New South Wales Crime Commission v El-Samad

[2021] NSWSC 835

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v El-Samad [2021] NSWSC 835

Hearing dates:

9 July 2021

Date of orders:

9 July 2021

Decision date:

09 July 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 7 July 2021, there are reasonable grounds for the suspicions stated therein

The Court orders:

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 Mohamad El-Samad, 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 Mohamad El-Samad 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 Mohamad El-Samad shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Mohamad El-Samad, a statement verified by oath of Mohamad El-Samad setting out the particulars sought in Schedule Two hereto.

5.   Liberty is granted to the Plaintiff and Mohamad El-Samad to apply on three (3) days’ notice.

6.   The costs of obtaining these orders shall be costs in the cause.

7.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on 18 October 2021.

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.

SCHEDULE ONE

1.   The whole of the property described as Lot 12 in Deposited Plan 501956 at Guildford, Local Government Area Cumberland, Parish of Liberty Plains, County of Cumberland also known as 64 Lough Avenue, Guildford NSW 2161 and registered in the name of Mohamad El-Samad.

2.   1 beneficially held ordinary share in Delilahs Logistics Pty Ltd.

3.   100 beneficially held ordinary shares in Le Gallery Cafe Pty Ltd.

SCHEDULE TWO

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 LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1990 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Drug (Misuse and Trafficking) Act 1985

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Mohamad El-Samad (Defendant)

Representation:

Counsel:
S Santhikumar - Ex parte (Plaintiff)

Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2021/195540

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of orders under section 27 and 28A of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 7 July 2021. Ms Bourne is an authorised officer of the plaintiff. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based, and the Court considers there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime-related activity, being knowingly taking part in the supply of a prohibited drug (cannabis) of an amount not less than the large commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and participating in a criminal group contrary to section 93T(1) of the Crimes Act 1900 (NSW). Both of these offences are serious criminal offences under section 6 of the Criminal Assets Recovery Act.

4. Ms Bourne basis her suspicion principally on reading the Facts Sheet prepared by the police in preparation for the appearance in Court of the defendant. Ms Bourne sent an email to Detective Sergeant Steven Hudson asking him these questions:

(a)   Was he the officer who drafted the Facts Sheet or was he aware of the contents of the Facts Sheet?

(b)   To the best of his knowledge and belief, were the contents of the Facts Sheet true?

(c)   Was the Facts Sheet prepared on information obtained by the police as a result of the investigation described in the Facts Sheet?

5. To each of those questions, Detective Sergeant Hudson answered in the affirmative.

6. I have read the Facts Sheet, and the other documents attached to Ms Bourne's affidavit. I am satisfied that the suspicion held by her that the offences had been committed is reasonably held.

7. The plaintiff also seeks an order that the present restraining order be made without prior notice to the defendant. It does so based on Ms Bourne's experience at the Commission of the ease with which the operation of the Act may be defeated by the granting of unregistered mortgages, and otherwise by the ability of persons to dispose of assets in an expeditious fashion.

8. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under section 10C of the Act to review the orders.

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Decision last updated: 09 July 2021