New South Wales Crime Commission v Sakr
[2015] NSWSC 1872
•09 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Sakr [2015] NSWSC 1872 Hearing dates: In Chambers Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms sought.
Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW).
Uniform Civil Procedure Rules 2005 (NSW)Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff)
Helal Sakr (Defendant)Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2015/361746 Publication restriction: No
Judgment
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By summons which I grant leave to file today, the New South Wales Crime Commission applied ex parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) in relation to the interest in certain property of the defendant, Helal Sakr. Other orders under s 12(1) and s 27 of the Act were also sought, as well as other consequential orders.
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The application was supported by an affidavit sworn on 8 December 2015 by Jonathan Lee Spark, the Commission’s Director (Financial Investigations) and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with Rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).
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For the reasons which follow, I am satisfied that the orders sought should be made.
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The property sought to be restrained is identified in a schedule to the summons as real property located at Bankstown, registered in Mr Sakr’s name, as well as a vehicle and a boat registered in his name, funds held in identified bank accounts and cash seized on execution of a search warrant.
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Mr Spark deposed that he suspected that Mr Sakr had engaged in serious crime related activities within the definition of a “serious criminal offence” in s 6 of the Act, namely, supplying a prohibited drug (cocaine) contrary to ss 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW).
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Mr Spark provided a detailed explanation of the basis upon which he came to hold these suspicions. It rested on a consideration of a Court attendance notices and police facts sheets provided by Detective Senior Constable Howes of the New South Wales Police Force; answers to questions he asked of Detective Sergeant McGeachie in relation to the matters dealt with in these documents; as well as information obtained from searches conducted by Crime Commission officers of the COPS database, records held by the Land and Property Information in the Department of Finance, Services & Innovation database, information provided by the NSW Roads and Maritime Services by email, and information provided to the Commission on 1 December by the Westpac Banking Corporation pursuant to s 51 of the Act, as to monies held in the accounts the subject of the orders sought.
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This material disclosed that Mr Sakr has been charged with various supply offences under the Drug Misuse and Trafficking Act, as well as an offence under s 193C of the Crimes Act1900 (NSW) of dealing with property suspected to be the proceeds of crime, after an investigation in which his calls were legally intercepted. A search warrant was executed at his premises, after he was heard to say that he had quit his employment and was living off money earned from the supply of cocaine.
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On search a large amount of drugs, cocaine and cannabis were found, as well as ammunition a replica firearm, cash and an application for a firearms license.
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Mr Spark deposed to his experience that, in the absence of a restraining order, it is possible for people to enter into unregistered mortgages in relation to real estate very quickly; to dispose of vehicles and vessels or to backdate forms disposing of such assets and to dispose of funds held in bank accounts very quickly, in order to defeat the operation of the Act. He also deposed to his view that, given the serious nature of the criminal activity in which Mr Sakr is apparently involved, that he should not be given notice of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.
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Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed.
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I am satisfied that the material which is relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made. In the circumstances, I concluded that it was also appropriate to make the other orders sought.
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On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex parte. In coming to that view, I had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.
Orders
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I accordingly make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Mr Sakr. Those orders are:
“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 Jonathan Lee Spark sworn 8 December 2015, 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 Helal Sakr, 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 Helal Sakr 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 Helal Sakr shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Helal Sakr, a statement verified by oath of Helal Sakr setting out the particulars sought in Schedule Two hereto.
5. Liberty is granted to the Plaintiff and Helal Sakr to apply on three (3) days’ notice.
6. The costs of obtaining these orders shall be costs in the cause.
7. 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 X in Deposited Plan XXXXX , County of Cumberland, Parish of Bankstown also known as XX XXXXX X Street, XXXXX XXXX, New South Wales XXXX and registered in the name of Helal Sakr.
2. The whole of the property described as Lot X in Strata Plan XXXX, located in XXXXX XX, County of Cumnerland, Parish of St George also known as X XXXX XXXXX X, XXXXX XX, New South Wales XXXX and registered in the name of Helal Sakr.
3. 2001 Holden Commodore VX 3.8L 4SPA Executive sedan, VIN 6H8VXK69A1L758812 N, with expired registration in the name of Helal Sakr.
4. 3.23 meter black/white “Seadoo” PWC vessel with expired registration IDX111N, HIN CAYDV35504E909 and last registered in the name of Helal Sakr.
5. Funds in Westpac Banking Corporation Classic Plus account number XXXXX X XXXXX X held in the name of Helal Sakr.
6. Excess funds in Westpac Banking Corporation mortgage account number XXXXX XXXXX XX held in the name of Helal Sakr.
7. Excess funds in Westpac Banking Corporation mortgage account number XXXXX X XXXXX X held in the name of Helal Sakr.
8. Cash in the amount of approximately $22,190 seized by the New South Wales Police Force on 4 November 2015 pursuant to the execution of a search warrant at XX XXXXX X XXXXX X, XXXXX XXXX New South Wales XXXX.
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.
3. Provide full particulars of the source of the monies specified in Item 8 of Schedule One herein.”
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Decision last updated: 01 February 2016
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