New South Wales Crime Commission v Dib

Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
New South Wales Crime Commission v Kelaita (2008) 75 NSWLR 564; [2008] NSWCA 284
New South Wales Crime Commission v Vu [2012] NSWSC 129; (2012) 221 A Crim R 445
Vu v New South Wales Crime Commission [2013] NSWCA 282

Category: Principal judgment

Parties: New South Wales Crime Commission (Plaintiff)
Mohamed Dib (Defendant)

Representation: Counsel:
D Tynan (Plaintiff)
C Dobraszczyk (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
El Masri & Associates (Defendant)

File Number(s): 2015/00337863

Publication restriction: Nil

JUDGMENT

1. By Summons filed on 13 November 2015, the New South Wales Crime Commission, (“the NSWCC”), sought various orders against Mohamed Dib pursuant to the Criminal Assets Recovery Act 1990 (NSW) (“the Act”). Those orders included a restraining order over all his assets and interests in property, an examination order, and a proceeds (of crime) assessment order.

2. The issue I am to determine is confined to the assessment for the proceeds assessment order under ss 27 and 28 of the Act. This is because by the time of the final hearing day in June 2025, concessions had appropriately been made as to the preconditions and applicability of the Act to Mr Dib’s circumstances.

3. The Act is prescriptive as to the consequences that must follow when application is made under the Act in respect of serious crime related activity.

4. Mr Dib was arrested on 6 November 2015 for charges that included drug supply of a significant amount of cocaine. On 12 December 2017, he was convicted and sentenced in the District Court of New South Wales on the basis of Agreed Facts, following the entry of a guilty plea for the supply of 262 grams of cocaine in contravention of s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) during the period 5 August 2015 to 6 November 2015.

5. Mr Dib was sentenced to a term of imprisonment of 7 years and 3 months, commencing 6 November 2015 and expiring 5 February 2023, with a non-parole period of 4 years and 2 months commencing 6 November 2015 and expiring on 5 January 2020. An additional charge of possession of a prohibited weapon (a baton) was included in that sentence, as well as a charge of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) taken into account on a Form 1 basis.

6. By the time of the final hearing day for the Summons on 25 June 2025, the only issue left for determination by the Court was the amount for which the assessment order should be made, focussing on the defendant’s expenditure during the period of 6 years before the making of the application for the order: s 28(3) of the Act. The relevant period is 13 November 2009 to 13 November 2015.

7. The parameters of the debate were as follows. Mr Dib submitted through his counsel, Ms Dobraszczyk, that an assessment order had to be limited to the sum of $7,800.00 on the basis that he had otherwise explained the legitimate source of the other money. This position was stated to reflect the fact that the signed Agreed Facts tendered on sentence asserted that he had earned only $20.00 per (390) bag(s) for the sale of the cocaine the subject of the charge, but valued by police at a sale value of $300.00 per bag. Ms Dobraszczyk asserted that the Court should accept the evidence of Mr Dib, his mother, his sister, and his cousin because there is some evidence of earnings accepted by the NSWCC based on tax returns, it is “not implausible” that Mr Dib was loaned money by his cousin and others, and it is reasonable that he was given money by his mother and sister to help with Mr Dib’s mortgage given that they were all living in the home at [REDACTED] during the relevant period.

8. The NSWCC, through its counsel Mr Tynan, based on the analysis of financial records carried out by its forensic accountant Mr Ryan Bull, submitted that the sum of $341,275.02, (although calculated in Mr Bull’s affidavit to be $311,275.02), should be treated as proceeds derived by Mr Dib from illegal activities for the purposes of s 28(3), in particular because the evidence tendered and called was unreliable, not credible, incomplete, and in some instances, all three.

9. For the reasons that follow, I have concluded that the assessment order should be in the sum of $311,275.02 and I make an order accordingly. The defendant must also pay the NSWCC’s costs of the proceedings.

Structure and purpose of the Act

10. The objects of the Act provide critical context:

“3 Principal objects

The principal objects of this Act are:

(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

(a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired, and

(b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and

(b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and

(c) to enable law enforcement authorities effectively to identify and recover property.”

11. As observed by Allsop P in New South Wales Crime Commission v Kelaita (2008) 75 NSWLR 564; [2008] NSWCA 284 (“Kelaita”) at [12], the Act has elements of reversed onus, and is not about “fairness” to the person proved to have been engaged in serious crime related activity.

12. The following provisions of the Act govern the making of a proceeds assessment order:

“4 Definitions

(1) In this Act—

proceeds, in relation to an activity, includes any interest in property, and any service, advantage or benefit (including, without limitation, an increase in the value of an interest in property), that is derived or realised, directly or indirectly, as a result of the activity -

(a) by the person engaged in the activity, or

(b) by another person if the person engaged in the activity -

(i) intended for the other person to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit, or

(ii) knew, or ought reasonably to have known, that the other person would be likely to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit.

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) […]

(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) […]

28 Assessment for proceeds assessment order - illegal activity proceeds

(1) For the purpose of making an assessment for a proceeds assessment order under section 27 in relation to the proceeds derived by a person (in this section called the defendant) from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters-

(a) the money, or the value of any interest in property other than money, directly or indirectly acquired by -

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(b) the value of any service, benefit or advantage provided for—

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity,

(d) the value of the defendant’s property before and after the illegal activity or each illegal activity,

(e) the defendant’s income and expenditure before and after the illegal activity or activities.

(2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant’s property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant’s property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

(3) If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant’s expenditure during the period of 6 years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the Supreme Court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities.

(3A) ….

(4) In making an assessment as provided by this section, none of the following amounts are to be subtracted—

(a) expenses or outgoings incurred by the defendant in relation to the illegal activity or activities,

(b) the value of any proceeds derived as agent for or otherwise on behalf of some other person (whether or not any of the proceeds are received by that other person).”

13. Section 27(2)(a) is clearly established as Mr Dib was convicted for drug supply on 12 December 2017 that had occurred between August and November 2015, well within 6 years before the date of the application on 13 November 2015.

14. Section 28(3) provides the basis for the assessment order, in this case focussed on the expenditure of Mr Dib. It is clear that once there is evidence before the Court of an amount of expenditure during the assessment period, the onus is on the defendant to establish that the expenditure, or some part of it, was funded by sources unrelated to illegal activity: New South Wales Crime Commission v Vu [2012] NSWSC 129; (2012) 221 A Crim R 445 (“Vu”) at [18] per Johnson J, upheld in Vu v New South Wales Crime Commission [2013] NSWCA 282 (“Vu appeal”). It is also clear that to the extent that the expenditure is not shown to have been funded by legal or legitimate activity, it must be treated as proceeds derived from illegal activity. There is no discretion. There are no shades of grey.

15. Self-evidently, if the Court cannot accept the explanations provided by the defendant and his witnesses for the expenditure, and in the absence of corroborative material, Mr Dib will not meet the onus of proof necessary to demonstrate the money expended was derived from legitimate activity. This was a significant issue in this case due to the unsatisfactory nature of the evidence provided by Mr Dib and the three family members who gave evidence in support of his opposition to the proceeds assessment order.

NSWCC’s evidence

16. The NSWCC relied upon the affidavit of Ryan Bull, Forensic accountant, affirmed on 6 April 2023 which exhibited a significant amount of bank records and analysis, Austrac records and the transcript of the examination on oath of Mr Dib on 20 June 2018 that took place before the Registrar.

17. Mr Bull’s analysis entailed the review of all bank statements of accounts held by Mr Dib in the relevant period, totalling up withdrawals that comprised “expenditure”, analysing tax returns filed by Mr Dib to work out business expenses for the relevant period and deducting those, and deducting identifiable living expenses at a value sufficient to maintain a basic standard of living.

18. To this was added the value of the 390 bags of the cocaine supplied, based on assumptions in the “Draft Agreed Facts on Sentence” signed by Mr Dib, that he was paid the street purchase price of $300.00 per bag, totalling $87,000.00. (There is an arithmetic error in Mr Bull’s affidavit as the correct total would be $117,000.00). Added to that figure is $4,200.00 for the additional 12 grams of cocaine split into 14 bags found at his home referred to in the Draft Agreed Facts. Those bags were confiscated by police. There was no evidence from Mr Dib that he was holding those bags for somebody else so in the circumstances they are presumed to be his and can be valued accordingly.

