NSW Crime Commission v Dib [2012] NSWSC 99

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v Dib [2012] NSWSC 99 Hearing dates: 24 January 2012 Decision date: 24 January 2012 Jurisdiction: Common Law Before: Davies J Decision: Application granted - see para [11] Catchwords: CRIMINAL LAW - confiscation of criminal proceeds - restraining orders - no matter of principle. Legislation Cited: Crimes Act 1900 Criminal Assets Recovery Act 1990 Category: Principal judgment Parties: NSW Crime Commission (Applicant) Mahmoud Dib (Defendant) Representation: A Bishop NSW Crime Commission (Plaintiff) File Number(s): 2012/25222

Judgment 1This was an application for orders under the Criminal Assets Recovery Act 1990. Section 10A enables an application to be made ex parte for a restraining order which remains in force whilst (as here) there is an application pending for an assets forfeiture order (see s 10D). 2I made orders at the time of the making of the application, and I indicated that I would provide reasons for doing so at a later time. These are my reasons. 3The application is supported by an affidavit of Jonathan Lee Spark sworn 24 January 2012 In that affidavit Mr Spark, who is an authorised officer as defined in s 4(1) of the Act, deposes to his suspicion that the Defendant has engaged in a serious crime related activity or serious crime related activities, being the offences of dishonestly obtaining money be deception contrary to s 178BA(1) Crimes Act 1900 and obtaining money by false or misleading statement contrary to s 178BB(1) Crimes Act 1900. These both fall within the definition of "serious criminal offence", in s 6(2)(b) CARA . 4The grounds on which Mr Spark holds his suspicion are set out in paragraph 4 of his affidavit. In short, he has read a Facts Sheet obtained from the NSW Police which he has annexed to his affidavit. He enquired of the officer who prepared the Facts Sheet if he had prepared it, whether the officer believed it was true, and if the information was obtained by the Police as a result of the investigation described in the Facts Sheet. The officer concerned confirmed the matters asked of him. 5In addition, Mr Spark had enquiries made by an officer of the Commission which disclosed that the Defendant had been charged with the offences described in the Facts Sheet. 6Section 10(5) requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion. 7I have read the material in the Facts Sheet. The matters in the Facts Sheet, if true, are sufficient to show that these offences have been committed. The Accused provided false employment documents to Westpac to obtain a loan. Those matters plainly afford reasonable grounds for the suspicion deposed to by Mr Spark. Further, having regard to the source of information Mr Spark had and the terms of the email with the officer who provided the Facts Sheet to Mr Spark, I am satisfied that it was reasonable for him to form his suspicion on the assumption that the contents of the Facts Sheet were true. 8For those reasons I consider there are reasonable grounds for Mr Spark's suspicion. 9I am further satisfied, as s 10A(3) requires, from the material annexed to Mr Spark's affidavit, that the Defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. 10Section 10A(4) enables notice to be given to the Defendant before the order is made if the Court thinks fit. In the light of Mr Spark's evidence concerning the manner and speed with which property can be disposed of or transferred I do not consider that the Defendant should be given notice of this application before an order is made. 11Because I was satisfied that Mr Spark had reasonable grounds for his suspicion, s 10A(5) of the Act obliged me to make a restraining order. I considered also that it was appropriate to make the ancillary orders sought which were contained in paras 2-8 of a draft Order.