//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] NSWSC 811
plaintiff. The Court directed the parties’ legal representatives to calculate the proceeds amount using the accepted figures, subject to the adjustments and addition identified; it would then make a proceeds...
Hidden J assessed expenditure relevant to a proceeds assessment order following Trinh's drug-supply conviction. The judgment treated the six years before the Commission's application as the relevant period. It applied different burdens to the respondent's claimed legitimate source of funds and to the Commission's proof of expenditure. The Court accepted most of the Commission investigator's analysis, found that eight payments from a law firm's accounts discharged Trinh's car hire purchase obligation, and admitted the casino records because their authenticity was not disputed. It nevertheless allowed half the claimed gambling expenditure to account for possible use of Trinh's casino cards by other people, a partly shared casino deposit, and possible inflation of records. It also directed deductions for casino-funded travel and included estimated living expenses of $46,800. The parties' representatives were to calculate the final amount, which the judgment itself does not give.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,221 words · generated 30/09/2026
No linked legislation citations have been extracted yet.
The New South Wales Crime Commission sought a proceeds assessment order against Huu Trinh under the Criminal Assets Recovery Act 1990. Trinh had been convicted in the District Court on 22 September 1999 of supplying heroin. The Commission applied for the assessment order on 8 February 2001. On 22 April 2002, Dowd J made an order under s 27 in an amount to be assessed, and the matter came before Hidden J to determine that assessment ([1]).
The statutory period was the six years before the Commission filed its application, from 8 February 1995 to 8 February 2001 ([2]). The Commission relied on an analysis prepared by its senior financial investigator, Richard Laurence Oades. His analysis compared Trinh's expenditure during the period with sources of funds the Commission accepted were untainted. The documentary material included financial records relating to Trinh and his girlfriend, Kim Eng Lo, and transcripts of examinations under s 12. Where precise figures were unavailable, Oades estimated from the material before him. His analysis found expenditure exceeding known legitimate sources by at least $442,990 ([3]).
The judgment identifies only three main areas of dispute. The respondent did not call evidence; his counsel relied on some answers given during the s 12 examination ([4]). First, Trinh claimed that he had been paid for assisting the National Crime Authority in 1999, but did not quantify the alleged payment. Oades said that an inquiry to the named Authority contact, Nick Bingham, indicated that no such payment had been made ([5]-[6]).
Second, the Commission relied on a bank loan obtained by Trinh and his wife in April 1999. About $84,600 of the $167,000 loan was paid to Chau and Associates. The Commission contended that eight withdrawals of $801.30 from that firm's accounts, each matching an Esanda car-loan payment, were payments made on Trinh's behalf ([8]-[12]). Third, the Commission relied on gambling records from Crown Casino in Melbourne, Star City Casino in Sydney, and a $10,000 deposit paid at Treasury Casino in Brisbane. Trinh disputed that all recorded gambling expenditure was his ([13]-[19]).
Hidden J resolved the disputes and addressed travel costs and ordinary living expenses. The judgment did not state a final dollar amount. Instead, it instructed the parties' legal representatives to undertake the calculations needed for a proceeds assessment order ([22]).
The statutory allocation of proof shaped the Court's treatment of the evidence. Section 27(1) required assessment of proceeds derived from illegal activities during the six years before the application. Section 28(3), as described by the Court, placed the onus on Trinh to prove that the source of expenditure during that period was not related to illegal activity ([2]). By contrast, the Commission bore the burden of proving the disputed expenditure itself ([7]).
That distinction mattered to the alleged National Crime Authority payment. Trinh had asserted that he received money for assisting the Authority, but did not say how much. He gave no evidence at the assessment hearing, and no reason was advanced why he could not have called Bingham. Hidden J was “far from satisfied” that the payment had been made ([5]-[6]). The judgment's point is not that a particular form of proof was mandatory; rather, the Court assessed the assertion against the respondent's statutory burden and the evidence actually presented.