19. Mr Bull has treated $91,200.00 as money made by Mr Dib from the sale of drugs. Mr Dib has said on oath that he spent all his drug earnings on “drug use and partying”, but claimed that he was paid only $20.00 per bag because he was only a down line supplier for “Sam”. There was no affidavit from Sam confirming this allegation. The “Draft Agreed Facts” stated: “Members of the syndicate supply one small bag of cocaine for $300.00. Each bag contains approximately 0.70 grams of cocaine”.

20. Mr Bull included international funds transfers made by Mr Dib in the sum of $15,132.71 as expenditure requiring explanation.

21. The summary table of the defendant’s total expenditure during the relevant period cross-referred to in Mr Dib’s affidavit, was set out in par 71 of Mr Bull’s affidavit:

22. Ms Dobraszczyk accepted the business expenses and unsourced living expenses figures set out in the table are reasonable on the basis that they are added then deducted from the expenditure. In reference to the incorrect calculation for proceeds from drug supply, I accept the submissions of Ms Dobraszczyk that the figure was not amended when the affidavit was tendered through Mr Bull on 24 May 2024 and so stands as the sworn evidence of Mr Bull: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rr 31.2 and 35.5.

23. As observed by Johnson J in Vu, the onus is on the NSWCC to prove the expenditure. This has been done by the affidavit analysis of Mr Bull and the tendering of Mr Dib’s bank and other records. Mr Bull corrected one typographical error in par 53 of his affidavit. He was not cross-examined. His methodology and approach to the analysis was not the subject of criticism or an opposing expert report. There was no document tendered by Ms Dobraszczyk or submission made that would lead me to have any reservations about the methodology Mr Bull has adopted in assessing expenditure for this purpose. Mr Dib’s position seems to be that the Court should simply accept that all the cash that appeared in the accounts that is not accounted for by legitimate earnings is money given to him by his mother and sister, or loaned to him by family and friends.

24. Mr Bull deducted what he accepted to be Mr Dib’s income unrelated to illegal activity based on a full acceptance of the income declarations in Mr Dib’s tax returns during the relevant period. This was claimed to be income from taxi driving and other legitimate income sources. Allowance was also made for the expenses associated with earning that income. These calculations were set out in a table. That methodology was not challenged. The total figure was $289,520.03. This figure was deducted from the $600,795.05 figure to produce the outcome of $311,275.02 as the proceeds assessment amount.

25. Also tendered was a notice to produce issued by the NSWCC to Mr Dib on 26 February 2025, requiring production of documents evidencing any money loaned to Mr Dib by Kholed Deeb, Moustafa Deeb, Qais Ahmed, Khaled Deeb, Ahamed Dib, Ali Chami, Michael Kulberg, Khaled Sankari, Jihad Dib, or the communal saving arrangements referred to in Mr Dib’s evidence as “Jamyah”, during the period 2009 to 2015.

26. This notice to produce was issued in the context of Mr Dib asserting for the first time in cross-examination on 23 May 2024 that deposits of large sums of money could be explained by loans made to him by friends and relatives. These were the names given by him during cross-examination as the people who had provided those loans, although no names were included in his November 2023 affidavit.

27. The tender included the email response to this notice from Mr Dib’s solicitor dated 28 February 2025 stating: “All loans or money borrowed were written down in a note book and all documents relating to his businesses were left in a black sports bag which was confiscated by NSW police in 2015”, and “He is unable to produce the documents requested in the notice to produce”. This response reflects evidence given by Mr Dib for the first time during further cross-examination on 3 March 2025, but not in his affidavit sworn November 2023, not in his examination in June 2018, nor in his cross-examination in May 2024, that loans made to him were recorded in a black diary/notebook that was taken by police at the time of his arrest.

The transcript of the examination before the Registrar in June 2018 – the “savings scheme” introduced as explanation for large cash sums deposited at random times into Mr Dib’s accounts

28. In the examination before the Registrar in June 2018, Mr Dib was cross-examined by counsel for the NSWCC, Mr Bhalla, about certain aspects of his financial situation and bank records. When pressed about “some quite big cash deposits”, Mr Dib’s evidence became furtive and uncooperative:

“Q. So you will see there that there are a large number of cash deposits, including some quite big cash deposits into the account, over the years, up until your arrest?

A. Yeah.

Q. Do these cash deposits have any particular source?

A. Do they have any particular source?

Q. Yeah?

A. That is for the home loan, they go straight to the home loan - my home -pardon?

Q. Carry on?

A. I cash, I deposit into the bank book in Regents Park and National Bank withdraws it and takes out the loan.

Q. I understand that. What I was asking though is where the cash comes from?

A. Where the cash come from?

Q. Yeah?

A. Yeah.

Q. So you go along to the bank with several thousand dollars' worth of cash, now where had you got the cash from - sorry I withdraw that question. First let me establish, is it you going to the bank and making the deposits?

A. Not all the time no.

Q. So sometimes you?

A. Sometimes it is me, sometimes my sister, sometimes my mother.

Q. Where is the cash coming from?

A. Well it is from me, my mum and my sister.

Q. Where it is from you, where have you got it from?

A. From my work.

Q. As a taxi driver or whatever?

A. As a taxi driver, yeah.

Q. You weren't working as a taxi driver for the whole of this period were you?

A. Paron.

Q. You weren't working as a taxi driver for the whole of this period?

A. For what period are we talking about here?

Q. Look at the document, it starts on the 14th of December 2009?

A. Yep.

Q. And it runs right through to the 9th of October, 2015?

A. Yes.

Q. So that is just about six years?

A. Yeah well, it is from the three of us mainly but, you know, we all help out, we all live in the house, we all help out, so.

Q. Where is your mother getting cash from?

A. What?

Q. Where does your mother get her cash from?

A. Where she get her money.

Q. Where does she get it from?

A. Wherever she gets it from.

Q. You know her presumably do you?

A. Yes.

Q. So do you know her sources of income?

A. I think she's on a pension.

Q. A Government pension?

A. Yes.

Q. Does she have any other sources of income?

A. No.

Q. So entry number 63 that is a $9050 cash deposit into the Regent's Park branch?

A. Yes.

Q. If your mother is on a pension how much do you say she contributed to that?

A. I can’t remember.

Q. How much did you contribute?

A. I can’t remember.

Q. How much did your sister contribute?

A. I can't remember.” [1]

29. He was pressed further by Mr Bhalla about the source of this money:

“WITNESS: So you are trying to ask how much did each person –

BHALLA

Q. Correct?

A. I don’t remember.

Q. Are you able to say roughly how much each person?

A. I don’t remember.

Q. You have given evidence your mother's own income is a pension from the government?

A. Ah?

Q. You have given evidence your mother's only income is a pension from the government?

A. That is right.

Q. Your sister's income what does she do for a living?

A. She is a single mother.

Q. Is that a way of telling the court she does not have any work income?

A. Yeah she didn't have any work at that time, no.

Q. So her only source of income would be benefits from the Government, is that correct?

A. Yes.

Q. So we have two people whose only source of income is benefits from the Government and one person who is apparently working and that is you correct?

A. Yes.

Q. Would it be fair then to say that the bulk of that $9050 has come from you?

A. I don't remember how much came from me, from my sister, from my mother--

Q. Listen, I am not asking for a precise number now, I am saying would it be fair to say the bulk, that means most of that money--

A. I know what that means. I am telling you I don't remember.

Q. Is it possible you only contributed 50 cents and your mother and sister contributed the balance, is that what you are saying?

A. I didn’t say that.

Q. That is not correct is it?

A. No that is not correct.

Q. No but you are not even able to say that the bulk of that money came from you?

A. I can’t remember how much I put in.” [2]

30. Mr Dib was then given a bundle of records from his joint account with his mother, Jamal Dib, and further questions were asked:

“BHALLA

Q. That account, do you agree or you are aware of which account we are talking about aren't you?

A. Yes I am.

Q. It is a passbook account with the Commonwealth Bank?

A. Yes.

Q. So you do not receive any bank statements as such, you just have a passbook?

A. Yes that is right. Can I note what happens with the money your Honour --

SENIOR DEPUTY REGISTRAR: Registrar.

