New South Wales Crime Commission v El Masri

[2018] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v El Masri [2018] NSWSC 255

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

 

(5)   Liberty is granted to the Plaintiff and Ahmad El Masri to apply on three (3) days’ notice.

 

(6)   The balance of the summons be listed for directions before the Common Law Registrar at 9:00am on Monday 28 May 2018.

 

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

 

(8) 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.

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

Catchwords:

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

Legislation Cited:

Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985, s 25(1)
Crimes Act 1900, s 193B(2)

Category:

Consequential orders (other than Costs)

Parties:

New South Wales Crime Commission (Plaintiff)
Ahmad El Masri (Defendant)

Representation:

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

File Number(s):

2018/00068078

Publication restriction:

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

EX TEMPORE Judgment

1. HIS HONOUR: The New South Wales Crime Commission (hereinafter the Commission), has provided the Court, as presently constituted, with documents prior to coming into Court. Those documents and the Commission make clear that the Commission seeks by a Summons to proceed against the defendant Ahmad El Masri.

2. Leave is granted to the Commission to file in Court and to rely upon the Summons instanter. The Summons seeks orders immediately under s 10A of the Criminal Assets Recovery Act 1990 (the Act). Leave is also granted to file in Court the affidavit of Katie Elaine Bourne in support of the said Summons sworn 26 February 2018

3. As anyone dealing with these matters would know, s 10A of the Act is a restraining order preventing the dealings in the property described in the schedule to any such order. The Commission seeks orders under s 10A against the defendant in relation to interest in property which are described.

4. As already stated, the Commission relies upon the affidavit sworn in support of its application, being the application of Katie Elaine Bourne sworn 26 February 2018.

5. That affidavit establishes that Ms Bourne is an authorised officer for the purposes of the Act, and suspects the defendant of having engaged in serious crime related activity, namely, the supply of a prohibited drug, methylamphetamine, of an indictable quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 being an offence falling within the definition of serious crime related activity pursuant to the terms of s 6(2)(b) of the Act. The affidavit further establishes that Ms Bourne suspects the defendant of having engaged in the serious crime related activity of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900, being an offence punishable by imprisonment for five years involving money laundering and thus falling within the definition of serious criminal offence pursuant to s 6(2)(d) of the Act. Hereinafter those two offences will be referred to collectively as the offences.

6. Ms Bourne gives the grounds for her said suspicions, and the Court is of the view and is satisfied that the grounds for Ms Bourne's said suspicions are reasonably based.

7. One of or some of the facts and circumstances upon which the Commission relies in its application for a restraining order are the very fact of the suspicion of the defendant of having engaged in serious crime related activity, namely, the offences. Further, the Commission relies on the fact that Ms Bourne has been provided with and accepts a police facts sheet, being a facts sheet dated 19 December 2016, which accords with the date of arrest of the defendant.

8. The Commission also relies on the fact that Mr El Masri, the defendant, has been charged with the offences in the facts sheet, and the Court has been provided with court attendance notices that include the offences to which I have earlier referred and some other offences.

9. As already stated, there are reasonable grounds for the suspicion that Ms Bourne holds and to which she attests that the defendant has engaged in serious crime related activity.

10. For a matter of abundant caution, I note that by its Summons the Commission is also seeking in respect of the defendant an unexplained wealth order pursuant to the terms of s 28A of the Act. The facts and circumstances upon which the Commission relies for the purposes of that unexplained wealth order are set out for an inference of necessary intendment in the affidavit upon which the Commission relies, and it is unnecessary, given that I am not making such an order at this point in time, for the Court to adumbrate each of the grounds upon which the Commission relies in relation to each order or proposed order under s 28A of the Act.

11. For the reasons already stated, I am satisfied that the jurisdictional basis for the making of an order under s 10A of the Act has been established, and I am satisfied that it is both necessary and appropriate for the order to be made. I make orders in the terms of the orders provided to the Court and dated, initialled and signed by me today's date. Those orders may be entered forthwith.

12. I also issue a non-publication order of the orders and transcript of these proceedings for a period of two weeks from today's date.

**********

Decision last updated: 15 March 2018