Criminal Assets Recovery Orders in New South Wales

What would you do if three quarters of a million dollars unexpectedly appeared in your bank account? 

Perhaps you’d let the bank know in the hope that the money would be returned to the right place.

Or maybe you’d take advantage of the situation by doing what 24-year old Western Sydney man Abdel Ghadia did, and go on a spending spree. 

Having enjoyed his stint as a high-roller, Mr Ghadia is now facing the full force of the law, after pleading guilty to two counts of dealing with the proceeds of crime.

According to court documents, a couple who were in the final stages of purchasing property accidentally entered the wrong bank account details and inadvertently transferred $759,314 AUD to Mr Ghadia, instead of sending it to another account. 

Mr Ghadia, who claims to have thought it was just an incredible stroke of luck, bought nearly $650,000 in gold bullion, nearly $50,000 in gold coins, around $15,000 in foreign currency and thousands of dollars of clothes and cosmetics – which is perhaps fortunate for the victims, as most of their funds stand to be recovered.

But the aspiring young rapper’s failure to check where the funds had come from and attempt to give it back resulted in him being charged with criminal offences and issued with a restraining order preventing him from making transactions in respect of the unlawfully obtained property, as well as an application for the forfeiture of that property.

For now, Mr Ghadia is on bail, with strict conditions, including that he must not go anywhere near an international airport, until his sentencing hearing, which is scheduled in Burwood Local Court next month. 

The offence of dealing with suspected proceeds of crime in New South Wales

Dealing with suspected proceeds of crime is an offence under section 193C of the Crimes Act 1900 which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You dealt with property,
2. There are reasonable grounds to suspect the property was the proceeds of crime, and
3. The value of the property at the time of dealing was less than $100,000.

The maximum penalty increases to 5 years in prison where the value of the property at the time of dealing was $100,000 or more; which is the offence to which Mr Ghadia has pleaded guilty to two counts of.

The New South Wales Crime Commission has also applied for forfeiture of assets it asserts were derived as a result of the offences.

Criminal assets recovery orders in New South Wales

The Criminal Assets Recovery Act 1990 (NSW) (‘CARA’) empowers the New South Wales Crime Commission to investigate and make applications to the Supreme Court of New South Wales for restraining orders, asset forfeiture orders, proceeds assessment orders, unexplained wealth orders and monitoring orders in respect of suspected proceeds derived from serious crime related activity.

Serious crime related activity

The term ‘serious crime related activity’ is defined broadly by section 6 of the Act to encompass many suspected offences, whether or not a person has been tried for them, including drug offences, firearm offences, sexual offences and any offence punishable by imprisonment of 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide.

Other threshold requirements

The Act makes clear that a prerequisite for the making of orders contained therein is that the proceeds in question are ‘serious crime derived’, ‘illegally acquired’ or fraudulently acquired’ and that the person or institution to whom the order relates has an ‘interest in… [the] property’ or ‘effective control of interest in property’.

The regime is civil in nature and sets out the rules for making the following orders:

Restraining orders

Part 2 of the Act prescribes the rules for the making of restraining orders, which section 10 defines as orders that “no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order.”

Section 10A(1) provides that these orders are made ‘ex parte’, which means in the absence of the parties, and they typically remain in force pending the determination of an asset forfeiture order.

Despite this, the Court may, of it thinks fit, send the affected person a notice of the application; section 10A(4).

Under section 10A(5), the application must be supported by an affidavit sworn or affirmed by an authorised officer (typically an officer from the Crime Commission) asserting that he or she suspects that:

• the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or
• is the subject of the application has acquired serious crime derived property because of any such activity of the person or of another person, or
• the interest is serious crime derived property, or
• the person has not disclosed an interest in property in evidence or a warranty or other representation given or made by the person in proceedings relating to an application for an assets forfeiture order, proceeds assessment order or unexplained wealth order, or examination proceedings under this Act, and the interest to which the application relates is capable of being the subject of an order because of that non-disclosure,

The affidavit must also state the grounds on which that suspicion is based.

In the case of a restraining order sought “in respect of specified interests, or a specified class of interests, in property that are held in a false name”, the application must state that the authorised officer suspects that the interest is fraudulently acquired property that is illegally acquired property as well as the grounds on which that suspicion is based.

The Court will grant the order if, having regard to the matters contained in the affidavit and any other evidence adduced, there are reasonable grounds for any such suspicion.

The Act contains provisions for restraining orders to be varied to enable affected persons to meet reasonable living and legal expenses.

Asset Forfeiture Orders

Part 3, Division 1 of the Act sets out the rules for asset forfeiture orders, which are defined by section 22(1) of the Act as orders “forfeiting to, and vesting in, the Crown specified interests, a specified class of interests or all the interests, in property of a person”. 

Section 22(2) provides that the Supreme Court must make an asset forfeiture order in respect of an interest in property if it “finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the application for the assets forfeiture order was, at any time not more than 6 years before the making of the application, engaged in serious crime related activity involving:

• an indictable quantity of drugs, or
• imprisonment for 5 years or more.

Under section 22(2A). the Court must also make such an order if it finds it more probable than not that interests in property subject to an application are fraudulently acquired property that is also illegally acquired property.

And section 22(2B) provides that such an order must be made in respect of an interest in property if the Court finds it more probable than not that the interest is an available interest relating to serious crime use property.

Section 24 of the Act makes provision for relief of hardship in respect of spouses and dependents, whereby the Court can order that a specific amount of proceeds can be paid to these people if the court is satisfied they had no knowledge of the suspected unlawful conduct.

And sections 25 and 26 provide for the exclusion of property, or parts thereof, which were not unlawfully acquired.

Proceeds Assessment Order and Unexplained Wealth Orders

Part 3, Division 2 of the Act set down the rules for proceeds assessment orders and unexplained wealth orders which are defined by section 27 as orders ‘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…’.

The factors upon which the Supreme Court determines such orders are similar to those for asset forfeiture orders, but these applications require the court to assess a particular sum of money in respect of which the affected person becomes liable for payment.

This sum becomes a debt owed to the State.

Monitoring Orders

And Part 3, Division 4 of the Act prescribe rules relating to what are known as monitoring orders, which, under section 48 of the Act, are orders compelling financial institutions, such as banks and credit unions, to share details of transactions with the NSW Crime Commission when required to do so. 

Contacted by the Crime Commission?

If you have been contacted by the New South Wales Crime Commission or served with an order under the Criminal Assets Recovery Act, it is important to engage the services of lawyers who are experienced in representing clients in these matters, as they are governed by rules relating to both procedure and evidence that are specific to the Act.

The Sydney Criminal Lawyers defence team is vastly experienced in representing clients in proceedings involving the Commission, and will accurately advise you of your options, the best way forward and fight to protect your assets and your future.

So call us anytime on (02) 9261 8881 and get Sydney’s best defence to efforts by the State to seize and acquire your assets.