New South Wales Crime Commission v Rahman

[2018] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Rahman [2018] NSWSC 1528

Hearing dates:

10 October 2018

Date of orders:

10 October 2018

Decision date:

10 October 2018

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 8 October 2018, 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 Zakia Akhter Rahman, 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 Zakia Akhter Rahman 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. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Syed Rahman shall be examined on oath before a Registrar of the Court concerning the affairs of Syed Rahman, including the nature and location of any property in which Syed Rahman or Zakia Akhter Rahman has an interest.

 

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

 

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

 

6.   Liberty is granted to the Plaintiff and Zakia Akhter Rahman to apply on three (3) days’ notice.

 

7.   The balance of the Summons filed in these proceedings be listed for mention before the Common Law Duty Registrar at 9am on 25 February 2019.

 

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

 

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

 

1.   The whole of the property described as Lot 851 in Deposited Plan 1005981 at Horningsea Park, Local Government Area Liverpool, Parish of Cabramatta County of Cumberland, also known as 30 Joshua Moore Drive, Horningsea Park, New South Wales 2171 and registered in the name of Zakia Akhter Rahman as sole owner.

 

2.   2003 Lexus RX330 Panel Van with New South Wales registration number NBL88V and registered in the name of Zakia Akhter Rahman.

 

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.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Zakia Akhter Rahman (Defendant)

Representation:

Counsel:
R Katrib (Plaintiff) – Ex parte

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

File Number(s):

2018/309896

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A and a forfeiture order under s 22 of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 8 October 2018. 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 and belief that the defendant has engaged in serious crime related activity, being dishonestly obtaining a financial advantage or causing a disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), being an offence punishable by imprisonment for five years involving fraud. That is an offence which is a serious criminal offence pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion on reading the New South Wales Police Force Fact Sheet in relation to the charging of the defendant. She forwarded an email to Detective Senior Constable Amanda Goddard asking her the following questions:

Are you the officer that drafted the fact sheet or are you aware of the contents of the fact sheet?

To the best of your knowledge and belief, are the contents of the fact sheet true?

Was the fact sheet prepared based on information obtained by police as a result of the investigation described in the fact sheet?

What is the status of the charges brought against the defendant.

5. Detective Senior Constable Goddard answered the first three of those questions in the affirmative. In relation to the fourth question she reported that bail had been granted to the defendant on certain conditions. The matter was to be mentioned at Liverpool Local Court on 31 October 2018.

6. I have read the police fact sheet. I am satisfied from reading that fact sheet that the suspicion held by Ms Bourne that the offence has been committed is reasonably held.

7. The plaintiff asks that the orders be made without prior notice to the defendant. Ms Bourne says in her affidavit that she is aware from her employment with the plaintiff of the ease with which people are able to enter into unregistered mortgages of real estate very quickly and to dispose of motor vehicles or backdate forms notifying the RMS of the disposal of a motor vehicle with intent to defeat the operation of the Act.

8. Two matters highlight the need for the orders to be made without notice to the defendant. The first is that the offending alleged involves serious fraud. The second is that the defendant has been released into the community on bail making it easier for her to deal with her property. I am satisfied in the circumstances that it is appropriate that the orders should, therefore, be made without prior notice to the defendant. The defendant has her rights under s 10C of the Act to review those orders.

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Decision last updated: 18 October 2018