WITNESS: Every week there is like a group of say 30 people that put a hundred dollars in the week and collect the balance. Like it is like a saving account but like they collect the balance at the end of the week or end of the month, so like I think a lot of that money talking about there is just like a group of 30 or 40 people or 50 people throw in a hundred dollars a week and at the end they collect, what is it called, like the balance of that account so one person gets it is every week or every month. It just makes it easier if they have got big payments or something.

BHALLA

Q. That does not make much sense to me, you are going to have to tease it out a little bit more or I will tease it out a little bit more; you are saying that money is not yours?

A. I am not saying it is not mine, I'm just saying every week there is 30, 40, 50 people go in for a year straight you know, everyone, every person throws in a hundred dollars a week and the balance of that--"

Q. Stopping you there?

A. Yes.

Q. Let's keep it simple?

A. Yes.

Q. Let us imagine this scheme you are talking about?

A. It is not a scheme, go on.

Q. It is not a scheme?

A. No.

Q. How would you describe it?

A. Well--

Q. Scheme is not a bad word, it is just an arrangement?

A. All right.

Q. You have this scheme and say there are 10 people in it?

A. Yes.

Q. Each of them contributes a hundred dollars?

A. Yes.

Q. So at the end of the week you have a thousand dollars

A. That is right.

Q. So what happens to that thousand dollars?

A. What happens to it?

Q. Yes?

A. So one of the fifty or whatever--

Q. No, no, just do an example now to keep it simple because none of us know what you are talking about, we are just trying to understand it?

A. All right, yep.

Q. So in this imaginary scheme?

A. All right.

Q. There are 10 of you?

A. Yes.

Q. Each of you contributes a hundred dollars?

A. Yes.

Q. At the end of the first week is a thousand dollars?

A. Yes.

Q. What happens to that thousand dollars?

A. Whoever is in need takes that thousand dollars.

Q. Whoever is what?

A. In need takes that thousand dollars and puts it towards a payment or whatever, you know.

Q. So Mr X takes the thousand dollars because they have a mortgage payment coming or something?

A. Yes.

Q. They put that into their account?

A. Yes.

Q. Then the next week there will be another thousand dollars?

A. That is right.

Q. What happens to that thousand dollars?

A. The next Mr X takes it.

Q. Mr Y takes?

A. Y or Z or--

Q. Can Mr X take it back, have another bite at the cherry?

A. No.

Q. So every week there will be a fresh one thousand dollars that pops up?

A. Yes.

Q. At the end of 10 weeks?

A. Yes.

Q. Is it the idea that each of the 10 people?

A. Has received a thousand dollars.

Q. Has received a thousand dollars?

A. That is right.

Q. So at the end of the 10 weeks nobody is any better or worse off?

A. That is right, everyone is equal.

Q. And for each of those 10 weeks?

A. Yes.

Q. Everyone has paid a hundred dollar per week?

A. That is right.

Q. And who keeps records?

A. It is someone in our group keeps records of all that.

Q. Okay but the reality is in the way that you have described it?

A. Yes.

Q. Nobody in the scheme or arrangement plan at the end of the arrangement?

A. Yes.

Q. Nobody is any better off than they were at the beginning of the arrangement?

A. What do you mean by no-one is--

Q. Because everyone has paid in exactly the same amount of money as they have taken out?

A. That is right.

Q. So they are no better off?

A. So just helping out like, you know.

Q. Just to flatten out?

A. So just if you need that amount of money at that time instead of you haven't got it, it costs a hundred dollars a week for 10 weeks or 20 week or whatever.

Q. So basically with the example I have just given you basically are paying a hundred dollars a week for 10 weeks for the security that during that 10 weeks at some point you can take out a thousand?

A. That is right.

Q. That is what it is?

A. Yes but sometimes it is more than 10 people, sometimes it is 50 people.

Q. I understand that, I am just trying to understand in my own head what you are talking about?

A. Yes.

Q. You say you are involved in one of those schemes, is that right?

A. Yes I am involved or my sister is involved or my mum is involved.

Q. All of you are involved?

A. Sometimes all of us are involved.

Q. Sometimes none of you?

A. A lot of the time there is someone involved.

Q. Who are you in those schemes with?

A. Just friends and family.

Q. Can you name people that you are involved with in those schemes?

A. I can name them yeah, how many people do I have to name.

Q. As many as you can?

A. Well can I give the names to my lawyers and they can give them back to you guys.

Q. Yes that is fine?

A. Fine.

Q. So you will prepare a list and give if to your lawyers and they will transmit that to the Crime Commission?

A. Yes.” [3]

31. The effect of this evidence was that Mr Dib said the cash deposits were all from his mother, his sister, and taxi driving. When pressed, he brought up the Jamyah, but nothing at all was said about personal loans to him by various people. This leads me to hold a concern that his evidence before me about “loans” was invented and untrue.

The defendant’s evidence

32. Reliance was placed upon the following affidavits and each deponent was cross-examined:

(a) The defendant, Mohamed Dib, affirmed 13 November 2023; (b) Jamal Dib, the defendant’s mother, affirmed 13 November 2023; (c) Nazyma Dib, the defendant’s sister, affirmed 13 November 2023; (d) Kholed Deeb, the defendant’s cousin, affirmed 13 November 2023.

33. Although the proceedings were commenced by the NSWCC in late 2015, Mr Dib failed to comply with repeated orders of the Court requiring the filing and service of his evidence addressing his onus to show that the expenditure, or part of it, was funded from sources unrelated to illegal activity.

34. It was not until 8 years later on 14 November 2023 that any evidence at all was filed on his behalf. This appears to have been in response to a guillotine order that was made by the Court in October 2023, preventing Mr Dib from relying on any evidence served after 14 November 2023 without leave of the Court.

Some preliminary observations regarding the affidavit evidence relied upon by Mr Dib

35. All of the affidavits relied upon by the defendant were sworn on the same day, 13 November 2023, all before the same witness, Mr Dib’s solicitor, Mohammed Masri. Mr Deeb’s was sworn by AVL from Lebanon. There was rather circular and furtive evidence given by Mr Dib’s mother Jamal and sister Nazyma as to the way the affidavits were prepared. I will return to that evidence.

36. Mr Masri was called to give evidence about the circumstances of preparation of the affidavits. He stated that Jamal and Nazyma came to his office to sign their respective affidavits and that he read Jamal’s affidavit to her in English and Lebanese, because Jamal did not read or understand English. Mr Masri did not explain how it was that she was able to identify the contents of her many bank statements referred to and appended to her affidavit, nor could she explain that when she was cross-examined.

Mr Dib’s evidence

37. In his affidavit Mr Dib agreed with Mr Bull’s calculation of business expenses and overall earnings but added that there were cash tips from taxi driving that comprised part of the cash bank deposits.

38. Mr Dib also asserted that his sister and mother would “often” directly deposit cash into the home loan account for the house at [REDACTED] (NAB Home Loan Account -6512). He alleged that they would also provide cash direct to him which would have been withdrawn from their accounts and left at the home to “accumulate to a significant amount”, and then he would use that money to make a direct deposit to his loan account, and also on occasion to his CBA account -1317.

39. Mr Dib asserted in his affidavit that between 13 January 2009 and 31 December 2015 he estimated the total gross contributions made by his mother and sister to be $109,900.00 based on an assumption that every fortnight, contributions were made from each of them, $600.00 to $800.00 from his mother, and $400.00 to $600.00 from his sister. He was pressed about the basis for this assertion, and his answers were unsatisfactory:

“Q. You say there:

“Between 13 January 2009 and 31 December 2015, I estimate that the gross contributions made by my mother and sister totalled more than $109,900, based on fortnightly contributions of average $600 over 181.5 fortnights."

Do you see that?

A. Yeah

Q. Did you prepare that paragraph of your affidavit?

A. I prepared it with my solicitor, yes.

Q. What's the estimate you're referring to there?

A. I think that would have been, like, us altogether.

Q. I'm sorry. What did you say?

A. Like, my sister, my mother and probably I myself, $108,000.

Q. Can you just explain that, please.

A. The estimate, $108,000? Is that what--

Q. The whole paragraph.

A. My mother and sister, 93,000, I think it was. Total, 202,000.

Q. Is that your explanation of paragraph 18?

A. I really don't understand the question properly. Can you please rephrase it.

Q. Yes. Can you explain paragraph 18 to me.

A. (No verbal reply.)

Q. If you can't explain it, Mr Dib, we might move on.

A. Yeah, can we move on, please.” [4]

40. Mr Dib alleged that he personally made only $20.00 per bag of cocaine the subject of his charges. He admitted to stealing small amounts of cocaine from the bags for his own use. He asserted that his earnings from the sale of the cocaine was only $7,800.00 in total.

