Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Meilak (No 2) [2013] NSWSC 936 Hearing dates: 12 July 2013 Decision date: 12 July 2013 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Motion dealt with ex parte and orders sought made. Catchwords: CRIMINAL LAW - Criminal Assets Recovery Act 1990 - notice of motion seeking examination orders - ex parte - orders made Legislation Cited: Drug Misuse and Trafficking Act 1985 Criminal Assets Recovery Act 199 Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff) Albert Joseph Meilak Representation: Solicitors: Ms R Katrib New South Wales Crime Commission File Number(s): 2012/213120 Publication restriction: None EX TEMPORE Judgment 1By summons filed in July 2012 the New South Wales Crime Commission sought orders against the plaintiff under s 10A and s 12 of the Criminal Assets Recovery Act 1990. The application was supported by an affidavit sworn by Mr Spark, the Commission's Director (Financial Investigations). 2Mr Spark there deposed to the basis of his suspicion that the defendant, Mr Meilak, had been engaged in serious crime related activities, namely the supply of a prohibited drug, cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. That belief rested in part on a police facts sheet, which disclosed the circumstances in which the defendant came to be arrested and charged with this offence. 3On 6 July 2012 restraining and other orders were made by Adamson J under s 10A as to the defendant's interest in certain property identified in a schedule to the order and under s 12 as to his examination. 4Today the Commission has filed a motion in Court, supported by an affidavit sworn by Ms Bourne, a forensic accountant employed by the Commission. The Commission seeks an order under s 12(1) of the Act for the examination of Edward Douehi in relation to the affairs of the defendant and the nature and location of property in which he has an interest. It asks that the motion be dealt with ex parte 5Ms Bourne's affidavit discloses that the orders made by Adamson J remain in force and that in July 2012 the Commission also sought orders under s 27 of the Act, which provides: "27 Making of proceeds assessment order (1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A). (2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in: (a) a serious crime related activity involving an indictable quantity, or (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2A) The Supreme Court must make a proceeds assessment order against a person (other than an individual who is under the age of 18 years) if the Court finds it more probable than not that: (a) the person derived proceeds from an illegal activity or illegal activities of another person, and (b) the person knew or ought reasonably to have known that the proceeds were derived from an illegal activity or illegal activities of another person, and (c) the other person was, at any time not more than 6 years before the making of the application for the order, engaged in: (i) a serious crime related activity involving an indictable quantity, or (ii) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2B), (2C) (Repealed) (3) A finding of the Court for the purposes of subsection (2) or (2A) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity. (4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section. (4A) The reference in subsection (2A) to a period of 6 years includes a reference to a period that began before the commencement of that subsection. (5)-(12) (Repealed)" 6Ms Bourne deposed to the basis upon which she had come to the belief that Mr Doueihi has knowledge of the defendant's affairs and the location of property in which he has an interest. That includes a notice served in July 2012 under s 17 of the Act requiring the proper officer of Prisand Pty Ltd to attend and produce documents; documents produced in answer to that notice in August 2012, including documents as to the sale of three apartments at Waitara, which disclosed that Mr Doueihi was the sole director of Prisand; email correspondence with Mr Doueihi, which revealed that the defendant had an involvement in the development of that property; the results of searches conducted on ASIC databases; in terms which have been filed and the results of the defendant's examination on 23 May 2013, which confirmed a connection between he and Mr Doueihi and their involvement in his development of the Waitara property. 7In the circumstances disclosed in Ms Bourne's affidavit, I am satisfied that the motion should be dealt with ex parte and that orders sought should be made. I order accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2013