The hire purchase issue was different because the Commission had to prove that the payments were Trinh's expenditure. The Esanda ledger recorded monthly instalments of $801.30. Eight withdrawals in the same amount from Chau and Associates' accounts matched dates on that ledger between June 1999 and February 2000 ([9]). Although there was no evidence from Mr Chau about the purpose of the withdrawals, the Court concluded that the evidence supported the inference that the payments discharged Trinh's obligation under the hire purchase agreement ([10]-[12]). The respondent's assertion that he recalled a similar car but sold it quickly did not persuade the Court to reject that inference ([11]-[12]).
For the casino records, counsel relied on National Australia Bank v Rusu. Hidden J considered that the objection misunderstood the issue. The respondent conceded the records were authentic casino records. His concern was whether the records accurately reflected his own gambling expenditure. The Court explained that Rusu concerned authentication, meaning proof that tendered documents were the records they purported to be. On the basis of the concession, the casino records were admissible ([14]). Admissibility did not resolve whether every recorded loss should be attributed to Trinh.
The Court addressed attribution by considering the respondent's account of other people using his patron cards, the possibility that some of the Treasury deposit belonged to others, and the claim that Star City supervisors had inflated figures. Trinh did not identify most of the alleged users, estimate what portion of the recorded losses belonged to others, or quantify any alleged inflation ([15]-[18]). Even so, Hidden J considered it not improbable that other people had used the cards from time to time. The Commission accepted that an allowance might be made, perhaps even by halving the gambling figure. The Court allowed half of the Commission's claimed gambling expenditure, an adjustment that also encompassed the possibility of inflated Star City figures ([19]).
Finally, casino records and airline records showed occasions when the casino had met or reimbursed travel costs. Hidden J directed a $200 deduction for a partial reimbursement and deductions for estimated costs of two return flights that the records suggested the casino had paid ([20]). For ordinary living expenses, the Court accepted the Commission's estimate of $150 per week, or $46,800 over six years, based on Australian Bureau of Statistics Household Expenditure Surveys. The respondent made no submission against that estimate ([21]).
The judgment identifies the governing statutory framework as ss 27 and 28(3) of the Criminal Assets Recovery Act 1990. It describes the six-year look-back period and the respondent's onus to establish that the source of relevant expenditure was unrelated to illegal activity ([2]). It also expressly states that the Commission bore the burden of proving expenditure ([7]). These are the legal directions the Court applied in conducting this assessment.
The judgment's discussion of National Australia Bank v Rusu (1999) 47 NSWLR 309 is confined to the distinction between authentication and accuracy. Hidden J said that Rusu concerned the need to prove that documents tendered in evidence were the records they purported to be. Here, the respondent conceded authenticity, so the objection based on that case did not prevent admission of the casino records ([14]).
The supplied judgment does not set out a broader history of the statutory provisions, describe the law before the Act, or state that it changed or extended an existing rule. It therefore supports a focused account of how the provisions and the records issue were applied in this assessment, but not a comprehensive account of the law before or after the decision. It also contains no later cases or subsequent treatment of this judgment. Any claim about later doctrinal change or the judgment's continuing status would need sources beyond the text provided.
At [2], the Court states that s 27(1) requires assessment of proceeds derived from illegal activities in the six years before the application, and explains that s 28(3) places the onus on the respondent to show that a source of expenditure was not related to illegal activity. In plain English, the Court separated the relevant period from the question of who had to establish a legitimate source for expenditure.
At [6], Hidden J says, “I am far from satisfied that any such payment was made.” The statement concerns the specific alleged payment from the National Crime Authority. The Court relied on the unquantified assertion, the absence of evidence from Trinh at the hearing, and the lack of an explanation for not calling Bingham. It is not a finding about every possible source of funds in the assessment.