41. Mr Dib alleged that the international funds transfers were all money that he was asked to collect on behalf of his father who was “exporting olive oil” to Australia from Lebanon. No corroborative evidence was provided for this assertion. There was no affidavit from Mr Dib’s father, and no documents comprising invoices or receipts or anything supporting the assertion regarding the father’s business.

42. Mr Dib identified two persons from whom he borrowed money – Qais Ahamed and Dina Abunaked. He asserted that some amounts they loaned to him were “significant”, but he could not recall the exact amounts. He said nothing at all in his affidavit about borrowing any money from his cousin, Kholed Deeb.

43. Mr Dib’s cross-examination commenced on 24 May 2024. He presented as truculent, uncooperative and dismissive. There were long pauses before many of his answers. He conveniently only recalled the names of many of the persons who had loaned him large sums of money once he was in the witness box, rather than putting them in the affidavit, where the veracity could have been checked and investigated by the NSWCC. He asserted a Jenar Khoury loaned him $16,000.00, claiming that he did not mention her name in the affidavit as he did not want her husband to find out that she had provided that money, and because this could “cause drama” between her and her husband. Ms Khoury was not called. I did not believe this explanation and consider it to be invented in an attempt to explain the large deposit and to avoid its out of court investigation.

44. Other “girls” who loaned Mr Dib money were not named, other than Dina Abunaked. Mr Dib did not explain why it was that he could not name any of them. He claimed that he “lost contact” with Ms Abunaked “a long time ago”, and that is why he did not repay the loan she made to him. I consider this to be a convenient and untruthful explanation.

45. In par 17 of his affidavit, Mr Dib deposed to having the view that due to financial assistance provided to him by his mother and sister, they had an “equitable interest” in the property. When cross-examined about this, it became evident that he had no idea what that meant. He then tried to claim it was a typographical error. [5]

46. Deposits totalling $12,500.00 cash between 14 September 2015 and 19 November 2015 were attributed by Mr Dib to “communal savings”, but when pressed about who and what was involved in this particular communal savings group, (or any of them), Mr Dib’s answers were unsatisfactory. He then suggested the money was actually from his mother and sister, “just friends and family, like that”. [6] He then suggested that his solicitor should explain it. [7] When Mr Tynan referred later to this subject, Mr Dib only then recalled a neighbour, Rouhi Sankari, may have records. [8]

47. Mr Dib was not able to explain the basis for his conclusion about the total of gross contributions from his mother and sister set out in his affidavit, reproduced at [39] above, nor was he able to identify what cash deposits were made by his mother and/or sister as opposed to himself, even in the most general way.

48. His evidence regarding the “Jamyah” was also unsatisfactory and vague. He was not able to identify what he paid into this “savings scheme”, or when, or to explain how he can have any confidence at all that any of the larger cash deposits into his accounts were from this “savings scheme”. There was no corroborative evidence provided about the scheme’s existence and operation, other than more vague and confused evidence from Nazyma and Jamal. There is simply no reliable evidence to enable me to treat the “Jamyah” as the source of any of the deposits into Mr Dib’s accounts, and I reject it as an explanation for any deposits.

49. It was accepted by the NSWCC that Mr Dib drove taxis during the relevant period. There was no corroboration as to the amount or frequency of cash tips provided to Mr Dib. I am not prepared to accept a bland assertion of unidentified tips as a basis to conclude any amount for tips as legitimate income. There is also the problem that the Agreed Facts tendered on sentence referred to the fact that the cocaine “drops” were via taxi. This raises the spectre that some of the taxi business expenses should be subject to the limitations provided by s 28(4)(a) as expenses or outgoings incurred by Mr Dib in relation to the illegal activities. That was not the approach taken by the NSWCC and in any case would have been very difficult to calculate or assess for the relevant offending period.

50. Mr Dib was unable to explain the basis of the $228,484.20 “business income” referred to in par 12 of his affidavit. He agreed that the figure was not based on any tax records and asserted that the figure included unspecified borrowings and “family help”. When pressed for the basis of the figure, the answers given were devoid of substance:

“Q. Where did you get that number from?

A. I would have worked this number out with my solicitor I think.

Q. From your tax records?

A. No, not from tax records.

Q. Well how did you work it out?

A. Huh?

Q. How did you work it out?

A. Well I borrowed off people, and family helping, that's my sister helping, my work, tips.

Q. So that figure there $228,484.20 you say is based on borrowings from family and friends, your mother and sister helping, and some income, is that correct?

A. Yeah.

Q. And where are the figures then that demonstrate how you came up with that 228-odd thousand dollar figure?

A. Well, there were times when I've borrowed a couple of grand off my cousin or my friends or people that I know.

Q. And where is that set out in your affidavit then in relation to the calculation of that figure in paragraph 12?

A. Um, not sure if it's in the - it's not in my affidavit, is it? Just would have been, um, oh, just money that I've borrowed off people and my work and--

Q. Is that your answer?

A. (Witness nodded.)

Q. So tell me who the people are that you borrowed money off that went into the calculation of that figure?

A. Borrowed off a lot of my friends. Few of my friends lent me a lot of money.

Q. Yes, and--

A. My cousin.

Q. So tell me their names and tell me how much you borrowed when you borrowed from them?

A. Well, it's over the years. I can't just give you a figure out of my head now.

Q. But you came up with a figure out of your head for this paragraph, did you?

A. Well would have been - we would have sat down and discussed this, to come up with this figure.

Q. Who did?

A. Me and my sister.

Q. So when you affirmed this affidavit and you read paragraph 12 before signing off to it, did you understand how that figure was calculated, $228,484.20?

A. As I said, just help from friends and family, borrowing money. Money that I haven't paid back yet.

Q. Did you just make this figure up?

A. Huh?

Q. Did you just make this figure up and put it in your affidavit?

A. No.

Q. No?

A. No.

Q. So it's pretty precise. It goes down to 20 cents. I'm having great trouble understanding how you calculated that figure. Can you explain?

A. I just explained, just, you know, borrowing from my friends, family.

Q. Yes?

A. Help.

Q. But you can't--

A. Tips.

Q. Sorry, tips?

A. Yeah. The Jamyah too.

Q. Yes?

A. Jamyah.

Q. And so when you affirmed, when you signed this affidavit, you were content that that $228,484.20 was a truthful and accurate statement of your business income?

A. Yeah, close to it, yeah.

Q. Close to it?

A. Yeah.

Q. Well what's the correct figure?

A. I don't know the correct figure. It's what - whatever's there.

Q. Okay. Did your solicitor tell you to put that in your affidavit.

A. No. We just, um, we just, um, we just, um, discussed, you know, who I probably borrowed off and - at the time. I was there for a while with him, so.

Q. But you didn't consult any tax records to come up with that figure, is that your evidence?

A. I didn't understand that question.

Q. You didn't consult any of your tax records, paperwork, to come up with that figure? I think that was your evidence that you gave earlier, is that correct?

A. No.

Q. I beg your pardon?

A. I'm not - I'm not understanding your question properly and--

Q. I think you said earlier--

A. Mm-hm.

Q. --so I'm clear, I think you said earlier that you did not consult your tax records in order to come up with that 228 thousand dollar figure, is that correct?

A. I didn't say anything about my tax records earlier.

Q. Let me put it to you again. Did you consult any tax records in order to come up with that 228 thousand dollar figure?

A. I can't recall if I did or not.

Q. Nevertheless your evidence is that number constitutes borrowings from family and friends, taxi tips, income, but you can't identify the names and dates of the people from whom you borrowed money, is that correct?

A. Well it's over the years, like. I can identify who I've borrowed money off, but I can't tell you dates exactly when and how much it was exactly and - it was - it's been a long time, you know, over the years.” [9]

51. Only when further pressed in cross-examination did Mr Dib provide names of people he borrowed from. He was unable to say how much he borrowed from any of the people he named, or when.

