New South Wales Crime Commission v Rabih Mohamed (also known as Rabih Mohamad)

[2021] NSWSC 725

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Rabih Mohamed (also known as Rabih Mohamad) [2021] NSWSC 725

Hearing dates:

21 June 2021

Date of orders:

21 June 2021

Decision date:

21 June 2021

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 Katie Elaine Bourne sworn 21 June 2021, 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 Rabih Mohamed (also known as Rabih Mohamad) including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Rabih Mohamed (also known as Rabih Mohamad) 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Rabih Mohamed (also known as Rabih Mohamad) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Rabih Mohamed (also known as Rabih Mohamad), a statement verified by oath of Rabih Mohamed (also known as Rabih Mohamad) setting out the particulars sought in Schedule Three hereto.

5. Liberty is granted to the Plaintiff and Rabih Mohamed (also known as Rabih Mohamad) to apply on three (3) days’ notice.

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

7. These proceedings be listed for mention before the Common Law Registrar at 9:00am on 11 October 2021.

8. 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

1. The whole of the property described as Lot 72 in Deposited Plan 7927 at Guildford, Local Government Area Cumberland, Parish of Liberty Plains County of Cumberland, also known as 35 Rowley Road, Guilford New South Wales 2161 and registered in the names of Rabih Mohamad, Bilal Mohamad and Fatima Mohamad as joint tenants.

2. The whole of the property described as Lot C in Deposited Plan 368069 at Smithfield, Local Government Area Fairfield, Parish of St Luke County of Cumberland, also known as 9 Lang Street, Smithfield New South Wales 2164 and registered in the name of Rabih Mohamad as sole owner.

3. The whole of the property described as Lot 1 in Deposited Plan 536911 at St Marys, Local Government Area Penrith, Parish of Melville County of Cumberland, also known as 17 Daraya Street, Colyton New South Wales 2760 and registered in the name of Rabih Mohamad as sole owner.

4. 2010 Toyota Hiace with New South Wales registration number CX13VL and registered in the name of Rabih Mohamed.

5. Funds held in the Australia and New Zealand Banking Group account 01 2325 2798-06545 in the name of Rabih Mohamad.

6. Funds held in Commonwealth Bank of Australia account 217610083250 in the name of Rabih Mohamed.

7. Funds held in Commonwealth Bank of Australia account 217605004578 in the names of Rabih Mohamed and Fatima Mohamad.

8. 10 Ordinary shares in RBuild Pty Ltd ACN 631 178 240 in the name of Rabih Mohamad.

SCHEDULE TWO

All of the interests in property of RBuild Pty Ltd ACN 631 178 240, including but not limited to:

1. Funds held in Commonwealth Bank of Australia account 220211155103 in the name of RBuild Pty Ltd.

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

Catchwords:

CRIMINAL LAW – proceeds of crime – production 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)
Rabih Mohamed (also known as Rabih Mohamad) (Defendant)

Representation:

Counsel:
S Santhikumar - Ex parte (Plaintiff)

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

File Number(s):

2021/178090

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 orders under ss 27 and 28A of the Act.

2. The summons is supported by an affidavit of Casey Elaine Bourne sworn 21 June 2021. Ms Bourne is an authorised officer of the plaintiff. 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 there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime related activity, being the offence of participating in a criminal group contributing to criminal activity contrary to s 93T(1) of the Crimes Act 1900 (NSW), which is an offence that falls within the definition of "serious criminal offence" pursuant to section 6(2)(g1) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion principally on reading the facts sheet prepared by the police in relation to the defendant's appearance in Court when charged with the offence to which I have mentioned, and an offence also of knowingly dealing with the proceeds of crime.

5. Ms Bourne sent an email to Detective Senior Constable Tania Curic, a police officer who was involved in the prosecution of the defendant, asking her if she was the officer that drafted the facts sheet or if she was aware of the contents of the facts sheet, whether to the best of her knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by police as a result of the investigation described in the facts sheet.

6. To each of these questions Senior Constable Curic answered in the affirmative. Senior Constable Curic also informed Ms Bourne that the defendant had appeared in Court, had been released on bail and was due to appear again in Fairfield Local Court on 12 July 2021.

7. I have read the facts sheet. It is not necessary to summarise the material in that facts sheet. It is sufficient to say that what is disclosed there satisfies me that the suspicion held by Ms Bourne that the offence has been committed is reasonably held.

8. The plaintiff also seeks that the orders be made without prior notice to the defendant. The plaintiff, in that regard, relies on Ms Bourne's experience at the New South Wales Crime Commission of the ease with which people can enter into unregistered mortgages in relation to real estate, and of their ability to dispose of motor vehicle or bake date forms notifying Transport for New South Wales of the disposal of a motor vehicle, and of the ease with which funds held in bank accounts can be disposed of.

9. I am satisfied in the circumstances that it is appropriate that the 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.

10. I note the undertaking given by the solicitor for the plaintiff. On that basis I make orders in terms of paragraphs 1, 2, 4, 6 and 8 of the draft order provided to me. I grant the leave and liberty in paragraphs 3 and 5.

11. The proceedings are stood over for mention before the Common Law Registrar on 11 October 2021 at 9am.

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Decision last updated: 21 June 2021