At [12], the Court says that “the conclusion is readily available” that the payments from the Chau accounts were made on Trinh's behalf to discharge his hire purchase obligation. This is an inference drawn from the correspondence between the account withdrawals and the instalments recorded in the Esanda ledger. The Court acknowledged that the evidence was not entirely satisfactory without Mr Chau's explanation, but found the inference supported by the material before it.
At [14], Hidden J explains that authentication, rather than whether the records correctly attributed expenditure to Trinh, was the issue in Rusu. The practical distinction is that proof a record is genuinely a casino record does not necessarily establish that every transaction recorded on a patron card was the cardholder's personal expenditure. The Court admitted the records, then addressed attribution separately.
At [19], the Court says it would “allow half the amount claimed by the Commission as expenditure referable to the respondent's gambling.” This was a case-specific adjustment based on possible card use by others, a shared casino deposit, and possible inflation of Star City figures. The Court did not identify a general statutory formula requiring gambling expenditure to be halved.
At [22], the Court asks the representatives to undertake the calculations and says it will make an order in the amount arrived at. In plain English, the Court's reasons settled the approach and adjustments, but the quantified amount was left to be calculated after judgment.
The judgment is most directly relevant to a proceeds assessment under ss 27 and 28(3) of the Criminal Assets Recovery Act 1990 involving a defined six-year period and disputed expenditure. Its reasoning is particularly engaged where the Commission provides a financial analysis comparing expenditure with accepted legitimate funds and the respondent disputes either the source of funds or whether particular spending was personally incurred ([2]-[3]).
Its allocation of burdens is relevant where a respondent claims an additional legitimate source of funds but offers an unquantified assertion without evidence to substantiate it. The Court distinguished that source-of-funds question from the Commission's burden to prove expenditure ([5]-[7]). The judgment does not establish that all assertions of this kind will fail; its findings depended on the evidence and the statutory burden described by Hidden J.
The records discussion is relevant where a party accepts that documents are authentic records but disputes whether those records accurately attribute activity or expenditure to a person. Here, patron-card records were admitted, while the claimed use of cards by others affected the amount attributed to Trinh ([14]-[19]). The case also illustrates an assessment in which the Court used matching transactions to infer expenditure, allowed deductions for third-party payment of travel, and accepted an estimate of living expenses based on the identified surveys ([9]-[12], [20]-[21]).
The decision should not be read as determining how different evidence, a quantified attribution of shared activity, or a different statutory scheme would be treated. The judgment's conclusions are tied to its record, the parties' positions, and the statutory provisions it applied.
The supplied judgment does not cite any later decisions, and the material provided contains no subsequent cases discussing NSW Crime Commission v Trinh. It is therefore not possible, on this source alone, to describe whether later courts followed, distinguished, limited, or otherwise treated the decision.
The only cited case in the judgment is National Australia Bank v Rusu (1999) 47 NSWLR 309. Hidden J explained its relevance at [14], distinguishing the authentication of business records from a dispute about whether casino records accurately represented Trinh's personal expenditure. That is the treatment of Rusu within this judgment, not evidence of how later courts treated Trinh.
A reliable account of subsequent treatment would require later judgments or other legal sources not included in the material supplied. No later authority or citation history is inferred here.
The judgment leaves several matters unresolved in the text. Most plainly, it does not provide the final proceeds assessment amount. It directs the legal representatives to perform the calculations using the figures and adjustments the Court accepted, and contemplates that costs might require further argument ([22]).
The judgment also does not explain how the final calculations were performed, what exact total resulted from halving the gambling expenditure, or the final effect of the flight deductions. Those amounts are not set out in the supplied text. It likewise does not give a detailed account of the investigator's full schedule, so the accepted underlying line items cannot be independently reconstructed from this judgment alone ([3], [19]-[21]).
On gambling attribution, the Court accepted a broad allowance rather than identifying which specific transactions involved other card users or how much of the Treasury deposit belonged to accompanying people. It said that the extent of card use by others was impossible to say, and that it was not apparent how casino enquiries could provide that information ([19]). The reasons do not establish a generally applicable method for quantifying shared gambling activity in other cases.