52. In relation to the money transferred to his father in Lebanon, again Mr Dib did not disclose in his affidavit the people from whom he had collected the money. His answers in cross-examination gave the distinct impression of playing for time while he thought up some names or circumstances he could volunteer, on the assumption that it was too late for inquiries to now be made, or that he assumed the Court would take his evidence at face value.

53. When pressed as to why he did not include in his affidavit anything about money allegedly loaned to him by Kholed Deeb (referred to in Mr Deeb’s affidavit but not mentioned at all by Mr Dib), Mr Dib’s answers became circular and speculative:

“Q. Mr Dib in preparing your affidavit did you advise your solicitor that you had borrowed money from Mr Kholed Dib?

A. Yes.

Q. Now I say Dib, if I mispronounce it I mean your cousin Kholed Deeb

D-E-E-B?

A. Yeah, D-E-E-B.

Q. Who has given evidence in these proceedings. So you did mention that to your solicitor?

A. Yes.

Q. Is there some reason then why that is not included in your affidavit, the fact that you borrowed money from Mr Deeb?

A. I don't know why, maybe, because he got his affidavit, but, obviously it was mentioned to my solicitor because he got his affidavit.

Q. So when you signed your affidavit, affirming that it was true and correct, you didn't think, well, we need to refer to the fact that I borrowed money from Kholed Deeb because it is not in my affidavit, did you have that thought process?

A. No I didn't. [10]

….

Q. Do you recall what those two entries for $2000 and $700, why you borrowed that money?

A. Could have been bills or –

Q. I don't want you to speculate. Do you know why he lent you that money?

A. 2010, no, I don't know why exactly but, I don't know exactly why but I've borrowed a lot off him over the years.

Q. What about paragraph 9, 18 April 2012 he says that he lent you $1640, do you recall borrowing that money from Mr Deeb?

A. Yeah I think that was for a home loan I think.

Q. Sorry?

A. Maybe for a home loan.

Q. Do you recall that specifically or are you speculating?

A. I am speculating. I don't exactly recall what they were for, you know, but, like I as I said it could have been, a bill, short on the loan, you know, I needed the money at the time.

Q. What about in 2013 did you borrow any money from him then?

A. I borrowed, I can't recall 2013.

Q. Okay, what about, look at paragraph 13 of his affidavit?

A. Yes.

Q. He says that he lent you $10,000, 27 October 2010, do you see that?

A. Yeah.

Q. Do you have any recollection of that?

A. I know at one stage I owed him, I think it was 16000 all up or, but, yeah.

Q. What did you ask him for $10000 for?

A. I think, I needed that when I opened up my shop in the Gold Coast.

Q. Your chicken shop?

A. Yes I think it was back then.

Q. Are you certain about that?

A. I don't know if it was for the chicken shop because it wasn't doing so well so it would have been for, to pay the rent or put up against my mortgage, I am not really sure.

Q. Okay so is it fair to say you can't really remember why you asked him for $10,000, is that right?

A. Yeah I can't remember.” [11]

54. In respect of the $25,000.00 cash found at Mr Dib’s home when searched under warrant on 5 November 2015, Mr Dib nominated a further alleged lender – a cousin, Omar Deeb, as the source of that money, asserting that was money loaned by Omar Deeb for Mr Dib to pay off a drug debt.

55. Mr Dib also claimed that some money loaned (initially unspecified but later in his cross-examination attributed to certain large cash deposits) was to help purchase the chicken shop business in the Gold Coast. This was unsupported by any corroborating documents of any kind. There was no evidence of any attempts made to look for corroborating documents of the chicken shop business, its purchase, its operation, or its losses, or for the “Jamyah”.

56. In circumstances where Mr Dib has the onus of demonstrating his expenditure was derived from income from sources unrelated to illegal activity, he has to do more than bald assertions off the cuff when pressed in cross-examination. Bank records showing various cash withdrawals and deposits is not evidence that on its own, can persuade the Court of any particular use or origin of the cash withdrawals or the cash deposits. In the circumstances of the s 28(3) “reversed onus”, unexplained expenditure must be treated as from illegal activities. Unsatisfactory explanations that cannot be accepted lead to the same result.

57. There were significant inconsistencies between Mr Dib’s evidence before the Registrar in 2018 and his affidavit and oral evidence in these proceedings. His answers in cross-examination about those inconsistencies were problematic:

“Q. And then at line 10 you were asked, "Does that take us up to 2015?" And you said, "Yes." And then the next question is, "So that takes us through to the time you were arrested." And you answered, "Yes."

“Q. During the time you were working at Allawah--

A. Yes.

Q. --did you have any other source of income?

A. No.”

Do you see all of that?

A. Yeah.

Q. So you gave evidence at that time during the examination that your only source of income during the period 2012 to 2015 was driving a taxi. Do you accept that?

A. Yep.

Q. And why did you say that?

A. Because I was driving a cab at the time.

Q. Why did you say, in response to "did you have any other source of income", why did you respond "no"?

A. When yeah, because when I was on the Child Focused when I was working with Child Focused, I would look after the kids till 5 o'clock, till 5 o'clock, and then after that, you know, I'd sometimes I'd go out on the weekends on the cab, sometimes I wouldn't. Like, there was times I'd go out, times I wouldn't. It was all logged, logged in.

Q. Okay. Can you answer my question.

A. Yes.

Q. Go ahead.

A. Why did I say "no"?

Q. Correct.

A. Maybe I was just nervous at the time. I don't know. [12]

….

Q. And you don't have an explanation for that?

A. Huh?

Q. You have no explanation for that?

A. Maybe I forgot at the time.” [13]

58. There were further problems with Mr Dib’s evidence and his veracity. He admitted that he signed his 2014 tax return without reading it, in an attempt to explain why he failed to notice that his income allegedly earned at “Child Focused”, was not included. [14] Not one piece of paper corroborating a single detail about this alleged source of income was provided; no affidavit from a co-worker, boss or client, not one payslip, and no affidavit from his accountant.

59. Upon being cross-examined about the basis of the money transferred to Lebanon, Mr Dib gave different accounts, stating later that he had spent the money he collected:

“Q. Let's start again. You said your father's here and he's doing what he's been doing for 20 years, correct?

A. Yes.

Q. What's he doing? What's he doing that he's been doing for 20 years?

A. He imports, he imports olive oils to Australia and the olives and sells them to his customers here.

Q. Yes.

A. Yeah.

Q. How do you know he's doing that?

A. How do I know?

Q. Yes.

A. He's, he's been doing the same thing for the last 20 years.

Q. Okay. Is your father giving evidence in these proceedings?

A. No.

Q. Is your father giving evidence in these proceedings in support of your case?

A. Not these, but he's happy to come in and give evidence if, if he needs to.

Q. But he's not, is he?

A. No.

Q. I beg your pardon?

A. No.

Q. So we can't test whether what you're saying about these transactions is correct. We can't test that with your father, can we?

A. (No verbal reply).

Q. We can't test with your father--

A. Yeah.

Q. --that you were collecting his money and sending it to Lebanon, can we?

A. You can if we ask him to come in.

Q. What I want to put to you is this is in fact your money that you were sending abroad to support your father. Correct?

A. No, that's not correct. How do you know it's my money? What evidence have you got that this is my money?

Q. We don't have any evidence that's your father's money either, do we?

A. But what evidence do you have it's my money?

Q. Can you answer my question?

A. You answer my question too. [15]

….

Q. The person you collected that money from, was that person named Mr Kassam or Mrs Kassam or something similar?

A. Yeah, Mr Kassam.

Q. Why didn't you include that in your affidavit?

A. I wasn't asked.

Q. By whom?

A. I wasn't asked by whom?

Q. Who were you not asked by about this $12,000? Are you talking about your solicitors?

A. Yeah, I wasn't asked.

Q. In the process of preparing this affidavit you must have referred to this $12,000. Is that correct?

A. Yeah.

Q. Your evidence is you referred to this, but then no one asked you who gave you this money. Is that correct?

A. Yeah, correct.

Q. You didn't think, "Well, I better tell them who gave me this money"?

A. Well, as I said, I collected money from my dad's customers.

Q. You didn't think to say to your solicitors, "Well, I'll tell you who gave me this money"?

A. No, I didn't think about that.

Q. In any event you didn't send this money to your father, did you?

A. No. Yes, I didn't.

Q. I beg your pardon.

A. No, I didn't.

Q. You spent this money?

A. Yeah, I did.

Q. What did you spend on?

A. Just partying.

Q. Your evidence is this was your father's money?

A. Yes.

Q. Not your money?

A. That's right.” [16]

60. The absence of any corroborative affidavit from his father remained unexplained, although Mr Dib indicated his father travelled to and from Australia and was actually present in Australia in March 2025.

