New South Wales Crime Commission v Osman
[2014] NSWSC 312
•21 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Osman [2014] NSWSC 312 Hearing dates: 21 March 2014 Decision date: 21 March 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005 Mohammed Osman (also known as Mohammad Osmankerim) be joined as the Second Defendant to these proceedings.
2. 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 Mohammed Osman (also known as Mohammad Osmankerim), including the interest in property in the property described in Schedule One and Schedule Two hereto.
3. 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 the interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Tony Osman in property in the property described in Schedule One hereto.
4. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the following persons be examined on oath before a Registrar of the Court concerning their own affairs and the affairs of each other, including the nature and location of any property in which any of them have an interest:
(a) Mohammed Osman (also known as Mohammad Osmankerim); and
(b) Tony Osman.
5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in order 4 above.
6. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Mohammed Osman (also known as Mohammad Osmankerim) furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Mohammed Osman (also known as Mohammad Osmankerim), a statement verified by oath of Mohammed Osman (also known as Mohammad Osmankerim) setting out the particulars sought in Schedule Three hereto.
7. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Tony Osman furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Tony Osman, a statement verified by oath of Tony Osman setting out the particulars sought in paragraphs 1 and 2 of Schedule Three hereto.
8. 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 interests of:
(c) Tony Osman and Mohammed Osman (also known as Mohammad Osmankerim) in the property specified in Schedule One hereto; and
(d) Mohammed Osman (also known as Mohammad Osmankerim) in the property specified in Schedule Two hereto.
9. Leave is granted to the Plaintiff to amend its Summons, filed 17 February 2014, to seek an order pursuant to section 28A of the Criminal Assets Recovery Act 1990 that Mohammed Osman (also known as Mohammad Osmankerim) pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of Mohammed Osman (also known as Mohammad Osmankerim).
10. Liberty is granted to the Plaintiff, Mohammed Osman (also known as Mohammad Osmankerim) and Tony Osman to apply on three (3) days' notice.
11. The costs of obtaining these orders shall be costs in the cause.
12. 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
2013 Audi Q5 station wagon, registration number NBP46W and registered in the name of Tony Osman.
SCHEDULE TWO
The amount of approximately $51,100 cash seized by New South Wales Police on 24 October 2013 from 31 Freeman Street, Lalor Park in New South Wales, located in the wardrobe of Mohammed Osman's bedroom.
SCHEDULE THREE
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.
3. Provide full particulars of the source of the monies specified in Schedule Two herein.
Catchwords: CRIMINAL LAW - proceeds of crime - restraining orders - serious crime derived property - proceeds of serious crime-related activity Legislation Cited: Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Uniform Civil Procedure Rules 2005Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff)
Tony Osman (First Defendant)
Mohammed Osman (aka Mohammad Osmankerim) (Second Defendant)Representation: Counsel:
E Goh (Plaintiff)
No appearance (Defendants)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendants)
File Number(s): 2014/29590
Judgment
These proceedings commenced on 30 January 2014, naming Tony Osman as a defendant. An unexplained wealth order was sought against him pursuant to s 28A of the Criminal Assets Recovery Act 1990, with orders under s 31D that he and another person Mohammed Osman be examined before a registrar of the Court concerning Tony Osman's affairs. Some other ancillary orders were sought.
The Plaintiff now applies ex parte by Notice of Motion to amend the proceedings to name Mohammed Osman as a Second Defendant to the proceedings and to ask for restraining orders under s 10A of the Act. Ancillary orders in relation to those orders are also sought in the Notice of Motion.
The Notice of Motion is supported by an affidavit of Jonathan Lee Spark sworn 20 March 2014. Mr Spark, who is an "authorised officer" as defined in s 4(1) of the Act, deposes to his suspicion that Mohammed Osman has engaged in a serious crime-related activity or serious crime-related activities, being: the supply of a prohibited drug of an amount larger than or equal to the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985; supplying a prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act; and supplying a prohibited drug of an amount greater than the indictable quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act. Those offences are all "serious criminal offences" as defined in s 6(2)(b) of the Criminal Assets Recovery Act.
The grounds on which Mr Spark holds his suspicion are set out in para 7 of his affidavit. They consist in chief of Mr Spark's reading of the police fact sheet in relation to charges against Mohammed Osman. Mr Spark forwarded an email to the named author of the fact sheet to ask him: if he drafted the fact sheet; if to the best of his knowledge and belief the contents were true and correct; and whether the fact sheet that was prepared was based on information obtained by police as a result of the investigation described in the fact sheet. The police officer concerned, Constable Liam Daley, replied in the affirmative to those questions.
I have read the fact sheet. The matters that are set out in that fact sheet, if proved, are sufficient to show that Mohammed Osman has committed each of the offences charged.
Mr Spark also annexes to his affidavit a search of the COPS database showing that Mr Mohammed Osman has been charged with the offences that I have referred to.
Section 10A(5) of the Act requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion. By reason of what is contained in the fact sheet, I am satisfied that there are reasonable grounds for Mr Spark's suspicion.
Mr Spark also suspects that the interest in the property of Tony Osman, the First Defendant, in the Audi motor vehicle is "serious crime derived property" within the meaning of s 9 of the Act because of the serious crime-related activity or activities of Mohammed Osman, the Second Defendant.
Mr Spark deposes in paragraph 11 of his affidavit to the basis on which he holds his suspicion. In short, it consists of a number of documents which show purchases of the Audi motor vehicle (said to be the property concerned) together with a statement of an employee of the motor dealer where the Audi was purchased. In the circumstances, I am satisfied that Mr Spark's suspicion in relation to Mr Tony Osman is held on reasonable grounds.
I am further satisfied, as s 10A(3) requires, from the material annexed to Mr Spark's affidavit that the defendants are domiciled in New South Wales and that the property in respect of which the orders are sought is situated in New South Wales.
Section 10A(4) enables notice to be given to the defendants before an order is made if the Court thinks fit. The First Defendant has filed a notice of appearance on 14 March 2014. However, no notice has been given to him of the present application. In the light of Mr Spark's evidence concerning the manner and speed with which property can be disposed of or transferred, I do not consider that either defendant should be given notice of the application before the orders are made. The defendants have available to them the rights set out in s 10C if they wish to have the orders set aside or varied.
I consider in all the circumstances that it is appropriate that leave be given to amend the summons both by adding Mohammed Osman, also known as Mohammed Osmankerin, as well as the other amendments that are proposed to the summons.
Upon the Plaintiff giving the usual undertaking as to damages, the giving of which by its solicitor Ms Goh is noted, and considering the matters contained in the affidavit of Jonathan Lee Spark sworn 20 March 2014, I make the orders set out in paras 1 to 4, 6 to 8, 11 and 12 and I grant the leave and liberty set out in paras 5, 9 and 10 of the draft order provided to me.
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Decision last updated: 24 March 2014
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