New South Wales Crime Commission v Elsage
[2014] NSWSC 1648
•19 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Elsage [2014] NSWSC 1648 Hearing dates: In Chambers Decision date: 19 November 2014 Jurisdiction: Common Law Before: Schmidt J Decision: (1)The orders be served on the other tenant in common and joint tenants of the Austral property.
(2)They have liberty to apply to the Court on three days' notice.
(3) That a copy of these reasons be served with the orders.
Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: 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)
Ryad Elsage (also known as Riad Elsaj and Ryad El Sage)Representation: Solicitors:
New South Wales Crime Commission
File Number(s): 2014/341855 Publication restriction: None
Judgment
By summons of 19 November 2014, the New South Wales Crime Commission applied ex-parte, seeking restraining orders pursuant to s 10A of the Criminal Assets Recovery Act1990 (NSW) ("the Act") in relation to the interest in property of the defendant, Ryad Elsage, also known as Riad Elsaj and Ryad El Sage. Ancillary orders under s 12(1) of the Act were also sought, as well as orders under s 10B and s 27.
The application is supported by an affidavit sworn on 19 November 2014 by Jonathan Lee Spark, the Commission's Director, Financial Investigations 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). I grant leave to file the summons, the affidavit and statement of facts relied on.
For the reasons which follow, I am satisfied that the orders sought should be made, together with the orders which appear at the conclusion of this judgment.
The property sought to be restrained is identified in schedules to the summons. It includes one property located at Casula and another located at Green Valley, of which the defendant is the registered proprietor, as well as a third property located at Austral, of which he is one of the tenants in common (schedule one to the summons). It also includes funds held in an accounts belonging to Mr Elsage held in the Australia and New Zealand Banking Group Limited (schedule two to the summons) and a Harley Davidson and a Lamborghini, which are registered in his name (schedule three to the summons).
The particulars sought to be provided by Mr Elsage under s 12(1)(c1) appear at schedule four of the summons.
Mr Spark deposed that he suspected that Mr Elsage had engaged in serious crime related activities within the definition of "serious criminal offences" in s 6 of the Act, namely, supplying a prohibited drug (3,4-Methylenedioxymethylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
Mr Spark gave a detailed explanation of the basis upon which he came to hold this suspicion. It rested on a consideration of a Police Facts Sheet prepared by Senior Constable Smithers of the New South Wales Police Force in relation to Mr Elsage's anticipated arrest on 20 November; answers provided to questions he asked of Senior Constable Smithers about the Facts Sheet; information obtained from searches conducted by Crime Commission officers on the COPS, RMS and LPI databases and information provided by ANZ.
Amongst other things these searches disclosed the value of the Lamborghini on ownership records disclosed to be $50,000, while the website disclosed advertisements for similar models (second-hand) for prices ranging from $149,990 to $158,000.
The Facts Sheet disclosed that Mr Elsage has come to the attention of a strike force established to investigate the supply of MDMA, as being involved in the supply of prohibited drugs. Investigators have lawfully intercepted various telephone communications in August and September 2014 between Mr Elsage and his co-accused in which it is alleged that he agreed to supply various amounts of MDMA tablets, which he later supplied to the co-accused, as arranged.
Mr Spark deposed that he believed the circumstances to require that the New South Wales Police be authorised to seize and take possession of the property specified in schedules two and three to the summons and that the New South Wales Trustee and Guardian take control of all of Mr Elsage's interest in the Lamborghini, for which the Police did not have facilities for long term storage.
Mr Spark deposed to his experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in respect of real estate, to dispose of motor vehicles or backdate forms notifying RMS of the disposal and to dispose of funds held in bank accounts very quickly, in order to defeat the operation of the Act. He also deposed to his view that if the Lamborghini were returned to Mr Elsage, it may be concealed or disposed of.
Given the serious nature of the criminal activity in which Mr Elsage is apparently involved, Mr Sparks deposed that he believed that Mr Elsage should not be given notice 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.
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 Mr Spark has deposed.
I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark 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. In the circumstances, it is also appropriate to make the ancillary orders sought.
On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex-parte. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permit 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.
Given that Mr Elsage is but one of the tenants in common of the Austral property, of which there are also joint tenants, I take the view that the orders which I propose to make should also be served upon the other tenant in common and the joint tenants of that property and that they, too, should be given liberty to apply to the Court on three days' notice. In coming to that view, I have had regard to their rights under s 10C of the Act.
Orders
I accordingly make orders in the terms sought and also order and direct that:
(1) The orders be served on the other tenant in common and joint tenants of the Austral property.
(2) They have liberty to apply to the Court on three days' notice.
(3) That a copy of the reasons be served with the orders.
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Decision last updated: 21 November 2014
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