In the matter of Al Shamari

[2022] NSWSC 1466

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the Commissioner of the Australian Federal Police; In the matter of Al Shamari [2022] NSWSC 1466

Hearing dates:

11 October 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Restraining orders and ancillary orders made pursuant to Proceeds of Crimes Act 2002 (Cth)

(2) Suppression orders to apply until 24 October 2022

Catchwords:

PROCEEDS OF CRIME – orders restraining disposal of property – orders for disclosure of assets and liabilities – orders for custody and control of restrained property – whether appropriate to deal with application in closed court and ex parte – fraud on NDIS – deception – proceeds of crime – potential disposal of tainted property – urgent application

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 71(a), 71(b)

Court Suppression and Non‑publication Orders Act 2010 (NSW), ss 6, 8(1)(a)

Criminal Code Act 1995 (Cth), ss 134.1, 400.9

Proceeds of Crime Act 2002 (Cth), ss 18, 18(1)(a), 18(1)(b), 18(1)(c), 18(3), 18(1)(e), 26(4), 26(5), s 38, 39B

Uniform Civil Procedure Rules 2005 (NSW), rr 6.15, 18.2(2)

Cases Cited:

Commissioner of the Australian Federal PolicevHe (2021) NSWSC 1455

Category:

Principal judgment

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Wafaa Al Shamari (Defendant)

Representation:

Counsel:
M Short (Plaintiff)

File Number(s):

2022/303173

EX TEMPORE JUDGMENT (revised)

1. The Commissioner of the Australian Federal Police (“the Commissioner” or “the plaintiff”) has today been granted leave to file in Court a summons and supporting affidavit seeking various orders under the Proceeds of Crime Act 2002 (Cth) (“the Act”) and the Court Suppression and Non‑publication Orders Act 2010 (NSW).

2. Prior to the commencement of the hearing, I was satisfied based on the material provided informally in advance, that it was appropriate to close the Court and hear the application in camera. This is due to the nature of the orders sought and the potential that the objective of the orders, if granted, would be thwarted if knowledge of these orders were acquired by the person who is targeted.

3. The application is for orders restraining the disposal of property said to be the proceeds of crime. These orders are sought under s 18 of the Act. A number of ancillary orders are also sought. These include orders for the custody and control of the property to be restrained, and orders for the compulsory provision of information relating to the assets and liabilities of the defendant. I have considered ss 26(4) and (5) of the Act, and for the reasons I have closed the Court. I will ultimately make orders under the Court Suppression and Non‑publication Orders Act. I am also satisfied it was appropriate to deal with this matter on an ex parte basis. I do not think it is necessary in the circumstances to explain the reasoning behind this further.

4. The urgency of the application derives from the fact that the defendant is the owner of certain real estate, named in the material provided this afternoon. The plaintiff has information that there has been an agreement to sell the property and the settlement of that sale is imminent. I have been told that settlement could have taken place as early as yesterday, but it has not taken place yet. It may take place or is scheduled to take place essentially now, so time is ticking. That is why the Court is sitting at a quarter to five in order to deal with the matter on an urgent basis.

5. The affidavit of Mr James Michael Paterson establishes to my mind the prerequisites for the making of the various orders sought. It sets out, in summary form in the narrative provided in the affidavit and in a far more detailed form in the supporting documentation in exhibit JP1, what might be described as a “scheme” to defraud the National Disability Insurance Scheme (“NDIS”) by the establishment and operation of five or so nominated companies, which make claims on what appear to be legitimate stakeholders, users and recipients of NDIS funding. The affidavit sets out in little detail the way that scheme is suspected to operate.

6. Mr Short, who appears for the Commissioner this afternoon, took me to a couple of examples within the material in order to make good the argument that there are reasonable grounds to suspect the defendant, or in any event a person, has committed a serious offence.