Finally, the judgment provides no later authorities addressing its interpretation of ss 27 or 28(3), its use of estimates, or the distinction drawn under Rusu. Those questions cannot be answered from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
CITATION : NSW Crime Commission v Trinh [2003] NSWSC 811 HEARING DATE(S) : 22/05/2002 JUDGMENT DATE : 5 September 2003
JUDGMENT OF : Hidden J at 1 DECISION : See pars 19-21
CATCHWORDS : Confiscation of criminal assets: proceeds assessment order. LEGISLATION CITED : Criminal Assets Recovery Act 1990 CASES CITED : National Australia Bank v Rusu (1999) 47 NSWLR 309 PARTIES : NSW Crime Commission - Applicant Huu Trinh - Respondent FILE NUMBER(S) : SC 10363/01 COUNSEL : Mr I Temby QC - Applicant Mr P Lowe - Respondent SOLICITORS : JM Giorgiutti - Applicant Bradfield Anderson - Respondent
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
Friday, 5 September, 2003 10363/01 - NEW SOUTH WALES CRIME COMMISSION v Huu TRINH
JUDGMENT 1 HIS HONOUR: On 22 September 1999 the respondent to this application, Huu Trinh, was convicted in the District Court of supplying heroin. The applicant, the New South Wales Crime Commission, has since invoked a number of the procedures under the Criminal Assets Recovery Act 1990. On 8 February 2001 the Commission applied to this Court for a proceeds assessment order, pursuant to s27 of the Act. On 22 April 2002 Dowd J made an order under that section in an amount to be assessed. The matter is before me for the purpose of that assessment. 2 Section 27(1) requires the assessment of "the value of the proceeds derived" from the illegal activities of the respondent "that took place not more than six years before the making of the application for the order …". In the present case the relevant period is 8 February 1995 to 8 February 2001, when the Commission's application was filed. The task of assessment is guided by s28(3), the effect of which is to cast the onus upon the respondent to prove that the source of any expenditure during that period was not related to any illegal activity. 3 The Commission relies upon an affidavit of Richard Laurence Oades, one of its senior financial investigators. Mr Oades prepared an analysis of the respondent's expenditure over the relevant period, together with sources of funds which the Commission accepts to be untainted by illegal activity. A helpful summary of that analysis is provided in a schedule annexed to his affidavit. In evidence before me is a large volume of documentary material which Mr Oades examined for the purpose of preparing his analysis. It includes financial records of the dealings of the respondent and of his girlfriend, Kim Eng Lo, together with transcripts of evidence which they gave in the course of their examination under s12 of the Act. Where precise figures were not available Mr Oades made estimates, based on material set out in the affidavit. In the result, Mr Oades found that the respondent's expenditure exceeded his known legitimate sources of funds by at least $442,990. 4 Mr Oades gave oral evidence, and from his cross-examination it is apparent that much of his analysis is not in dispute. There are only three areas of contention. The respondent did not adduce any evidence, his counsel relying upon a number of the answers he gave in the s12 examination. 5 During the examination the respondent claimed that in 1999 he had rendered some assistance to the National Crime Authority, for which he was paid. He said that he dealt with one Nick Bingham at the Authority. He did not say how much he had been paid. Mr Oades made no reference to this matter in his affidavit. However, asked about it in cross-examination, he said that he had made an inquiry of Mr Bingham and had been told that no such payments were made. 6 What I am to make of this evidence is not at all clear. Counsel for the respondent complained that the matter had not been canvassed in Mr Oades' affidavit and the Commission had not made Mr Bingham available for cross-examination. However, in the light of s28(3) of the Act, this is clearly a matter about which the respondent bears the burden of proof. He has given no evidence, and no reason has been advanced why it would not have been open to him to have adduced evidence from Mr Bingham. I am left with the respondent's assertion, untested before me, that he received from the National Crime Authority an amount of money which he has not attempted to quantify. I am far from satisfied that any such payment was made. 7 The other two areas of contention relate to the respondent's expenditure, a matter as to which the Commission bears the burden of proof. 