Application by the New South Wales Crime Commission
[2018] NSWSC 242
•28 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: Application by the New South Wales Crime Commission [2018] NSWSC 242 Hearing dates: In chambers Date of orders: 28 February 2018 Decision date: 28 February 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made.
Catchwords: CRIMINAL - Criminal Assets Recovery Act 1990 - production order sought - orders made Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)Category: Principal judgment Parties: New South Wales Crime Commission Representation: Solicitors:
New South Wales Crime Commission
File Number(s): 2018/68137 Publication restriction: Nil
Judgment
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By summons filed on 23 February 2018, the New South Wales Crime Commission applied ex parte, seeking orders pursuant to s 33(2) of the Criminal Assets Recovery Act 1990 (NSW) (‘the Act’) requiring Michael Ayache of One Group Legal, to produce to an identified officer of the Commission, specified documents in his possession or control relating to Koder Jomaa.
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Section 33 provides:
“33 Making of production order
(1) If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer may:
(a) lay before the Supreme Court an information on oath setting out those grounds, and
(b) apply to the Court, ex parte, for a production order against the person suspected of having possession or control of the document or documents.
(2) The Supreme Court may order the person against whom an application for a production order is made under subsection (1):
(a) except in the case of bankers’ books, to produce to an authorised officer at a specified time, or between specified times, and at a specified place any property-tracking documents that are in the person’s possession or control, or
(b) to make available to an authorised officer, for inspection at a specified time or times, or between specified times, at the place at which they are kept, any property-tracking documents that are in the person’s possession or control.
(2A) A requirement to produce a document that is in electronic form, or to make any such document available for inspection, includes a requirement to produce, or make available, a hard copy form of the document, including the generation of reports or the extraction of data.
(3) In this section:
bankers’ books means any accounting records of a bank used in its ordinary business of banking, and includes ledgers, day-books, cash-books and account books.”
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“Property-tracking document" is defined in s 4 of the Act to mean:
“(a) a document relevant to:
(i) identifying, locating or quantifying any interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or
(ii) identifying or locating any document necessary for the transfer of an interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or
(b) a document relevant to:
(i) identifying, locating or quantifying an interest in property that might reasonably be suspected of being an interest that is serious crime derived property, or
(ii) identifying or locating any document necessary for the transfer of an interest in property that might reasonably be suspected of being an interest that is serious crime derived property.”
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The application is supported by an affidavit sworn on 22 February by Melissa Digby, a forensic accountant and an authorised officer under the Act employed by the Commission, who deposed as to her suspicion that Koder Jomaa had engaged in a serious crime related activity, namely robbery, being armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, a ‘serious criminal offence’ under s 6(2)(d) of the Criminal Assets Recovery Act.
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Ms Digby also suspected that Mr Ayache had possession or control of a property tracking document or documents in respect of Mr Jomaa, given that:
Mr Jomaa is the registered property of a property at Brighton Le Sands; that his lawyers for that purchase were VA Lawyers Pty limited, the name by which One Group Legal Pty Limited, of which Mr Ayache is the principal solicitor and director, was formerly known;
Mr Jomaa is one of three directors of Jomaa Company Pty Ltd and its secretary and sole shareholder and One Group Legal Pty Limited had acted for Mr Jomaa on the sale of shares he had held in another company.
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Annexed to Ms Digby’s affidavit was an affidavit sworn by Ms Bourne, the New South Wales Crime Commission's Director assessments, sworn in August 2017 support of an application for confiscation and unexplained wealth orders under the Criminal Assets Recovery Act. On that application Fagan J made a restraining order under s 10A of that Act, on 3 August 2017, which is still in force.
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I grant leave to file the summons and supporting affidavit relied on by the Commissioner.
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Having considered all of that material, I am satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex parte. I am also satisfied that there are reasonable grounds for the suspicions to which Ms Digby has deposed she holds, that Koder Jomaa has engaged in a serious crime related activity and that Mr Ayache has possession or control of the property-tracking documents Ms Digby has identified, as provided in s 33 of the Act.
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In those circumstances I have concluded that the orders sought, requiring the production of the property tracking documents to Ms Digby should be made.
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I make orders accordingly, in the terms sought.
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Decision last updated: 23 March 2018
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