New South Wales Crime Commission v Malik

[2023] NSWSC 643

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Malik [2023] NSWSC 643

Hearing dates:

7 June 2023

Date of orders:

7 June 2023

Decision date:

07 June 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Pursuant to s 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 s 7 of the Criminal Assets Recovery Act 1990) of Danish Nazir Malik, including the interest in property in the property specified in Schedule One, Schedule Two and Schedule Three hereto.

(2) Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Danish Nazir Malik 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) Pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act 1990 Olesya Berladina shall be examined on oath before a Registrar of the Court concerning the affairs of Olesya Berladina including the nature and location of any property in which Olesya Berladina or Danish Nazir Malik has an interest.

(4) Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Order 2 and 3 above.

(5) Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Danish Nazir Malik in the property specified in Schedule Two and Schedule Three hereto.

(6) Pursuant to s 12(1)(c1) of the Criminal Assets Recovery Act 1990 Danish Nazir Malik shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Danish Nazir Malik, a statement verified by oath of Danish Nazir Malik setting out the particulars sought in Schedule Four hereto.

(7) Liberty is granted to the Plaintiff and Danish Nazir Malik to apply on three (3) days’ notice.

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

(9) These proceedings be listed for mention before the Common Law Registrar at 9:00am on 11 September 2023.

(10) Pursuant to r 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) Funds held in Australia and New Zealand Banking Group account number 01 2226 4230-42093 held in the name of Danish Nazir Malik.

(2) Funds held in Australia and New Zealand Banking Group Account number 01 2226 4230-42245 held in the name of Danish Nazir Malik.

SCHEDULE TWO

Cash in the approximate amount of $129,726 seized by members of the NSW Police Force on 4 August 2022 during the execution of a search warrant at 710/194 Stacey Street, Bankstown NSW 2200, being the residential address of Danish Nazir Malik.

SCHEDULE THREE

(1) 2022 Mercedes Benz C200 with New South Wales registration number ETH80H and registered in the name of Danish Nazir Malik, seized by members of the NSW Police Force on 4 August 2022 during the execution of a search warrant at 710/194 Stacey Street, Bankstown NSW 2200, being the residential address of Danish Nazir Malik.

(2) Miscellaneous luxury watches, jewellery and designer clothing seized by members of the NSW Police Force on 4 August 2022 during the execution of a search warrant at 710/194 Stacey Street, Bankstown NSW 2200, being the residential address of Danish Nazir Malik, including:

a) 1x purple Hublot brand watch;

b) 2x Hublot brand watches;

c) 1x 18k white gold diamond bracelet;

d) 1x silver necklace;

e) 1x gold bracelet;

f) 1x gold necklace;

g) Miscellaneous designer clothing.

SCHEDULE FOUR

(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 s 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 PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining order – ancillary orders – ex parte – orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Crimes Act 1900 (NSW)

Category:

Principal judgment

Parties:

NSW Crime Commission (Plaintiff)
Danish Nazir Malik (Defendant)

Representation:

Counsel:
S Askew (Plaintiff)

Solicitors:
NSW Crime Commission (Plaintiff)

File Number(s):

2023/182147

JUDGMENT

1. The New South Wales Crime Commission (“the Commission”) applied for a restraining order in respect of all interests in property of Danish Nazir Malik (“the defendant”) pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”).

2. In support of the application, the Commission relied upon the affidavit of affirmed by Mr Jiansong Wen of 31 May 2023. In that affidavit, Mr Wen deposed that he is an authorised officer for the purposes of Act; suspects the defendant of having engaged in serious criminal-related activity, namely,

1. Obtain financial advantage by deception or dishonesty contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (“the Crimes Act”);

2. Deal with property reasonably suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act;

3. Participate in criminal group contrary to s 93T(1) of the Crimes Act; and

4. Pervert the course of justice contrary to s 319 of the Crimes Act.

3. Mr Wen gave grounds for his suspicions.

4. The facts and circumstances relied upon by the Commission, as sustained in my view by the affidavits, are that Mr Wen was provided with, and accepted, a police facts sheet that described the suspected serious criminal activity in which Mr Wen suspected the defendant to have engaged in and ascertained that the defendant has been charged with the offence described in the facts sheet.

5. During the application, it was queried how the Court could make an order under s 10A of the Act with respect to Schedule Three to the restraining order, the $100,000 in bail security provided to this Court in a bail hearing in relation to criminal proceedings currently before this Court. It was also queried how the Court could be certain that the moneys held in the bail surety were in fact the moneys provided by the defendant. There was a concern as to whether the money, according to the police facts sheet, was the defendant’s uncle’s money, or the defendant’s money.

6. The Court was temporarily adjourned to allow the Commission to make inquiries. Leave was granted to the Commission to approach the Associate to relist the matter when more information was ascertained.

7. Ultimately, the Commission did not press the include of Schedule Three to the restraining order (namely, the surety funds in the amount of $100,000). The Short Minutes of Order provided were made in Chambers. These are my reasons for making those orders.

8. In my view, there are reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime-related activity, namely, the offences to which I have referred.

9. I also consider that the subject matter of the affidavit to which I have referred, and the facts and circumstances which have been established by it, in my view establish a sufficient and proper basis for the making of the orders sought in the Short Minutes of Order provided to the Court, which I note are less than the full range of orders sought by the Commission in the Summons.

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Decision last updated: 15 June 2023