61. Later in Mr Dib’s cross-examination there was this exchange about a loan of $50,000.00 allegedly provided by “Mr Kulberg”:

“Q. These loans, so the loan from Mr Kulberg, for example--

A. Yep.

Q. --you don't recall how much that was for, do you?

A. Yeah, $50,000.

Q. $50,000?

A. Yep.

Q. When did you obtain that loan from Mr Kulberg?

A. Kulberg--

Q. Sorry, am I mispronouncing it?

A. That was in 2009, 9 or 10?

Q. I have the spelling as K-U-L-B-E-R-G, is that incorrect?

A. K--

Q. How do you spell his surname, Mr Kulberg?

A. Kulberg.

Q. How do you spell that?

A. K-U-L-U-M-B-E-R-G.

HER HONOUR

Q. That's not how it was spelt on the last occasion when--

A. Well.

Q. --you were asked to spell it, but now you're spelling it K‑U‑L, can you repeat that? K-U-L‑U‑M‑B‑E‑R‑G?

A. K-U-L-U-M-B-E-R-G.

Q. U-M-D for dog--

A. No, no. K-U-L-U-M-B-E-R-G.

Q. B?

A. B, yeah.

TYNAN

Q. Mr Kulberg, is that correct?

A. Yep.

Q. Have you referred to this loan in your affidavit?

A. I mentioned it on the last occasion we were here.

HER HONOUR

Q. No, it's really important that you answer the questions Mr Tynan asks, and if you need some time to look at your affidavit, that's fine, you can re‑read it. But you were asked a very specific question, and that was have you referred to it in your affidavit. So just address that question, please.

A. That wasn't, it wasn't in my affidavit, no.

TYNAN

Q. Is there a reason it's not included in your affidavit?

A. No, no reason.

Q. What did you need the $50,000 for?

A. When I opened up my shop in Queensland.

Q. Is this the chicken shop?

A. Yep.

Q. Did you repay Mr Kulberg?

A. Yeah, I repaid some of it.

Q. How much?

A. I think it was about, probably, I think it was about 35,000.

Q. When was that?

A. That was back in when I had the chicken shop.

Q. Do you have a record of repaying Mr Kulberg the $35,000?

A. No.

Q. Mr Kulberg is not giving evidence in support of your case?

A. No.” [17]

62. The answers given about the use of the joint account Mr Dib held with his mother were also circular and uninformative:

“Q. You'll see that document is headed, "Passbook reconstruction", do you see that?

A. Yes.

Q. It says account number, and it ends the last four digits, 4534, do you see that?

A. Yes.

Q. Account name, it's your name and your mother's name, do you see that?

A. Yep, yep.

Q. The transactions recorded on this passbook reconstruction are your transactions, aren't they, Mr Dib?

A. Yeah.

Q. Your mother didn’t use this account, did she?

A. Well, it was a shared account. So, we both deposited, deposited money in this.

Q. You both deposited money?

A. Yep.

Q. Did you?

A. Yep.

Q. Which deposits are your mother's? Are you able to point out any?

A. No, I can't.

Q. Who's responsible for the withdrawals on this account, you?

A. The only withdrawals, I think it was, I think it was the mortgage on this.

Q. Can you just explain your answer, please?

A. We both are.

Q. You're both responsible for the withdrawals?

A. Yep, it's a joint account, yep.

Q. How do you know your mother made withdrawals from this account?

A. It was a joint account.

Q. Just because the title says it's a joint account, your evidence is that your mother made withdrawals on this account, is that your evidence?

A. Yeah, that's my evidence, yep.

Q. Do you have any independent recollection of whether your mother made withdrawals from this account?

A. Well, we both had that account, the passbook, so, yeah, it was both, both.” [18]

63. When it was pointed out that the cash withdrawals and alleged payments made by Mr Dib’s sister did not match Mr Dib’s records, an unverifiable cash “system” was described:

“Q. Your sister's given evidence that she withdrew cash in specific sums from her account and directly deposited them in cash into one of your bank accounts to pay your mortgage. Do you understand that?

A. Yeah.

Q. But it appears from the evidence we've just been through in these bank statements that that is not in fact that case. Would you accept that?

A. No.

Q. Why not?

A. Cause she'd withdraw money and then whatever money my mum had or I had on would be all to get - would be, would be put all together, then deposited into the account.” [19]

Kholed Deeb

64. Kholed Deeb, (“Mr Deeb”), is Mr Dib’s cousin. He confirmed that he and Mr Dib are “very close”. [20] His involvement in the proceedings was explained this way in cross-examination:

“Q. Did Mr Dib, your cousin, ask you to prepare an affidavit for the purposes of these proceedings?

A. Yes.

Q. When was that?

A. I can't remember. I was overseas. I can't remember the exact date. A while back.

Q. Was it this year? It must have been last year?

A. I've got emails I could check at a later date and let you know.

Q. Okay, sometime last year. Do you recall what he said to you about these proceedings?

A. No. He just told me basically that I had to let you guys know that I've lent him money in the past which I have.

Q. Sorry, what did he say?

A. He just asked me, like I need to let you guys know that I've lent him money in the past.

Q. He told you to include that in your affidavit?

A. Not precisely but he told me, like any ‑ like what he mentioned is that is after these proceedings and that I have lent him money in the past and I might be asked about it and that's what I wrote in the affidavit, that I have lent him money in the past.

Q. Yes. Did you discuss with Mr Dib the occasions on which you say you lent him money?

A. No. I just went through my bank statements.

Q. And worked it out yourself?

A. Roughly, yes.

Q. Okay. Do you know what these proceedings are about?

A. To do with the Crime Commission and his house and ‑ not in detail I don't.

Q. Just bear with me one second please. Did Mr Dib explain to you what these proceedings were about?

A. Not in deep detail, no. He told me that the Crime Commission is going to be asking questions about money that he's borrowed.

Q. And you want to assist your cousin in these proceedings‑‑

A. Yes.” [21]

65. Mr Deeb was unimpressive. His affidavit was apparently constructed by identifying various cash withdrawals from his own bank accounts and stating, without knowing with any confidence at all, that those withdrawals had all been loans to Mr Dib. In respect of other amounts, for example a sum of $450.00 withdrawn on 12 April 2010, Mr Deeb stated “Yeah, I remember lending him $450. I’m not exact of the date. I can’t remember if it was 12 April”. [22]

66. He volunteered that an additional $540.00 was loaned to Mr Dib that was not identified in his affidavit, because when Mr Tynan showed him that bank entry, he seemed to think that was what he should say:

“Q. Why did you make the statement that you lent $540 to Mr Dib?

A. Because at the time I was looking at these statements and most likely I did. I remember that I did give it to Mohamed.

Q. But you can't remember now?

A. I can't remember like I can't recall exact dates every time. It's a long time ago. It's not like last week.

Q. So maybe you didn't lend this money to Mr Dib, is that your evidence?

A. No, I've lent Mohamed a lot of money.

Q. Okay, you lent him a lot of money but you can't say with any certainty that you lent him this $540, can you?

A. I can't recall but I do think that I did lend him that $540.

Q. Why?

A. He did I lived with him for six years.

Q. Okay but why do you remember that, lending him that money, $540?

A. Because as I said I've lent him a lot of money before.

Q. That's your answer?

A. Yeah.

Q. You just want to help Mohamed out, don't you?

A. Not really, no.

Q. You're not concerned with evidence you give this Court, are you?

A. I definitely am concerned.” [23]

67. A further example of the unsatisfactory nature of this evidence was here:

“Q. Page 855 Mr Deeb, do you have that?

