Citation: NSW Crime Commission v Mousselmani [2019] NSWSC 784
Court: Supreme Court of New South Wales
Date: 30 April 2019
Judge: Ierace J
Background
The NSW Crime Commission had obtained a restraining order in April 2018 under the Criminal Assets Recovery Act 1990 (NSW) affecting property belonging to the defendant, including a luxury motor vehicle (a McLaren). That earlier order was supported by evidence suggesting the vehicle was registered in the name of the defendant's brother, rather than the defendant himself.
In March 2019, the Commission filed a notice of motion seeking a court-ordered examination of a third party, Timothy Marsh, who was not the defendant. The Commission's evidence indicated that Mr Marsh had been involved in the registration and re-registration of the McLaren between December 2015 and September 2016, and was therefore likely to hold relevant information about the vehicle's true ownership.
The notice of motion was served on Mr Marsh, whose solicitor confirmed he did not oppose the orders. The defendant's legal representative communicated that the defendant neither supported nor opposed the application.
Legal Issues
- Whether the court should order the examination on oath of a third party under s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW) concerning the affairs of the defendant, including the nature and location of property in which the defendant may have an interest
- Whether there were reasonable grounds to suspect that Mr Marsh could provide relevant information about the ownership of the restrained vehicle
Decision
Ierace J was satisfied, on the material contained in the affidavit of Jonathan Spark (Executive Director of Financial Investigations at the Commission), that there were reasonable grounds for the suspicions underpinning the application. The evidence pointed to Mr Marsh's involvement in the McLaren's registration history, making him a person likely able to assist the Commission with ownership information.
The court granted the orders sought, authorising the examination of Mr Marsh on oath before a registrar concerning the defendant's affairs, including any property in which the defendant held an interest. Leave was also granted to the Commission to obtain a date for that examination from the court registry.
Orders Made
- An order under s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW) that Timothy Marsh be examined on oath before a registrar of the Supreme Court concerning the affairs of Hussein Mousselmani, including the nature and location of any property in which Mousselmani has an interest
- Leave granted to the NSW Crime Commission to obtain from the registry a date for the examination
Key Takeaways
- Under s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW), a court may order the examination on oath of a third party regarding a defendant's affairs, including property interests, in the context of asset recovery proceedings.
- Reasonable grounds for suspicion, established through affidavit evidence from a senior Commission officer, were sufficient to satisfy the threshold for making an examination order against a third party.
- A third party's involvement in the registration history of a restrained asset provided a sufficient evidentiary basis to support an inference that the person may hold relevant information about the asset's true ownership.
- Neither opposition from the subject of the examination nor support from the defendant was required for the court to exercise its discretion to make the order; the absence of opposition was noted but not determinative.
- Examination orders of this kind are ancillary to substantive restraining orders and serve the investigative purpose of tracing property interests connected to a defendant.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10A and 12(1)(b)(ii)
Cases cited: None cited in the judgment.