New South Wales Crimes Commission v Maleki

[2018] NSWSC 349

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crimes Commission v Maleki [2018] NSWSC 349

Hearing dates:

01 March 2018

Date of orders:

01 March 2018

Decision date:

01 March 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 Ali Reza Maleki, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

 

(2) 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 Yosra Rabieh, including the interest in property in the property specified in Schedule One and Schedule Three hereto.

 

(3) Pursuant to section 12(1)(b)(i) and section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Ali Reza Maleki 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, and the affairs of Yosra Rabieh, including the nature and location of any property in which Yosra Rabieh has an interest.

 

(4) Pursuant to section 12(1)(b)(i) and section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Yosra Rabieh 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, and the affairs of Ali Reza Maleki, including the nature and location of any property in which Ali Reza Maleki has an interest.

 

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

 

(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 Ali Reza Maleki and Yosra Rabieh in the property specified in Schedule One hereto.

 

(7) 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 Ali Reza Maleki in the property specified in Schedule Two hereto.

 

(8) 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 Yosra Rabieh in the property specified in Schedule Three hereto.

 

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

 

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

 

(11) Liberty is granted to the Plaintiffs, Ali Reza Maleki and Yosra Rabieh to apply on three (3) days’ notice.

 

(12) The balance of the summons be listed for Directions before the Common Law Duty Judge on Monday 4 June 2018 at 9.00am.

 

(13) The costs of obtaining these orders shall be costs in the cause.

 

(14) 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.

 (15) Transcript of today’s proceedings not to be published until close of business on 15 March 2018.

Catchwords:

CONFISCATION OF ASSETS – interim orders freezing assets and preventing any dealings – jurisdictional gateway satisfied – orders made

Legislation Cited:

Civil Procedure Act
Crimes Act 1900
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985

Category:

Consequential orders (other than Costs)

Parties:

New South Wales Crimes Commission (Plaintiff)
Ali Maleki (First Defendant)
Yosra Rabieh (Second Defendant)

Representation:

Solicitors:
New South Wales Crimes Commission (Plaintiff)
Ex parte (First Defendant)
Ex parte (Second Defendant)

File Number(s):

2018/00068125

Publication restriction:

Transcript of today’s proceedings not to be published until close of business on 15 March 2018.

Ex Tempore Judgment

1. HIS HONOUR: Before the Court is a Summons seeking orders, to be dealt with with ex-parte and instanter, under the Criminal Assets Recovery Act1990 (hereinafter "the Act") and in particular seeking orders under ss 10A, 10B, 12, 22, 22AA, 28A, and an order under s 101 of the Civil Procedure Act 2005.

2. The Crime Commission today seeks an order under s 10A of the Act for a restraining order in respect of all of the interests in property of Ali Reza Maleki and Yosra Rabieh. For the purposes of this application for the restraining order, the Commission relies upon the Affidavit in support of the application being the Affidavit of Katie Elaine Bourne sworn 1 March 2018.

3. That Affidavit establishes that Ms Bourne is an authorised officer for the purposes of the Act and that she suspects each of the defendants of having engaged in serious crime-related activities. First, and in relation to each of the defendants, the supply of prohibited drugs, being methylamphetamine, of an amount of not less than a large commercial quantity applicable to that drug contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, being an offence falling within the definition of serious criminal offence pursuant to section 6(2)B of the Act. Secondly, again as to each of the defendants, the dealing with property, being the proceeds of crime, with the value of more than $100,000, contrary to section 193C(1) of the Crimes Act1900, being an offence punishable by imprisonment for five years, involving money laundering, and thus falling within the definition again of the serious criminal offence pursuant to section 6(2)(d) of the Act. Hereinafter the two sets of offences are to be collectively called "the offences".

4. The Affidavit gives the grounds for Ms Bourne's suspicions. The facts and circumstances upon which the Commission relies in its application for a restraining order are, firstly, the suspicions of Ms Bourne, namely, that she suspects each of the defendants of having engaged in serious crime-related activities, namely, the offences. Secondly, Ms Bourne has been provided with and accepts a Police Facts Sheet that describes the suspected serious criminal activity in which Ms Bourne suspects each of the defendants has engaged.    The Court has read the Facts Sheet. Thirdly, Ms Bourne has ascertained that each of the defendants has been charged with the offences described in the facts sheets. The affidavit discloses, in the view of the Court, reasonable grounds for Ms Bourne's suspicions that each of defendants has engaged in serious related activity, namely, the offences.

5. The Commission by its Summons is also seeking, as earlier stated, in respect of the each of the defendants, an assets forfeiture order pursuant to s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act.

6. It is unnecessary at this stage to detail the facts and circumstances upon which the Commission relies in seeking the said orders because those latter mentioned orders are not being sought today. Nevertheless, it should be borne in mind that the Court is aware from the Affidavit that the plaintiff will seek to rely upon the examination of each of the defendants pursuant to the provisions of s 12 of the Act and the evidence obtained as a result of any statement of affairs provided in the course of that investigation.

7. As a consequence of the satisfaction of the Court of the jurisdictional preconditions to the making of the orders that have been sought today ex parte, the Court will make the orders, dated, initialled and signed by me today.

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Decision last updated: 19 March 2018