Commissioner of the AFP v Tradieh

[2023] NSWSC 393

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the AFP v Tradieh [2023] NSWSC 393

Hearing dates:

13 April 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Orders made for examination

Catchwords:

CRIMINAL LAW – proceeds of crime – examination orders relating to restraining orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth), s 180

Taxation Administration Act 1953 (Cth), s 308-125

Category:

Procedural rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Ammar Assaad Tradieh (Defendant)

Representation:

Counsel:
M Short (Plaintiff)

Solicitors:
Australian Federal Police (Criminal Assets Litigation Team)

File Number(s):

2022/161182

eX TEMPORE JUDGMENT

1. This is an application made by the Commissioner for the Australian Federal Police for a compulsory examination order under the provisions of s 180 of the Proceeds of Crime Act 2002 (Cth) for the examination of certain persons. The application is made by way of notice of motion filed on 3 April 2023. There were two respondents to the application, the first being Mr Anwar Tradieh and the second being Ms Fatima Darwich. The defendant is a person who has been convicted of an offence contrary to the provisions of s 308-125 of the Taxation Administration Act 1953 (Cth) in relation to the illicit manufacture of tobacco. He has been sentenced in the District Court by Latham ADCJ. He is the suspected person in respect of whose activities the original application was made in this Court for restraining orders which were made by Davies J on 3 June 2022.

2. I have had the benefit of very helpful written submissions prepared by Mr Short of counsel in relation to the matter. He has also explained to me that due to the shortness of time available for the examination to take place, having regard to the arrangements that have been made in that regard, that he seeks the order in relation to Ms Darwich today, but he cannot proceed with the application against the first respondent today because the three day period for service under the rules has not yet expired in respect of him.

3. I am satisfied from the affidavit of service of Quentin Portis sworn on 11 April 2023 that Ms Darwich was served on 5 April 2023 and that she has had an appropriately reasonable opportunity to appear today in answer to the summons and to voice any opposition she may have to the orders being made. I am also satisfied that as she is the spouse or de facto partner of the defendant therefore she is a person in respect of whom the Court has power to make the order for examination.

4. It is not necessary for me to go through all of the matters that Mr Short has very appropriately and helpfully raised with me. I am satisfied that the making of an examination order is discretionary and that the discretion should be exercised judicially, having regard to the objects of the legislation which are set out.

5. I am satisfied that the defendant, who is the husband of Ms Darwich, is a person who satisfies the criteria in paragraphs (a) and (b) of s 180(1) and that it is appropriate that an order be made in the terms sought by Mr Short that she be examined in relation to the affairs of herself, the first respondent and Ammar Tradieh. The first respondent is the cousin of the defendant, Ms Darwich’s partner, and the evidence before me based on the affidavit of Special Member O'Rourke sworn on 5 April 2023 satisfies me that Mr Tradieh has property at what is referred to as the Bulga property of the defendant and second respondent. The evidence suggests that Ms Darwich has spent a considerable period of time at the Bulga property. I am satisfied that she is likely to have information about her own affairs of course but also those of her husband and of her husband's cousin.

6. It does seem to me that there is a real chance, based on the evidence of Mr O'Rourke, that each of those categories might well be relevant to the proper enforcement of the Commonwealth's rights under the Proceeds of Crime Act and accordingly it is appropriate to make the order in the form sought.

7. Obviously, property held by the second respondent herself may well be jointly held and the defendant may have an interest in it. It may also be the case that in determining or identifying the property of the defendant or property under his control it could be necessary to exclude any innocent interest of the first respondent in property located at the Bulga property, given the evidence of Mr O'Rourke.

8. For these reasons I will make an order in accordance with the Short Minute of Order handed up by Mr Short and signed by me.

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Decision last updated: 19 April 2023