New South Wales Crime Commission v McDonald

[2018] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v McDonald [2018] NSWSC 626
Hearing dates:	26 April 2018
Decision date:	26 April 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Production orders made.
Catchwords:	CRIMINAL ASSETS RECOVERY – application for production of documents held by solicitor relating to conveyance of interests in property
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW), ss 10A, 33
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (applicant) Tariq McDonald (respondent)
Representation:	Counsel: S Vorreiter (Solicitor for the New South Wales Crime Commission) (ex parte)   Solicitors: New South Wales Crime Commission (applicant)
File Number(s):	2018/76379

Judgment

1. HER HONOUR: This is an application pursuant to s 33 of the Criminal Assets Recovery Act 1990 (NSW) seeking production orders in respect of property tracking documents relevant to the interests in property of Tariq McDonald.

2. The application is made by summons filed in court on behalf of Katie Bourne, an authorised officer of the New South Wales Crime Commission. The application is supported by Ms Bourne's affidavit sworn 24 April 2018 which, in turn, exhibits previous affidavits sworn by her in the proceedings.

3. On 8 March 2018, on the application of the Crime Commission, Latham J made an order pursuant to s 10A of the Act restraining certain property. The evidence before me on the present application establishes that two properties appear to have been purchased in the name of a company and Mr McDonald's sister respectively and that Mr McDonald may have an interest in each of those properties, or at least that there are grounds for suspecting that to be the case.

4. Ms Bourne's affidavit further establishes that she suspects that two lawyers, Toufic Bazouni, and George Bazouni of New South Lawyers, have possession or control of property tracking documents relating to the purchase of those two properties. I should record that no impropriety is to be inferred from that fact; those are the lawyers who acted on the conveyance and it is to be expected that they would, in the ordinary course of performing their professional tasks, have possession of the relevant file.

5. The affidavit also establishes that Ms Bourne suspects Mr McDonald of having engaged in serious crime-related activity and indeed that was the basis of Justice Latham's order.

6. The Crime Commission sought to obtain the documents by notice to the law firm in question by email dated 26 February 2018. Toufic Bazouni, the managing director of the law firm, quite properly responded to the notice raising concerns as to his inability to seek instructions as to the necessary waiver of his client's privilege without breaching a requirement of the Act not to inform any person of the existence of the notice. The Crime Commission subsequently indicated that the Commission no longer required production pursuant to that notice and instead has proceeded to make the present application.

7. I am satisfied that the requirements for the making of such an application are met and that it is appropriate to make the production order sought.

8. I grant leave to the applicant to file the summons in court together with Ms Bourne's affidavit and statement of facts and circumstances. I make order 1 in the form of order provided on behalf of Ms Bourne.

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Decision last updated: 09 May 2018