New South Wales Crime Commission v El Hage

[2018] NSWSC 75

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v El Hage [2018] NSWSC 75
Hearing dates:	07 December 2017
Date of orders:	07 December 2017
Decision date:	07 February 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.
Catchwords:	CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Criminal Code Act 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Ahmad El Hage (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/370345

reasons for Judgment

1. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order.

3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 (NSW) and an affidavit of Jonathon Lee Spark sworn on 14 August 2017. Mr Spark, who is an Executive Director (Financial Investigations) of and a financial investigator with the Commission, deposed that he is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Ahmad El Hage, had engaged in serious crime related activities, namely, conspiring to take part in the supply of prohibited drug (namely cocaine) contrary to s 26 of the Drug Misuse and Trafficking Act 1985 (NSW). It was deposed, and I accept, that the offences so described constitute serious criminal offences pursuant to s 6(2)(b) of the Act.

4. The grounds upon which Mr Spark held his suspicion are set out in his affidavit. In particular, he was provided with and accepted a police fact sheet that described the arrest and charging of the defendant on 8 August 2017 and answers to questions raised with police, namely, Detective Sergeant Eugene de Leon as well as records obtained by the Commission, which included property, financial records and ASIC searches. The police fact sheet described the circumstances surrounding Mr Hage’s arrest and charge for the import of a commercial quantity of border controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) which gives rise to Mr Spark’s suspicions of the suspected serious criminal activity in which Mr Hage engaged.

5. It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspected that the defendant whose interest was the subject of the application has engaged in a serious crime related activity and her affidavit stated the grounds upon which the suspicion was based.

6. There are three further requirements of the provisions of s 10A of the Act which require attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. I am satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Mr Spark's evidence I do not consider such notice should be given having regard to the serious nature of the suspected criminal activity to which Mr Hage is said to be involved.

3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the police fact sheet together with Mr Spark's evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Mr Spark.

7. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate.

8. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property, that is the subject of a restraining order, as to the affairs of the owner including the nature and location of any property in which the owner has an interest.

9. By s 12(1)(c1) the Court may make an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission or NSW Trustee and Guardian, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the Court thinks proper. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act.

10. On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under 12(1) of the Act. I order accordingly.

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Decision last updated: 07 February 2018