New South Wales Crime Commission v Youkhana - [2019] NSWSC 822

Supreme Court

New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Youkhana [2019] NSWSC 822
Hearing dates: 3 July 2019
Date of orders: 03 July 2019
Decision date: 03 July 2019
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 28 June 2019, 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 Ashoor Youkhana, including the interests in property in the property specified in Schedules One and Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Ashoor Youkhana 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. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Linda Youkhana shall be examined on oath before a Registrar of the Court concerning the affairs of Linda Youkhana, including the nature and location of any property in which Linda Youkhana or Ashoor Youkhana 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 Ashoor Youkhana shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Ashoor Youkhana, a statement verified by oath of Ashoor Youkhana setting out the particulars sought in Schedule Three hereto.

6. 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 Ashoor Youkhana in the property specified in Schedule Two hereto.

7.   Liberty is granted to the Plaintiff and Ashoor Youkhana to apply on three (3) days’ notice.

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

9.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 30 September 2019.

10. 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 437 in Deposited Plan 737156 at Abbotsbury, Local Government Area of Fairfield, Parish of Melville, County of Cumberland also known as 17 Driscoll Street, Abbotsbury, New South Wales 2176 and registered in the name of Ashoor Youkhana as sole owner.

2.   1966 Ford Mustang motor vehicle with New South Wales registration number ELNORE and registered in the name of Ashoor Youkhana.

3.   2018 Ford Ranger Ute motor vehicle with New South Wales registration number DYV70B and registered in the name of Ashoor Youkhana.

4.   2016 Boeing boat trailer with New South Wales registration number TC82HH and registered in the name of Ashoor Youkhana.

5.   2018 3.5 metre BRP Canada PWC boat with New South Wales registration number AJV327N and registered in the name of Ashoor Youkhana.

6.   2013 3.4 metre BRP Canada PWN boat with New South Wales registration number AHO766N and registered in the name of Ashoor Youkhana.

7.   100 fully paid ordinary shares held in El-Toro Holdings (NSW) Pty Ltd in the name of Ashoor Youkhana.

8.   100 fully paid ordinary shares held in ETSRC Pty Ltd in the name of Ashoor Youkhana.

9.   100 fully paid ordinary shares held in ALJ Eden Pty Ltd in the name of Ashoor Youkhana.

SCHEDULE TWO

1.   Cash in the approximate amount of $32,500 seized by New South Wales Police on 15 April 2019 during the execution of a search warrant at 29 Broadbent Avenue, Middleton Grange, New South Wales, 2171, being the residential address of Ashoor Youkhana.

2.   Four Rolex watches seized by New South Wales Police on 15 April 2019 during the execution of a search warrant at 29 Broadbent Avenue, Middleton Grange, New South Wales, 2171, being the residential address of Ashoor Youkhana.

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.
Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders
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: Procedural and other rulings
Parties: New South Wales Crime Commission (Plaintiff)
Ashoor Youkhana (Defendant)
Representation:
Counsel:
P Donnelly – Ex parte (Plaintiff)
Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s): 2019/205781

Judgment

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 of the Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 28 June 2019. 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.
Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime-related activities being (1) participating in a criminal group contrary to s 93T of the Crimes Act 1900 (NSW), an offence falling within the definition of "serious criminal offence" pursuant to s 6(2)(g1) of the Criminal Assets Recovery Act; and (2) supplying a prohibited drug, being cocaine, contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), an offence falling within the definition of "serious criminal offence" pursuant to s 6(2)(b) of the Criminal Assets Recovery Act.
Ms Bourne bases her suspicion, principally, on reading the facts sheet prepared by the Australian Federal Police in relation to the investigation of the offences with which the defendant has been charged.
Ms Bourne sent an email to the Australian Federal Police and to the officer believed to be involved in the investigation. Ms Bourne asked the officer if he was the officer who drafted the facts sheet or if he was aware of the contents of that sheet; whether to the best of his knowledge and belief the contents of the facts sheets were true; and if the facts sheet was prepared based on information obtained by the police as a result of the investigation described in the facts sheet. Ms Bourne received an email from the officer involved providing affirmative answers to those questions. He also affirmed that the charges remain the same against the defendant.
I have read the detailed facts sheet prepared by the AFP, and I am satisfied that the suspicion held by Ms Bourne that the offences have been committed is reasonably held.
The plaintiff seeks an order, additionally, that the New South Wales Trustee and Guardian take control of the interests of the defendant in the property set out in schedule 2 to the summons, being cash and four Rolex watches seized at the execution of a search warrant. I am satisfied that it is appropriate in the circumstances that the cash should be transmitted to the New South Wales Trustee and Guardian so that it can earn interest whilst held. I am also satisfied that it is appropriate that the Trustee and Guardian should take control of the Rolex watches rather than their being returned to the defendant where there is the possibility of disposal.
The plaintiff also seeks that the orders be made without prior notice to the defendant. It does so on the basis of Ms Bourne's experience at the Commission of the ease with which the operation of the Act may be defeated by the speedy entry into unregistered mortgages of real estate and the ability to dispose of motor vehicles or backdate forms notifying the RMS of the disposal of the motor vehicle.
I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s10C of the Act to review the orders.
I note the usual undertaking as to damages is given by the solicitor for the plaintiff. On that basis, I make orders in terms of paragraphs 1, 2, 3, 5, 6, 8 and 10 of the Draft Order provided to me. I grant the leave and the liberty in paragraphs 4 and 7 of the Draft Order. The proceedings are stood over for mention before the Common Law registrar at 9am on Monday, 30 September 2019.