A. Yes.

Q. What was that $600 withdrawal for on 21 April?

A. Mohamed asked me for money and I gave it to him.

Q. So what did he say in April 2012?

A. He's always asking, "I'm short of money, can you lend me some".

Q. You remember that conversation, do you?

A. On numerous times, yes.

Q. You remember the conversation in respect of this $600?

A. Like sorry, I don't get the question.

Q. Do you remember having a conversation specifically with Mr Dib about lending him $600 in April 2012?

A. I don't recall the details of the conversation but I do recall Mohamed asking me for money.” [24]

68. Mr Deeb repeated that he “can’t recall everything” and that he had loaned Mr Dib “a lot of money” and that the transactions he identified were “most likely” sums loaned to Mr Dib. He kept no record of the loans. I was not persuaded that the assertions made by Mr Deeb in his affidavit or in his evidence were sufficiently reliable or truthful to conclude the sums referred to were in fact sums of money loaned by him to Mr Dib.

Jamal Dib

69. Jamal Dib, (“Jamal”), is Mr Dib’s mother. She came to Australia from Lebanon with Mr Dib after she divorced Mr Dib’s father in 1995. They travelled to Australia in 1997. She stated in her affidavit that the home at [REDACTED] was purchased in 2004 by Mr Dib, and that she has lived there since. She stated that she would contribute “most of her income” from her Centrelink pension towards Mr Dib’s expenses, including his mortgage.

70. Jamal deposed to being “able to save money by participating in financial arrangements with friends and family since 1988”. She stated that all the money she derived from that, she gave to Mr Dib. The bank records attached to her affidavit, (Westpac account -1190), confirmed a pattern of withdrawal of close to the total pension fortnightly from 1 August 2009 to 2 March 2012, but there were no records that verified her assertions as to what she did with that cash.

71. An interpreter was provided for Jamal. Jamal gave evidence in a strange, and in my view, deliberately uncooperative way, avoiding any examination, even examination in chief by Ms Dobraszczyk, by claiming that she was unable to see anything on any page of her affidavit, even numbers, although she stated that she had “for sure” [25] been able to read the numbers in her bank statements.

72. Jamal said that in 2015 she received money back as part of the “Jamyah” financial arrangement but was unable to say how much: “Honestly by God I don’t remember” [26] . Nor could she remember how much was received in 2014, 2013, 2012, 2011 or 2010. [27]

73. The cross-examination began with difficulty:

“Q. In relation to your affidavit that you have just been looking at can you please tell the Court what steps you went through to prepare that affidavit?

A. INTERPRETER: The steps is that I was paying the mortgage of the house they were getting the money, sorry calculating the money.

HER HONOUR: Sorry I didn't understand that answer.

INTERPRETER: Calculating the money.

HER HONOUR: Sorry, you'll have to--

INTERPRETER: Calculating the money.

HER HONOUR: Could you rearticulate your answer, I just couldn't understand what you said? No, not the witness, you Mr Interpreter, what are you saying she said?

INTERPRETER: The steps where to pay the mortgage of the house and calculating the money.

A. INTERPRETER: My family to help us. My daughter and her husband and put them all together and at the end of the month pay off the house.

TYNAN

Q. Can you answer my question please which was what steps did you take to prepare your affidavit?

A. INTERPRETER: That was what was present.

HER HONOUR: Sorry? That was what--

INTERPRETER: That was what was present.

HER HONOUR: I think you're going to have to examine that a bit further, Mr Tynan.

TYNAN

Q. What do you mean by that was what was present?

A. INTERPRETER: I said that the money that I accumulate to pay it off the house, it was the family, my daughter and my son-in-law and us.

TYNAN: I'll try one more time.

HER HONOUR: Maybe talk about the actual physical document.

TYNAN: Yes.

Q. Mrs Dib, you have a document in front of you?

A. INTERPRETER: Yes.

Q. You understand that that is your affidavit dated 13 November 2023?

A. INTERPRETER: Yes.

Q. Do you understand that this is your evidence that you are giving in these proceedings?

A. INTERPRETER: Yes, of course. That's what I used to do. That's what we used to do. That is what we used to do.

Q. What do you mean by that?

A. INTERPRETER: What do I mean?

Q. This document, this document that you signed, you have a copy of it there, correct?

A. INTERPRETER: Yes.

Q. Please tell me - please tell the Court - what steps you took to prepare this document?

A. INTERPRETER: This affidavit I did for the payment of the house, but there was no-one to pay it for me.

HER HONOUR: Sorry? This affidavit I did for the?

INTERPRETER: Payment of the house.

HER HONOUR: I think Mr Tynan's asking a more basic question than that. Mr Tynan, if you could break it down even further?

TYNAN: I don't mean to be glib, but I'm not sure how much further I can go. But I'll try, your Honour.

Q. Mrs Dib, were you asked to prepare the document that is in front of you?

A. INTERPRETER: Asked of me?

Q. Yes, did someone ask you to prepare that document?

A. INTERPRETER: This form you mean?

Q. Yes, the affidavit. Your affidavit.

A. INTERPRETER: Yeah, we used to accumulate how much money we have and we had to make documents for it.

Q. Mrs Dib, who wrote this document?

A. INTERPRETER: My solicitor have.

Q. Mr Masri?

A. WITNESS: Yeah.” [28]

74. When presented with bank statements, Jamal claimed she had glasses that she never uses but left at home and could not see the pages:

“Q. Are you able to see on page 3 of your statement a list of bank transactions?

A. INTERPRETER: Number 3?

Q. Page 3.

A. INTERPRETER: Is this number 3?

Q. Page 3. The page numbers are at the top of the page.

A. INTERPRETER: I don't read English.

Q. You can read numbers?

A. INTERPRETER: If they are clear to me, but they are not clear.

TYNAN: Your Honour, I'm not sure how I'm going to proceed. I have to go through these transactions.” [29]

75. Reading glasses and a magnifying glass were provided to her to assist. Jamal claimed she still could not see any page of any material given to her, including numbers in bank statements in her own affidavit. This situation meant Mr Tynan was deprived of the opportunity to cross-examine her.

76. A significant question mark remains over the veracity of Jamal’s affidavit and her evidence.

Nazyma Dib

77. Nazyma’s affidavit left out much critical information, including that she was, in the relevant period, a single parent with the care of four children who lived with her at Mr Dib’s house. In answer to questions from the Court, Nazyma confirmed that the children lived there with her from 2009 to 2020. In 2009 the children were aged 13, 11, 7 and 4. [30] This is relevant to what of her income would have likely been available to give to Mr Dib, and leads me to doubt the assertion in her affidavit and Mr Dib’s affidavit that she had paid close to 80% of her pension income directly to him on a fortnightly basis.

78. Nazyma’s evidence began unpromisingly where, after attempted exploration of how her affidavit came to be prepared, and after saying that she had read an affidavit “different than this one” the week before, Nazyma asked if she could “pass” or “skip the question” when asked to explain what she meant. [31]

79. Nazyma was cross-examined extensively about par 22 of her affidavit which purported to set out a list of withdrawals made from her Commonwealth Bank account [REDACTED] in cash used to pay the defendant’s mortgage by direct deposit in cash.

80. Nazyma was unwilling or unable to explain to the Court why, in par 22 of her affidavit, she had listed a transaction as “18/9/2013 $1100.00” as a withdrawal made to pay the defendant’s mortgage, when no such transaction was recorded in her bank account statements. She ultimately said that maybe there is a mistake in the bank statements.

81. When asked again how she could recall the transaction on 18 September 2013 at par 22 of her affidavit, she said “I don’t remember that”. When Nazyma was asked how the entry in par 22 got into her affidavit, she said “Well, maybe that’s just a mistake that went in. I don’t know”.

82. During cross-examination Nazyma was asked if she understood that par 22 was her evidence that she withdrew $1,000.00 on 17 January 2014. She answered “I don’t - I don’t remember that, all these transactions, like exactly”. She was then asked why they were in her affidavit, and she responded “I don’t remember”.

83. It was put to Nazyma that “When you picked those numbers you had no recollection whatsoever that you actually withdrew those amounts of cash on those days to give to your brother, do you?” She responded, “I can’t remember anything of those days”.

84. Nazyma was vague and, on my assessment, deliberately uncooperative. She repeated back simple questions asked of her in cross-examination in a transparent bid to delay answering them. She appeared to either not know answers to basic questions that she should have been easily able to answer, or did know the answer but was avoiding answering. There were very long pauses before answering many of the very clear questions put to her by Mr Tynan whose cross-examination remained courteous and patient, despite the non-sequiturs and lack of cooperation on Nazyma’s part.

