds, or the document which she understood to be her aunt's will, by which it is apparent that her aunt intended her three children to share equally in her property and bank accounts. He is one of the relevant victims. Ms Chen's other two cousins are also victims.
22. Mr Spark's suspicion that Ms Chen did not have a legal right to the funds she took out of the account she had been authorised to operate, after her aunt's death, in order to use them for her own benefit, as she did, was also reasonably based. A suspicion that thereby, she obtained an obvious financial advantage and her cousins suffered a real financial disadvantage, is also reasonably based.
23. Any suggestion that Ms Zhou did not intend her children to benefit from the funds kept in the St George bank account, cannot be accepted, given the reference in the will to her savings in bank accounts being shared between her three children.
24. As to the suspected s 135 offence, the submission that there is no evidence that Ms Chen fraudulently concealed her aunt's will, also cannot be accepted. It was reasonable for Mr Spark to suspect that her children were unaware of the making of the will evidenced by the photographs which Ms Chen kept in her computer and of the funds in the bank account. Her sister's statement confirms that it was made when her aunt was in ill health, at Ms Chen's apartment. Her sister, who left her aunt and sister together, after witnessing the will, did not know what became of that document. The suspicion that Ms Chen had concealed its existence from her cousins, was entirely open to Mr Spark and reasonably based.
25. As to Mr Spark's suspicions about the s 319 offence committed by the complaints which Ms Chen pursued against Mr Wen, I am satisfied that they too, had a reasonable basis.
26. That conclusion rests not only on the matters which Mr Spark explained in his affidavit, but also his evidence in cross-examination as to those matters. That Ms Chen has been charged with a less serious offence, does not preclude Mr Spark having reasonable grounds to suspect that she committed a more serious offence.
27. I am well satisfied that Mr Spark must be accepted to be a witness of truth. He readily agreed in cross-examination with matters which did not advance the Commission's case. The suggestion that the further s 10A application was advanced only because of a concern that reasonable grounds for the holding of the other suspicions to which he deposed would not be established, cannot reasonably be accepted.

Orders

1. In the result, the further restraining orders which the Commission seeks under s 10A must be made and Ms Chen's s 10C application refused. The usual order as to costs under r 42.1 is that costs as agreed or assessed follow the event. In this case that is an order in favour of the Commission. I will hear the parties if some other order is sought.
2. Short minutes of the orders reflecting the conclusions I have reached should be filed within 7 days.

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: 17 July 2017