New South Wales Crime Commission v Al Deleymi

[2023] NSWSC 394

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Al Deleymi [2023] NSWSC 394

Hearing dates:

29 March 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(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 Hasheem Jamal Abood Al Deleymi, including the interest in property in the property specified in Schedule One and Schedule Two hereto (“the restraining order”).

(2) Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Hasheem Jamal Abood Al Deleymi, or any other person, to deal with the interest in property of Hasheem Jamal Abood Al Deleymi in:

(a)   Item 1 of Schedule One hereto in the ordinary and proper course of business of Sumer Market; and

(b)   Item 2 of Schedule One hereto in the ordinary and proper course of business of Bun Dy Tobacconist & Vapes,

including paying business expenses, bona fides and reasonably incurred, on the condition that Hasheem Jamal Abood Al Deleymi provide to the Plaintiff within 7 days of the end of each calendar month commencing 31 March 2023 a statement of account evidencing the payment of business expenses in according with this Order.

(3) Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Hasheem Jamal Abood Al Deleymi 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.

(4) Leave be granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 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 Hasheem Jamal Abood Al Deleymi in the property specified in Schedule Two hereto.

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

(7) Liberty is granted to the Plaintiff and Hasheem Jamal Abood Al Deleymi to apply on three (3) days’ notice.

(8) The costs of obtaining these orders shall be costs in the cause.

(9) These proceedings be listed for mention before the Common Law Registrar at 9:00am on 10 July 2023.

(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) Funds held in the Commonwealth Bank of Australia account 269242679601 held in the name of Hasheem Al Deleymi Trading as Sumer Market.

(2) Funds held in the Commonwealth Bank of Australia account 269270934462 held in the name of Hasheem Al Deleymi Trading as Bun Dy Tobacconist & Vapes.

(3) 1 ordinary share in SM Tobacco & Gift Pty Ltd A.C.N. 664 809 590.

SCHEDULE TWO

Cash in the amount of approximately $530,000 seized by NSW Police Force on 10 March 2023 during the search of a sliver Ford Ranger with Queensland registration 891BF5 driven by Hasheem Jamal Abood Al Deleymi.

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.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 – proceeds of crime – ex parte – orders made.

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(1)

Criminal Assets Recovery Act 1990 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 36.4(1)(a)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Hasheem Hamal Abood Al Deleymi (Defendant)

Representation:

Counsel:
S Askew (NSW Crime Commission)

Solicitors:
New South Wales Crime Commission

File Number(s):

2023/102002

JUDGMENT

1. By a Summons filed in Court, the New South Wales Crime Commission sought various forms of relief under the Criminal Assets Recovery Act 1990 (NSW), set out in Short Minutes of Order provided to the Court.

2. Having regard to the evidence of Jiansong Wen, and in particular, paragraphs [9] and [10] of his affidavit, it is my view that there is a proper basis for the Court to proceed with respect to the present application for a restraining order and related orders ex parte and instanter before the Court, in its duty list.

3. The facts and circumstances relied upon by the Commissioner, as I will now describe, are, in my view, supported by the affidavit filed in support of the application. So far as the Court is required to reach requisite satisfaction, and to identify that there are reasonable grounds for a suspicion, I consider that the facts and circumstances so described are supported by the evidence before the Court in the form of the affidavit of Jiansong Wen.

4. It was stated in the Statement of Facts and Circumstances relied on in support of the restraining order, pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) that the affidavit of Mr Wen establishes that he is an authorised officer for the purposes of the Act, and that he holds a suspicion that Mr Al Deleymi has engaged in a serious crime related activity, namely, deal with property suspected of being the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW); and two, gives grounds for Mr Wen's suspicions.

5. The facts and circumstances on which the Commissioner relies in its application for the restraining order, and which I have found are satisfied to the requisite extent by the affidavit in question, are:

1. Mr Wen suspects Mr Al Deleymi of having engaged in serious crime related activity, namely, the offences that I have described.

2. Mr Wen has been provided with and accepts a New South Wales Police Force facts sheet that describes a suspected serious criminal activity in which Mr Wen suspects Mr Al Deleymi to have engaged.

3. Mr Wen has ascertained that the defendant has been charged with the offences described on the facts sheet; and

4. There are reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime related activity.

6. In the circumstances, the Court has before it a proper basis to make the restraining order and related orders, as sought in the Short Minutes of Order which have been provided to the Court for the purpose of these proceedings.

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Decision last updated: 19 April 2023