8 The documentary evidence discloses that in April 1999 the respondent and his wife, The Chau Trinh, obtained a secured loan from a bank for $167,000. From that sum, $84,600 (in round figures) was paid to Chau and Associates, a firm of solicitors of which Mr Michael Chau is the principal. 9 In October 1996 the respondent entered into a hire purchase agreement for a Mercedes Benz sedan with Esanda Limited. The agreement was over four years, with monthly repayments of $801.30. A ledger from Esanda records payments in that amount being made between October 1996 and February 2000. Records of two bank accounts held by Chau and Associates disclose eight cheque withdrawals of $801.30 between June 1999 and February 2000, each of them on a date corresponding with one of the payments recorded on the Esanda ledger. 10 It is the Commission's case that the sum of $84,000 odd paid to Chau and Associates was held by that firm as agent for the respondent (and, presumably, his wife). I should infer, says the Commission, that the eight withdrawals of $801.30 from the Chau accounts were for payments on the hire purchase agreement in respect of the motor vehicle and, accordingly, should be seen as expenditure of the respondent. Mr Oades said in cross-examination that he spoke to Mr Michael Chau about the matter, but he was not asked to recount the conversation. He made no reference to any such conversation in his affidavit. 11 Counsel for the respondent relied upon his client's assertion in the examination that he remembered a car like the one the subject of the hire purchase agreement, but he had sold it "quickly" (although he could not recall to whom). Counsel complained that Mr Chau, like Mr Bingham, had not been made available by the Commission for cross-examination and submitted that, in the absence of evidence from Mr Chau, I should not draw the inference for which the Commission contends. 12 It is true that, without any evidence from Mr Chau about the purpose of the eight payments referred to, the evidence about this matter is not entirely satisfactory. On the other hand, it was open to the respondent to have adduced evidence from Mr Chau. (In so saying, I am mindful that this is not an issue upon which the respondent bears the burden of proof.) That said, from the evidence which I do have the conclusion is readily available that the payments from the Chau accounts were made on the respondent's behalf in discharge of his obligation under the hire purchase agreement. I am so satisfied. 13 This brings me to the third, and most important, area of contention: the respondent's gambling. This relates primarily to what appears to have been extensive gambling activity at the Crown Casino in Melbourne between 1997 and 1999 and the Star City Casino in Sydney between 1997 and 2000. In addition, the Commission relies upon evidence of the payment of a deposit of $10,000 at the Treasury Casino in Brisbane in August 1999. From records of the respondent's wins and losses at the Crown Casino and Star City Casino, Mr Oades calculated that he had sustained substantial losses during the relevant period, which are shown as expenditure in the schedule to his affidavit. 14 Counsel for the respondent objected to the casino records, relying upon the decision of Bryson J in National Australia Bank v Rusu (1999) 47 NSWLR 309. The argument centred upon the records of the Sydney and Melbourne casinos, but I take it that the objection embraced the single page record from the casino in Brisbane. However, it became apparent in argument that the objection was misconceived. Counsel's concern was with the accuracy of the records as a reflection of the respondent's expenditure rather than their authenticity as records of the casinos concerned, which he conceded. It was the authentication of business records, that is, the need to prove that documents tendered in evidence are the records which they purport to be, with which National Australia Bank v Rusu was concerned. The casino records in the present case are admissible. 15 In evidence in the examination, the respondent said that the $10,000 deposit paid at the Treasury Casino was not all his money. Some of it was the money of others who had accompanied him to the casino. Apart from one person whom he named as Chu Mu, he was unable to say who these other people were. Nor did he say how much of the deposit was his own money. 