New South Wales Crime Commission v Mousavi

[2022] NSWSC 1325

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Mousavi [2022] NSWSC 1325

Hearing dates:

30 September 2022

Date of orders:

30 September 2022

Decision date:

30 September 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 affirmed 20 September 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 Eshrat Shams Mousavi, 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 Eshrat Shams Mousavi shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she 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 Eshrat Shams Mousavi in the property specified in Schedule One hereto.

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

6.   Liberty is granted to the Plaintiff and Eshrat Shams Mousavi 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 13 February 2023.

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 $619,155 seized by members of the Australian Federal Police on 30 March 2022 during a search of the residential premises located at Unit 20, 73-75 Mountford Ave, Guildford NSW 2161 and a vehicle bearing registration YBZ21X.

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)

Criminal Code 1995 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Eshrat Shams Mousavi (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

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

File Number(s):

2022/292037

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) 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 20 September 2022. Mr Bull is an authorised officer of the plaintiff as defined in s 4(1) of the Act.

3. 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.

4. Mr Bull deposes to having a suspicion that the defendant has engaged in serious crime-related activity, namely dealing with property suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW), being an offence punishable by more than five years imprisonment involving money laundering. Such an offence falls within the definition of "serious criminal offence" pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

5. Mr Bull bases his suspicion principally on reading a facts sheet prepared by the police involved in the investigation of the defendant. Mr Bull, on 2 September 2022, forwarded an email to Detective Senior Constable Thomas Martin of the Australian Federal Police, whom Mr Bull understood to be the officer in charge of the investigation into the defendant. Mr Bull asked Senior Constable Martin if he was the officer who drafted the facts sheet, or if he was aware of the contents of the facts sheet. Senior Constable Martin said that he was aware of the contents of the facts sheet.

6. Mr Bull also asked if, to the best of Senior Constable Martin's knowledge and belief, the contents of the facts sheet were true and if the facts sheet was prepared on information obtained by police as a result of the investigation. Senior Constable Martin answered in the affirmative to those questions.

7. Senior Constable Martin also advised Mr Bull that a charge of dealing in proceeds of crime, contrary to s 400.9 of the Criminal Code 1995 (Cth) was due to be certified at the time Senior Constable Martin provided the information to Mr Bull.

8. I have read the facts sheet in the matter and, as a result, I am satisfied that the suspicion held by Mr Bull that the equivalent State offence to that with which the defendant was charged under the Commonwealth Criminal Code has been committed and that Mr Bull's suspicion is a reasonably held one.

9. The plaintiff asks that orders today be made without prior notice to the defendant. That request is based on what appears in paragraph 6 of Mr Bull's affidavit that, in the absence of a restraining order, it is possible for people to attempt to dispose of interests in property very quickly.

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

11. The plaintiff also seeks an order pursuant to s 10B(2) of the Act that the NSW Trustee & Guardian should take control of the interest of the defendant in the cash referred to in schedule 1 to the summons. Given the nature of the property and particularly to the fact that, if the money is not held by the NSW Trustee & Guardian, it will not earn any interest pending the making of final orders, I consider it is appropriate that such an order should be made.

12. I note the undertaking given by the lawyer for the plaintiff in relation to damages.

13. I make orders in terms of paragraphs 1, 2, 4, 5, 7 and 9 of the order which I have signed. I grant the leave and liberty in paragraphs 3 and 6 of that order. The proceedings are listed before the Common Law Registrar at 9:00am on 13 February 2023.

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Decision last updated: 04 October 2022