New South Wales Crime Commission v Chandab

[2018] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Chandab [2018] NSWSC 213
Hearing dates:	On the papers
Date of orders:	23 February 2018
Decision date:	23 February 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders in terms sought made.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Mazen Chandab (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2018/6328
Publication restriction:	Nil

Judgment

1. By summons which I granted leave to file, the New South Wales Crime Commission applied ex-parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW), in relation to the interest in certain property of the defendant, Mazen Chandab. Other orders under ss 12(1) and 10B, 22 and 28A of the Act were also sought. The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1).

2. The application was supported by an affidavit sworn on 18 April 2017 by Katie Elaine Bourne, the Commission’s Director (Assessments) and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

3. For the reasons which follow, I am satisfied that the orders sought should be made.

4. The property sought to be restrained is identified in schedules to the summons as real property located at Dural registered in the name of Mr Chandab and Belinda Blanche Lee as joint tenants; as well as vehicles registered in Mr Chandab’s name; funds held in Westpac Bank accounts in his name and that of Ms Lee; and cash of some $126,460 seized on the execution of a search warrant at the address at Dural and a vehicle parked there.

5. Ms Bourne deposed that she suspected that Mr Chandab had engaged in serious crime related activity within the definition of a “serious crime related activity” in s 6 of the Criminal Assets Recovery Act, namely, supplying prohibited drugs, cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and dealing with the proceeds of crime with a value of $100,000 or more, contrary to s 193C of the Crimes Act 1900 (NSW) and dishonestly obtaining a financial advantage, contrary to s 192E of that Act.

6. Ms Bourne there also gave a detailed explanation of the basis upon which she came to hold those suspicions. They rested on a consideration of documents obtained by employees of the Commission, including a Facts Sheet received from Senor Constable Hitchen; questions which Ms Bourne posed to the Senior Constable and responses which he gave; as well as searches conducted of the records held in the COPS database, which showed that on 31 January 2018, Mr Chandab had been charged with the offence specified in the Facts Sheet, which was annexed to the affidavit.

7. Ms Bourne also had regard to information obtained as the result of searches conducted of the LRS, SAI, and RMS databases in relation to the property of Mr Chandab.

8. Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in relation to real estate very quickly; to dispose of motor vehicles or backdate forms notifying the RMS of disposal of such vehicles; and to dispose of funds held in bank accounts, in order to defeat the operation of the Act.

9. She also deposed to her view that, given the serious nature of the criminal activity in which Mr Chandab is apparently involved, that notice should not be given of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.

10. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Ms Bourne has deposed.

11. In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Ms Bourne has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made.

12. In the circumstances, I have concluded that it was also appropriate to make the other orders sought.

13. I have reached those conclusions after consideration of the material relied on, including what was disclosed in the Facts Sheet, as to which Ms Bourne deposed that she believed in the truth of its contents.

14. That document revealed that as well as the basis of the financial benefit by deception charge, which relates to an insurance policy, in October 2017, a search of Mr Chandab’s vehicle, located some 634.7 grams of cocaine hidden there, as well as a loaded firearm. When arrested and charged in January 2018, cash was located hidden in various parts of his house and vehicle. The Facts sheet explains the accounts which he gave for being in possession of this money and the basis of police suspicions that it was the proceeds of crime, given his possession also of a commercial quantity of cocaine.

15. All of these matters, I am satisfied, provide a proper basis for the making of the orders sought.

16. On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application to Mr Chandab or Ms Lee and that it should be dealt with ex-parte.

17. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.

ORDERS

18. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Mr Chandab and Ms Lee.

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Decision last updated: 21 March 2018