New South Wales Crime Commission v Dahmoul

[2018] NSWSC 252

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Dahmoul [2018] NSWSC 252

Hearing dates:

27 February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Common Law

Before:

Rothman 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 Akram Dahmoul, including the interest in property in the property specified in Schedule One hereto.

 

(2) Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Akram Dahmoul 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)   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

 

(4) 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 Akram Dahmoul in the property specified in Schedule One hereto.

 

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

 

(6)   Liberty is granted to the Plaintiff and Akram Dahmoul to apply on three (3) days’ notice.

 

(7)   The balance of the summons be listed for directions before the Common Law Registrar at 9.00am on Monday 28 May 2018.

 

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

 

(9) 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.

 (10)   Non-publication of judgment for a period of two weeks from date of decision.

Catchwords:

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

Legislation Cited:

Crimes Act 1900, 193C(1)
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act, s 25(1)

Category:

Consequential orders (other than Costs)

Parties:

New South Wales Crime Commission (Plaintiff)
Akram Dahmoul (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)
Ex parte (Defendant)

File Number(s):

2018/00068088

Publication restriction:

Non-publication of judgment for a period of two weeks from date of decision.

Ex Tempore Judgment

1. HIS HONOUR: In this matter the applicant, the New South Wales Crime Commission (hereinafter “the Commission”), seeks to file in Court the Summons, and rely on it as a matter of urgency instanter. The Commission has been kind enough to provide a copy of the documentation just before the Court convened for the purpose of hearing the application.

2. Leave is granted to file in Court the Summons and rely on it instanter. Leave is also granted to file the affidavit in support thereof, being the affidavit of Jonathan Lee Spark sworn 26 February 2018, and to rely on that affidavit in relation to the proceedings against the defendant.

3. The Commission, in effect, seeks restraining orders pursuant to the terms of s 10A of the Criminal Assets Recovery Act 1990 (“the Act”), in respect of all of the interest and property of the defendant Akram Dahmoul.

4. For the purposes of the application, as earlier stated, the Commission relies upon the affidavit sworn in support on 26 February 2018 by Jonathan Lee Spark. The affidavit establishes, if anyone from this Court needed that established, that Jonathan Lee Spark is an authorised officer for the purposes of the Act, and that he suspects the defendant of having engaged in “serious crime related activity”, namely, deal with the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, being an offence involving money laundering punishable by imprisonment for five years and thus falling within the definition of “serious criminal offence” pursuant to s 6(2)(d) of the Act (hereinafter “the money laundering offence”).

5. The affidavit further establishes that Mr Sparks suspects the defendant of having engaged in the supply of a prohibited drug, methylenedioxymethamphetamine, of an amount not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Thirdly, the affidavit establishes that Mr Sparks suspects the defendant of having engaged in the supply of a prohibited drug, lysergic acid, of an amount not less than the large commercial quantity applicable to that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act. Finally, the affidavit establishes that Mr Sparks suspects the defendant of having engaged in the supply of a prohibited drug, cannabis, of an amount not less than the indictable quantity applicable to that drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. The last three matters are serious criminal offences pursuant to s 6(2)(b) of the Act and thus constitute a “serious criminal activity” for the purposes of the Act. The four matters collectively will be referred to hereinafter as “the offences”.

6. Mr Spark, in his affidavit, gives the grounds for the suspicions. The facts upon which Mr Spark relies are that he has the suspicion that the defendant has engaged in serious criminal related activity, namely, the offences, and that he has been provided with, and accepts, the facts sheet which he annexes to his affidavit, and which describes the suspected serious criminal activities of which Mr Spark suspects the defendant has engaged.

7. Mr Spark has ascertained that the defendant has been charged with the offences, and that there are reasonable grounds for Mr Spark's suspicion that the defendant has engaged in serious crime related activity, namely, the offences.

8. I have read the affidavit of Mr Spark, and I accept that the suspicions of Mr Spark are based on reasonable grounds.

9. The Commission, by its Summons, is also seeking, but not today, an assets forfeiture order pursuant to s 22 of the Act, and an unexplained wealth order pursuant to s 28A of the Act, in respect of the assets and property of the defendant.

10. The affidavit sets out the facts and circumstance upon which the Commission will rely in seeking the said orders against the defendant, namely the orders for an assets forfeiture order and the orders for an unexplained wealth order. It is unnecessary to stipulate what each of those grounds are, but they are made clear by the terms of the affidavit and that which has put to the Court.    

11. In the circumstances, as earlier stated, I am satisfied that the suspicion upon which the authorised officer is acting is a suspicion on reasonable grounds, and I make the orders sought and signed, dated and initialled by me bearing today's date.

12. I also make a non-publication order in relation to persons other than the parties for a period of two weeks from today.

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Decision last updated: 15 March 2018