85. I formed the view that Nazyma was being evasive, and at times deliberately untruthful. She claimed “bank error” to explain discrepancies in her affidavit when they were pointed out to her. She retreated to a type of catchcry instead of answering the questions asked of her, by re-stating: “I lived with my brother, and I helped him pay the mortgage”.

Submissions

(i) NSWCC

86. Mr Tynan submitted that given the absence of corroboration, Mr Dib’s case depended to a significant degree upon the acceptance of Mr Dib as a reliable and truthful witness. Mr Tynan submitted that Mr Dib is neither, and is a person who was prepared to fabricate evidence to advance his case. He described Mr Dib’s evidence as unimpressive, incoherent, contradictory and not credible.

87. Mr Tynan submitted that the evidence of family members was unreliable and their assertions unsubstantiated. In respect of Jamal, he submitted that as he was not able to cross-examine her due to her lack of cooperation, none of her evidence can be used to corroborate the defendant’s evidence.

88. Mr Tynan submitted that Nazyma was a wholly unsatisfactory witness and most of the evidence she gave was made up to assist the defendant’s case. He submitted that the Court would not believe the discrepancies in her evidence were due to errors in the bank statements or just mistakes in her affidavit. Mr Tynan submitted that the Court should find Nazyma not to be a credible or reliable witness and that her evidence cannot be relied on to support Mr Dib’s case.

89. Mr Tynan submitted that Mr Dib’s assertions as to the sources of his expenditure are not supported by independent documentary evidence, and given the unreliable state of the evidence called by the defendant, the Court could not be satisfied to the requisite standard that any part of the expenditure was derived from sources unrelated to his criminal activities.

(ii) Mr Dib – the defendant

90. Ms Dobraszczyk submitted that the Court must not judge too harshly the evidence and demeanour of unsophisticated people whose first language is not English and who are, potentially, overwhelmed by the processes and formality of a court.

91. Ms Dobraszczyk submitted that it is unsurprising that Nazyma and Jamal would not recall precise bank deposits from years ago and that the Court should accept the sworn evidence of the “general patterns of activity”, and that there was an arrangement that both Nazyma and Jamal would provide a proportion of their Centrelink payments to the defendant.

92. Ms Dobraszczyk submitted that it is not implausible to suggest that they would have contributed some amount of money, given that they both lived in Mr Dib’s house, noting the joint account of Mr Dib and his mother was set up for mortgage repayments.

93. Ms Dobraszczyk also submitted that I should accept Mr Deeb’s evidence despite its non-specific nature, as bank records reflect withdrawals corresponding to his evidence.

Decision

94. Unfortunately I have formed the view that I cannot accept as truthful anything said by Mr Dib or his mother, sister or cousin where it is not corroborated by documentary evidence. This means that whilst bank statements show many deposits and withdrawals were made in the relevant period, I do not accept those statements corroborate the assertions made about the sources of the money that was paid into and expended from Mr Dib’s accounts. Mr Dib, Jamal Dib, Nazyma Dib, and Kholed Deeb were not credible. It was evident they had a “script” to follow, and were not able to provide satisfactory responses to even the most basic testing of their evidence.

95. In drawing this conclusion, I am mindful of the comments by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ:

“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances (52). Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

96. I do not accept the submissions of Ms Dobraszczyk that the difficulties in evidence had their origin in lack of sophistication of the witnesses and/or language issues. Nor do I accept the submission that the evidence given by them was sufficient to support the alleged payments of money to Mr Dib on the part of his mother and sister.

97. The “Jamyah” savings arrangement featured in the hearing before me as it had in the hearing before the Registrar six years before. Despite it being a key purported explanation for money in Mr Dib’s accounts, no document or any evidence at all, outside the bald and vague assertions of the defendant, his sister and mother, were provided for this “arrangement”. I have concluded that whilst such arrangements may well exist in the community, Mr Dib’s family’s alleged involvement in such a scheme was deployed as a device by which to explain sums of cash deposited intermittently into bank accounts at random intervals. No credible or convincing evidence was provided about this scheme and its role in explaining any of the deposits.

98. Further, the scheme as explained by Mr Dib and his family appears to do no more than redistribute funds between participants. It does not pay interest, or create new funds, so any amounts “paid out” by the scheme, can only reflect what was paid in. It cannot create money – it only redistributes money. Only at the most fatuous level could it explain the large cash deposits, even if I accepted that what Mr Dib or Jamal or Nazyma said about it was true. It does not explain the source of the cash contributions made by the defendant in the first place, other than to fall back on the mother and sister’s contributions from their pensions and the alleged “loans” from family and friends, never repaid, and not the subject of any confirmatory affidavits from the lenders or corresponding bank records, other than Mr Deeb, whose evidence was unsatisfactory.

99. Mr Dib’s father did not provide an affidavit in support of the allegations that money sent to Lebanon was his business income collected on his behalf by his son. Nor were there any affidavits from customers or documents supporting any aspect of these assertions.

100. In those circumstances I draw a Jones v Dunkel [32] inference that evidence from Mr Dib’s father, his customers, or persons involved in the Jamyah or the persons allegedly loaning money (other than Kholed Deeb), would not have assisted Mr Dib’s case. There was no acceptable explanation provided as to why none of these people were called.

101. I also note that the specifics of the “loans” alleged from named individuals only surfaced during cross-examination. Nothing at all was said about “loans” being the source of any of the money in Mr Dib’s evidence at the s 12 hearing in 2018. All of that evidence has the distinct flavour of recent invention.

102. Mr Dib has not met the onus imposed upon him by s 28(3) to persuade the Court that the expenditure was funded by income or money from sources unrelated to illegal activity, other than as allowed for and/or conceded by the NSWCC.

103. In the circumstances I assess the proceeds from illegal activity as $311,275.02.

104. The defendant is to pay the plaintiff’s costs.

**********

Endnotes

Tcpt examination, 18 June 2018, p 32(37)-p 34(5)

Tcpt examination, 18 June 2018, p 35(15)-p 36(15).

Tcpt examination, 18 June 2018, p 37(1)-p 40(41).

Tcpt hearing, 23 May 2024, p 33(3-35).

Tcpt hearing, 23 May 2024, p 22-23.

Tcpt hearing, 23 May 2024, p 27.

Tcpt hearing, 23 May 2024, p 27(46).

Tcpt hearing, 23 May 2024, p 39.

Tcpt hearing, 23 May 2024, p 24(20)-p 44(43).

Tcpt hearing dated 23 May 2024, p 67(34)-p 68(4)

Tcpt hearing dated 23 May 2024, p 69(38)-p 70(33).

Tcpt hearing, 23 May 2024, p 89(10-46).

Tcpt hearing, 23 May 2024, p 91(4-8).

Tcpt hearing, 3 March 2025, p 4.

Tcpt hearing, 3 March 2025, p 19(7)-p 20(6).

Tcpt hearing, 3 March 2025, p 22(5-49).

Tcpt hearing, 3 March 2025, p 31(26)-p 33(5).

Tcpt hearing, 3 March 2025, p 39(10)-p 40(6).

Tcpt hearing, 3 March 2025, p 49(34-46).

Tcpt hearing, 3 March 2025, p 95(38-39).

Tcpt hearing, 23 May 2024, p 100(5-47).

Tcpt hearing, 23 May 2024, p 106(20).

Tcpt hearing, 23 May 2024, p 109(19-47).

Tcpt hearing, 23 May 2024, p 110(28-46).

Tcpt hearing, 3 March 2025, p 74(11-12).

Tcpt hearing, 3 March 2025, p 78(48).

Tcpt hearing, 3 March 2025, p 79.

Tcpt, 3 March 2025, p 80-p 82.

Tcpt hearing, 3 March 2025, p 85(13-27).

Tcpt hearing, 3 March 2025, p 140(14).

Tcpt hearing, 3 March 2025, p 101-105.

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

Amendments

06 January 2026

Par 4, line 6: replaced the word "and" with "to" Par 13, line 2: added the word "had" after "that" Par 17, line 1: added the words "of accounts" after "statements" Par 44, line 1: removed the words "In the same way" Par 54, line 2: corrected "2014" to "2015" Par 71, line 5: editing correction.