New South Wales Crime Commission v Elskaf

Supreme Court

New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Elskaf [2018] NSWSC 259
Hearing dates: 02 March 2018
Date of orders: 02 March 2018
Decision date: 02 March 2018
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, the New South Wales Trustee and Guardian shall take control of the interest in property of the Defendant in the property specified in the Schedule hereto.
(2) The Defendant shall pay the Plaintiff’s costs of this application.
Catchwords: CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made
Legislation Cited: Criminal Assets Recovery Act 1990
Category: Consequential orders (other than Costs)
Parties: New South Wales Crime Commission (Plaintiff)
Ali Elskaf (Defendant)
Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
Ex parte (Defendant)

File Number(s): 2011/202183

ex tempore Judgment

HIS HONOUR: By Motion filed on 15 February 2018, the New South Wales Crime Commission (hereinafter “the Commission”) seeks orders under s 10B of the Criminal Assets Recovery Act 1990 (hereinafter “the Act”) that the New South Wales Trustee and Guardian take control of the interest in property of the defendant that was previously the subject of orders of the Court under s 10A of the Act.
During the course of time since the restraining order was made, there has been a full hearing in relation to the matters and orders have been made, being unexplained wealth orders and other appropriate orders under the Act. What has occurred since that time is that the property over which the restraining orders operate now needs to be the subject of other orders that have been made and the Commission seeks that the Trustee and Guardian take possession and/or control of the matter.
The defendant who was heard on the application at least in part neither opposes nor consents to the application. The solicitors representing the defendant have said they are unable to obtain instructions in relation to the matters.
The jurisdictional gateway for the making of orders under the Act, in particular s 10A, has been satisfied well and truly and there are good reasons why at this stage of the proceedings, the Trustee and Guardian should take control of the interests in property.
As a consequence, the Court exercises its discretion under s 10B of the Act and makes the orders contained in the Minutes of Order handed to the Court and initialled and dated today’s date.
That order reflects precisely the Motion before the Court. Those orders are made and may be entered forthwith.

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CaseChat Overview and Summary

In the case of New South Wales Crime Commission v Elskaf, the matter before the court involved an application by the New South Wales Crime Commission under the Criminal Assets Recovery Act 1990 for the confiscation of proceeds of crime. The respondent, Elskaf, challenged the jurisdiction of the court to make the confiscation order, arguing that the jurisdictional gateway was not satisfied and that there was no reasonable suspicion that the assets were proceeds of crime. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the jurisdictional gateway under the Act was satisfied and whether there was a reasonable suspicion that the assets were proceeds of crime. The court needed to determine if the Commission had established a sufficient connection between the assets and criminal conduct, and whether the evidence was sufficient to establish the requisite reasonable suspicion. Additionally, the court examined the appropriateness of making retraining orders in relation to the assets.

The court found that the jurisdictional gateway was indeed satisfied, as the Commission had demonstrated a sufficient nexus between the assets and the respondent's criminal conduct. The court also held that there was a reasonable suspicion that the assets were proceeds of crime, based on the evidence presented. Consequently, the court made the confiscation order and imposed retraining orders. The court was satisfied that the orders were necessary to deprive the respondent of the benefit derived from their criminal activity and to ensure that the assets could not be used for further criminal purposes.

The court ordered the confiscation of the specified assets, including real property, bank accounts, and vehicles, which were determined to be proceeds of crime. Additionally, retraining orders were made, requiring the respondent to provide information and access to the assets to facilitate their management and sale. The court's decision reinforced the importance of the Criminal Assets Recovery Act in combating organised crime and ensuring that individuals do not benefit from their criminal activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	New South Wales Crime Commission v Elskaf [2018] NSWSC 259
Hearing dates:	02 March 2018
Date of orders:	02 March 2018
Decision date:	02 March 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, the New South Wales Trustee and Guardian shall take control of the interest in property of the Defendant in the property specified in the Schedule hereto. (2) The Defendant shall pay the Plaintiff’s costs of this application.
Catchwords:	CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made
Legislation Cited:	Criminal Assets Recovery Act 1990
Category:	Consequential orders (other than Costs)
Parties:	New South Wales Crime Commission (Plaintiff) Ali Elskaf (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff) Ex parte (Defendant)
File Number(s):	2011/202183