New South Wales Crime Commission v Abu-Mahmoud

[2018] NSWSC 1512

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Abu-Mahmoud [2018] NSWSC 1512

Hearing dates:

8 October 2018

Date of orders:

08 October 2018

Decision date:

08 October 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

NON-PUBLICATION ORDERS:

 

Pursuant to s 7 and upon the ground set out in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), there shall be a non-publication order over the judgment and orders made today. The non-publication order is to expire on 22 October 2018.

 

TERMS OF ORDER MADE BY THE COURT:

 

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

 

Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 5 October 2018 there are reasonable grounds for the suspicions stated therein

 

The Court orders:

 

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 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 Mohamed Ghaleb Abu-Mahmoud, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Mohamed Ghaleb Abu-Mahmoud shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

3. Pursuant to section 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 Aliya Abdulwahab shall be examined on oath before a Registrar of the Court concerning the affairs of Mohamed Ghaleb Abu-Mahmoud, including the nature and location of any property in which Mohamed Ghaleb Abu-Mahmoud has an interest.

 

4.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above.

 

5. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Mohamed Ghaleb Abu-Mahmoud in the property specified in Schedule One hereto.

 

6. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Mohamed Ghaleb Abu-Mahmoud shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Mohamed Ghaleb Abu-Mahmoud, a statement verified by oath of Mohamed Ghaleb Abu-Mahmoud setting out the particulars sought in Schedule Three hereto.

 

7.   Liberty is granted to the Plaintiff and Mohamed Ghaleb Abu-Mahmoud to apply on three (3) days’ notice.

 

8.   The balance of the Summons filed in these proceedings be listed for mention before the Common Law Duty Registrar at 9am on 18 February 2019.

 

9.   The costs of obtaining these orders shall be costs in the cause.

 

10. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

 

SCHEDULE ONE

 

1.   Cash in the amount of approximately $2,726 seized by New South Wales Police Force on 2 October 2018 during the search of a Toyota Corolla with New South Wales registration number YDQ34A.

 

2.   Cash in the amount of approximately $50,000 seized by New South Wales Police Force on 2 October 2018 during the execution of a search warrant on Unit D305/17 Hanna Street, Potts Hill New South Wales 2143.

 

3.   Sixteen 1kg gold bullions seized by New South Wales Police Force on 2 October 2018 during the execution of a search warrant on Unit D305/17 Hanna Street, Potts Hill New South Wales 2143.

 

SCHEDULE TWO

 

Funds held in National Australia Bank account number 082-121 513702673 held in the name of Mohamed Ghaleb Abu-Mahmoud.

 

SCHEDULE THREE

 

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

 

(a)   a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

 

(b)   the location of the interest;

 

(c)   the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

 

(d)   the approximate date of acquisition of the interest;
(e)   the source of funds used to acquire the interest.

 

2.   Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

 

(a)   a full description of the liability including the nature of that liability and the amount of that liability;

 

(b)   the name of the person or institution to which the liability is owed.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Criminal Assets Recovery Act 1990 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Mohamed Ghaleb Abu-Mahmoud (Defendant)

Representation:

Counsel:
S Santhikumar (Plaintiff) – Ex parte

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2018/306787

Judgment

1. The plaintiff seeks a restraining order under s10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A and a forfeiture order under s 22 of the Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 5 October 2018. Ms Bourne is an authorized officer of the plaintiff.

2. Section 10A(5) of the Act requires the court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based, and the court considers there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion and belief that the defendant has engaged in serious crime related activity being the supply of a prohibited drug, cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), and dealing with property suspected of being the proceeds of crime, being 16 kilograms of gold bullion with an approximate value of $860,000, contrary to s 193C(1) of the Crimes Act 1900 (NSW). That is an offence punishable by imprisonment of five years involving money laundering. Both of these offences are serious criminal offences pursuant to s6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion principally on reading the facts sheet prepared by the police in preparation for the arrest and charging of the defendant. Ms Bourne sought from the person she understood to be the officer who prepared the fact sheet whether he had, in fact, done so, if to the best of his knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by police as a result of the investigation described in the facts sheet.

5. To each of those questions the police officer answered in the affirmative. He also informed Ms Bourne that the defendant is currently wanted by the police, and will be charged with those offences and others when he is arrested.

6. I have read the facts sheet. I am satisfied that the suspicion held by Ms Bourne that the offences have been committed is reasonably held.

7. The plaintiff asks that the orders be made without prior notice to the defendant particularly because he has not yet been arrested. The plaintiff also bases that application on what is set out in para 8 of Ms Bourne’s affidavit, namely, that in the absence of a restraining order it is possible for people to attempt to dispose of funds held in bank accounts very quickly, and also to dispose of other property, the subject of the restraining orders.

8. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s 10C of the act to review these orders.

9. The plaintiff seeks also that there be a non-publication order in respect of the application and the orders made for a period of two weeks to enable the plaintiff to secure the assets which are referred to in Schedule 1 and 2 of Ms Bourne's affidavit. That application is particularly made because, as I have indicated, the defendant has not yet been arrested. It is appropriate in those circumstances that a non-publication order be made on the ground contained in s8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

10. I note the undertaking given by the solicitor for the plaintiff. On that basis I make orders in terms of paras 1 to 3, 5, 6, 8, 9 and 10 of the draft order provided to me. I grant the leave and liberty contained in paras 4 to 7 of that order. I make a non-publication order of the documents in respect of the present application and the orders that I have made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground referred to in s 8(1)(a). That non-publication order will expire on 22 October 2018.

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Decision last updated: 23 October 2018