16 The respondent had accounts at both the Crown Casino and Star City Casino, for each of which he was issued with a patron card. As I understand it, it was from the use of those cards that records of his wins and losses at both casinos were compiled. His evidence at the examination was that he regularly took people to each casino and allowed them to use his card, so that not all of the losses recorded were in fact his. Indeed, he said that the level of his gambling at Star City was "very small." In addition, he claimed that some supervisors at Star City had inflated the figures attributable to his card so that he could obtain benefits afforded by the casino to patrons whose gambling was substantial. He said that this practice led to a number of supervisors being dismissed. He did not say to what extent his figures had been inflated. 17 The respondent did not identify any of the persons said to have used his card at Star City or the Crown Casino, although it must be said that he was not asked to. Nor did he provide even an estimate of the amount of his recorded losses which should be attributed to others. On occasions the Crown Casino records disclose that he travelled there in the company of named persons, but whether any of those people used his card he did not say. Mr Oades could not recall having spoken to any of them. He did not make enquiries of either casino about the possible use of the respondent's card by others, nor of the Treasury Casino about the circumstances of the $10,000 deposit. He made no enquiry of Star City about the dismissal of supervisors. 18 In short, the respondent's case is that the records of all three casinos do not reflect his true expenditure. Yet again, I have no more than the respondent's assertion to that effect, untested before me, without any attempt to arrive at what he claims to be the correct figure. Yet again, relying upon the fact that the Commission bears the burden of proof on this issue, he has been content to complain that Mr Oades did not make enquiries about matters of which he himself might have adduced evidence. 19 That said, I do not find it improbable that he allowed others to use his patron cards from time to time. To what extent he did is impossible to say, and it is not apparent to me how any enquiries of the casinos could elicit that information. Equally, it may be that some of the deposit paid to the Treasury Casino was on behalf of people accompanying him. Senior counsel for the Commission acknowledged that I might make some allowance for these possibilities, perhaps even to the extent of halving the gambling figure. While I suspect that it is unduly favourable to the respondent, I propose to take that course. This would also embrace the possibility, which I am not prepared to rule out, that his figures at Star City were corruptly inflated by casino staff. I would allow half the amount claimed by the Commission as expenditure referable to the respondent's gambling. 20 Allied to the respondent's gambling expenses is the cost of his air travel between Sydney and Melbourne for the purpose of attending the Crown Casino. Records of the casino and the relevant airline disclose that on occasions the casino met the cost of those flights. Mr Oades has made allowances for most of those occasions in his figures. However, after an examination of the casino records during his oral evidence, counsel for the Commission accepted that allowance should be made for a further sum of $200 paid by the casino by way of partial reimbursement for a flight on 6 April 1998. In addition, the casino records suggest that it met the cost of return flights on 20 and 30 May 1998. While it is not entirely clear, fairness dictates that Mr Oades' estimate of the cost of travel on those two occasions should be deducted from the respondent's expenditure. 21 Otherwise, I accept the figures set out in the schedule to Mr Oades' affidavit. To those there must be added an estimate of the respondent's ordinary living expenses. There is no such figure in Mr Oades' schedule but he provided Household Expenditure Surveys issued by the Australian Bureau of Statistics over the relevant period. On the basis of that material, senior counsel for the Commission proposed an estimate over the six year period based upon a conservative figure of $150 per week, yielding a total of $46,800. Counsel for the respondent made no submission to the contrary, and this also appears to be an acceptable figure. 22 I would ask the parties' legal representatives to undertake the necessary calculations and I shall make a proceeds assessment order in the amount arrived at. If necessary, I shall also hear argument on costs.
Last Modified: 11/17/2003 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.
NSW Crime Commission
Trinh
(1999) 47 NSWLR 309
The Court directed the parties’ legal representatives to calculate the proceeds amount using the accepted figures, subject to the adjustments and addition identified; it would then make a proceeds assessment order, with costs left open.