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Decision last updated: 03 July 2019

Medium Neutral Citation:	New South Wales Crime Commission v Youkhana [2019] NSWSC 822
Hearing dates:	3 July 2019
Date of orders:	03 July 2019
Decision date:	03 July 2019
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 28 June 2019, 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 Ashoor Youkhana, including the interests in property in the property specified in Schedules One and Two hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Ashoor Youkhana 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. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Linda Youkhana shall be examined on oath before a Registrar of the Court concerning the affairs of Linda Youkhana, including the nature and location of any property in which Linda Youkhana or Ashoor Youkhana 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 Ashoor Youkhana shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Ashoor Youkhana, a statement verified by oath of Ashoor Youkhana setting out the particulars sought in Schedule Three hereto. 6. 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 Ashoor Youkhana in the property specified in Schedule Two hereto. 7. Liberty is granted to the Plaintiff and Ashoor Youkhana to apply on three (3) days’ notice. 8. The costs of obtaining these orders shall be costs in the cause. 9. These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 30 September 2019. 10. 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 437 in Deposited Plan 737156 at Abbotsbury, Local Government Area of Fairfield, Parish of Melville, County of Cumberland also known as 17 Driscoll Street, Abbotsbury, New South Wales 2176 and registered in the name of Ashoor Youkhana as sole owner. 2. 1966 Ford Mustang motor vehicle with New South Wales registration number ELNORE and registered in the name of Ashoor Youkhana. 3. 2018 Ford Ranger Ute motor vehicle with New South Wales registration number DYV70B and registered in the name of Ashoor Youkhana. 4. 2016 Boeing boat trailer with New South Wales registration number TC82HH and registered in the name of Ashoor Youkhana. 5. 2018 3.5 metre BRP Canada PWC boat with New South Wales registration number AJV327N and registered in the name of Ashoor Youkhana. 6. 2013 3.4 metre BRP Canada PWN boat with New South Wales registration number AHO766N and registered in the name of Ashoor Youkhana. 7. 100 fully paid ordinary shares held in El-Toro Holdings (NSW) Pty Ltd in the name of Ashoor Youkhana. 8. 100 fully paid ordinary shares held in ETSRC Pty Ltd in the name of Ashoor Youkhana. 9. 100 fully paid ordinary shares held in ALJ Eden Pty Ltd in the name of Ashoor Youkhana. SCHEDULE TWO 1. Cash in the approximate amount of $32,500 seized by New South Wales Police on 15 April 2019 during the execution of a search warrant at 29 Broadbent Avenue, Middleton Grange, New South Wales, 2171, being the residential address of Ashoor Youkhana. 2. Four Rolex watches seized by New South Wales Police on 15 April 2019 during the execution of a search warrant at 29 Broadbent Avenue, Middleton Grange, New South Wales, 2171, being the residential address of Ashoor Youkhana. 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.
Catchwords:	CRIMINAL LAW – proceeds of crime – restraining orders
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:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Ashoor Youkhana (Defendant)
Representation:	Counsel: P Donnelly – Ex parte (Plaintiff) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff)
File Number(s):	2019/205781