New South Wales Crime Commission v Elsheik

[2022] NSWSC 1046

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Elsheik [2022] NSWSC 1046

Hearing dates:

5 August 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

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 Ryan James Bull sworn 2 August 2022, there are reasonable grounds for the suspicion 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 Aleh Elsheikh, 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 Aleh Elsheikh 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 Aleh Elsheikh in the property specified in Schedule One hereto.

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

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

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

8.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on 7 November 2022.

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.

SCHEDULE ONE

Cash in the approximate amount of $1,220,000 seized by members of the NSW Police Force on 9 June 2022 during the execution of a search warrant on Hino Truck with Victorian registration number YHM184.

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)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Aleh Elsheikh (Defendant)

Representation:

Counsel:
M Tam - Ex parte (Plaintiff)

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

File Number(s):

2022/230833

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) pending the making of a forfeiture order under s 22 of the Act and/or a proceeds assessment order under s 27 of the Act, and/or an unexplained wealth order under s 28A of the Act.

2. The summons is supported by an affidavit of Ryan James Bull sworn 2 August 2022. Mr Bull is an authorised officer of the plaintiff as defined in s 4(1) of the Act. 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 that there are reasonable grounds for the suspicion.

3. Mr Bull deposes to having a suspicion and belief that the defendant has engaged in a serious crime related activity, namely, dealing with property suspected of being the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW), being an offence involving money laundering, and punishable by imprisonment for five years. That is a serious criminal offence pursuant to s 6(2)(d) of the Act.

4. Mr Bull bases his suspicion principally on reading a fact sheet prepared by the police involved in the investigation of the defendant. Mr Bull sent an email to the relevant officer, Detective Senior Constable Marty Murmane, asking if SC Murmane was the officer who drafted the fact sheet in respect of the defendant or if the officer was aware of the contents of the fact sheet, whether to the best of the officer's knowledge and belief the contents of the fact sheet were true, and if the fact sheet was prepared on information obtained by police as a result of the investigation described in the fact sheet.

5. SC Murmane replied to all of Mr Bull's questions in the affirmative, and also confirmed that charges against the defendant of dealing with property the proceeds of crime to the value of $100,000 or more and recklessly dealing with the proceeds of crime were before the Court.

6. I have read the fact sheet annexed to the affidavit of Mr Bull, and as a result I am satisfied that the suspicion held by Mr Bull that the offence was committed is a reasonably held belief.

7. The plaintiff asks that the orders be made without prior notice to the defendant, and does so on the basis of Mr Bull's knowledge about the way property may be disposed of at short notice. 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 s 10C of the Act to review those orders.

8. The plaintiff also seeks an order pursuant to s 10B(2) of the Act that the New South Wales Trustee and Guardian should take control of the interests of the defendant in the properties specified in schedule 1 to the summons. Given the nature of that property, I consider it is appropriate that such an order should be made.

9. I note the usual undertaking as to damages is given on behalf of the plaintiff. I make orders in terms of paragraphs 1, 2, 4, 5, 7 and 9 of the draft order. I grant the leave and liberty contained in paragraphs 3 and 6.

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Decision last updated: 05 August 2022