New South Wales Crime Commission v Yacoub

[2018] NSWSC 254

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Yacoub [2018] NSWSC 254

Hearing dates:

27 February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(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 Simon Yacoub, 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 Simon Yacoub 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 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Simon Yacoub in the property specified in Item 2 of Schedule One hereto.

 

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

 

(6)   Liberty is granted to the Plaintiff and Simon Yacoub 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 28 May 2018.

 

(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.

 (10)   Non-publication of judgment for a period of two weeks from date of decision.

Catchwords:

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

Legislation Cited:

Crimes Act 1900, s 193C
Criminal Assets Recovery Act 1990

Category:

Consequential orders (other than Costs)

Parties:

New South Wales Crime Commission (Plaintiff)
Simon Yacoub (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)
Ex parte (Defendant)

File Number(s):

2018/00068095

Publication restriction:

Non-publication order for two weeks from date of decision.

ex tempore Judgment

1. HIS HONOUR: Before the Court is an application for restraining orders and an oral application for a non-publication order in relation to the matter made by the New South Wales Crime Commission (“The Commission”) by Summons.

2. Firstly, I grant leave to file in Court the Summons filed in relation to Simon Yacoub and dated 26 February 2018 and rely on same instanter. I also grant leave to file in Court and rely upon the affidavit of Katie Elaine Bourne sworn 26 February 2018 in relation to the relief sought.

3. The application before the Court is an application, in the first instance, for orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 ("The Act"), made by the Commission, for a restraining order in respect to interest in property of the defendant, Simon Yacoub.

4. For the purposes of its application for a restraining order, the Commission relies upon the affidavit sworn in support of Katie Elaine Bourne, to which I have earlier referred, sworn 26 February 2018. That affidavit establishes that Ms Bourne is an authorised officer, for the purposes of the Act, and suspects the defendant of having engaged in serious crime related activity, namely deal with property suspected of being proceeds of crime contrary to s 193C of the Crimes Act 1900 (hereinafter, “the offence”). The affidavit also gives the grounds for Ms Bourne's suspicions.

5. The facts on which the Commission relies, and to which Ms Bourne attests, are firstly, the suspicion that the defendant has engaged in serious crime related activity, namely the offence of dealing with property suspected of being the proceeds of crime. Secondly, that Ms Bourne has been provided with, and accepts, a police facts sheet that describes the suspected serious criminal activity of which Ms Bourne suspects Mr Yacoub to have engaged. Thirdly, that Ms Bourne has ascertained that the defendant has been charged with the offence described in the facts sheet. Fourthly, that there are reasonable grounds, as earlier stated, for Ms Bourne's suspicion of the serious crime related activity, being the offence.

6. The Commission also seeks (although not sought today), by its Summons, an assets forfeiture order pursuant to s 22 of the Act, and an unexplained wealth order pursuant to s 28A of the Act. I have been provided with and read the facts sheet and record attendance notices to which Ms Bourne refers in her affidavit, which essentially allege and give the basis for the allegation that the defendant has been involved in a money laundering syndicate in respect of which, as earlier stated, he has been charged. The facts and circumstances described in the facts sheet are relied upon by the Commission in forming the suspicion of the authorised officer, and are relied upon for the purposes of the assets forfeiture order. They also rely upon the fact that the seized cash described in Item 2 of the Schedule to the Summons is an available interest in property of the defendant and he has engaged in serious crime related activity, namely the offence. The defendant's activity resulted in the cash becoming serious crime use property and the cash is crime use property because it was used and in connection with serious crime related activities.

7. It is unnecessary, at this stage, to detail those facts and circumstances upon which the Commission relies for the unexplained wealth order. On the basis of the foregoing and on the basis of the Summons and the need to place security or protective device notes on any interest in property, the Court makes the orders contained in the draft order handed to the Court and dated, initialled and signed by me, and further, orders the non-publication order of these orders or the transcript of the proceedings before the Court, for a period of two weeks from today. These orders may be entered forthwith.

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Decision last updated: 15 March 2018