7. Examples include that Mr Anjan Kumar Dam, the person nominated as a director of the first named company, iCare Disability Services Pty Ltd, has provided a statement to the investigating Federal Police indicating he knows nothing about iCare, he is not a director of any company and does not know the defendant. [1]  Similarly, and unrelatedly at least on the facts except insofar as they are connected through the defendant, is evidence from Salah Korial Esho. Mx Esho indicates that they are a user of NDIS. The evidence demonstrates a company called Advanced Accessibility Services Pty Ltd has made claims through Mx Esho. NDIS accounts for large sums of money, I think $150,000. Yet, Mx Esho has never heard of that organisation according to their statement, and certainly has not received any relevant services from them. [2]

   1. Affidavit, James Michael Paterson, 11 October 2022 at [32].

   2. Ibid at [93]-[94].

8. There are, littered throughout the affidavit of Mr Paterson and supported by the volume of material in the exhibit, many examples of similar situations. In terms of what I need to be satisfied under s 18 of the Act, it mandates that I make restraining orders. I am satisfied of s 18(1)(c), namely that a proceeds of crime authority is applying for the order, there being no doubt that the Commissioner is such an authority. Based on my reading and understanding of the material in Mr Paterson’s affidavit and its supporting documentation, notwithstanding the brevity with which I have acquired that knowledge, I am satisfied there are reasonable grounds to suspect a person, and indeed specifically the named defendant, has committed a serious offence and probably more. The offences in question are both offences under s 134.1 of the Criminal Code Act 1995 (Cth), described generally as obtaining property by deception, and proceeds of crime offences under s 400.9 of the Criminal Code, in amounts exceeding $100,000. I mention the Esho case, specifically the acquisition of $130,000 or $150,000. There was also an acquisition of $123,000 through a company known as Future Founders Community Services Pty Ltd. I am satisfied there are reasonable grounds to suspect proceeds of crime offences exceeding that amount under s 400.9.

9. There are some affidavit requirements in subs (3) of s 18 of the Act, or there is one in this particular case, and I am satisfied for the purpose of s 18(1)(e) that those requirements have been met. Based on Mr Paterson's affidavit, I am satisfied he is an authorised officer, he made the affidavit, and he holds the suspicions that he says he holds, which are more or less the same as those I have already said I hold based on this evidence. I am satisfied he holds them on reasonable grounds.

10. Those conclusions mean that s 18(1) dictates I must make orders under subss (a) or (b), and I will. I am also satisfied it is appropriate to make the “custody and control orders” as described by Mr Short, pursuant to s 38, whereby any property restrained by the orders under s 18 is to be controlled by the official trustee.

11. The next question is whether or not the orders sought requiring the defendant to make sworn statements of her property interests should be made. The issue has been ventilated as to whether or not those orders are necessary or should be subject to the same form of ex parte hearing, given the potential that the making of such orders might have some effect on, or infringe, a citizen’s right against self‑incrimination. I accept Mr Short’s two‑pronged response to the questions I asked in that regard, namely, the Act allows for a person subject to such orders to make an application that those orders be revoked before they comply with the orders, by providing a sworn statement of their interests in the property. That power or right derives from s 39B of the Act. I propose to add to the orders sought a notation to that effect.

12. But additionally, I am satisfied that the form of those orders, originally made by Wilson J in the case of the Commissioner of the Australian Federal Police v He (2021) NSWSC 1455 at [12] and which I was persuaded to employ, are appropriate, which essentially prohibit disclosure of material to other investigators. I will put it like that, and the form of order really speaks for itself. It provides the sort of protection against the use of such information in criminal prosecutions. Without any resistance from the Commissioner, I propose to add that form of order to the orders sought.

13. The circumstances as I have outlined probably makes it redundant to say that it is necessary, as that expression is used in the New South Wales Court Suppression and Non‑publication Orders Act, [3] to prevent prejudice to the proper administration of justice by ordering that that what has happened here this afternoon, the evidence that has been tendered and relied upon, any transcript that is produced, and any orders that I make should be subject to a non‑publication order for a period, and the nominated date is 24 October 2022. I think it is not necessary to go further than that, but it is and will form part of the orders that it is in the public interest to make the order and that public interest significantly outweighs the public interest in open justice, noting again those things I said at the very outset, and which justified the closing of the Court and the conducting of the case ex parte.

    3. See ss 6, 8(1)(a) of the Act.

14. I will make, subject to a brief discussion I will now have with counsel, orders in accordance with the short minutes of order with some amendments. [4] Importantly, the orders are to be entered forthwith. [5]

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4. His Honour at this point of the ex tempore judgment proceeded to discuss with counsel the form of, and amendments to, the orders proposed.

5. For orders see the court file.

Endnotes

Decision last updated: 26 October 2022