The Commissioner for Australian Federal Police v Omar

Supreme Court of NSW|2020-10-08|Before: Beech-Jones J

Solicitors: Australian Federal Police (Plaintiff) No Appearance (Defendants) File Number(s): 2016/236275

EX TEMPORE Judgment

This is an application for restraining orders under ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth) (the "Act") in respect of property that was seized pursuant to the execution of a search warrant on 9 August 2016. On that day, Australian Federal Police officers executed a search warrant issued under s 3E of the Crimes Act 1914 at 27 Garrong Road, Lakemba, in New South Wales. The registered proprietors of that property are the second defendant, Mohammad Omar, and his father, Samir Omar.
At the time of the execution of the search warrant, the property the subject of this application was seized. In particular, located in one bedroom, described as "bedroom 1", was cash in the amount of AU$39,310. Located in another bedroom, described as "bedroom 2", was cash in the amount of AU$14,000. Located in what was described as "bedroom 3" were two separate cash amounts, one being AU$32,800 and the other being US$3534. There was also located and seized during the search an expensive "Breitling" brand men's wrist watch.

Legislative Provisions

Section 18(2) provides that the relevant order must specify the property the subject of the order that must not be disposed of or otherwise dealt with if there are reasonable grounds to suspect that the property falls within any one of various categories, including property that is "subject to the effective control of the suspect" or that is either "proceeds of the offence" or "an instrument of the offence". The affidavit requirements that I referred to are in s 18(3). They provide that the application must be supported by the affidavit of an authorised officer, stating that the authorised officer suspects that the relevant suspect has committed the offence and, if the application is to restrain the property of a person other than a suspect, that the authorised officer suspects that the property is subject to the effective control of the suspect; or the property is the proceeds of the offence; or, if the order relates to a serious offence, the property is an instrument of the offence. The affidavit must include the grounds on which the authorised officer holds these suspicions.
Section 19(1) obliges a court with proceeds jurisdiction to make a restraining order if: a proceeds of crime authority applies for the order; there are reasonable grounds to suspect that the property is either the proceeds of, inter alia, an indictable offence or an instrument of a serious offence; the application is supported by an affidavit of an authorised officer, stating that the authorised officer suspects that the property is proceeds of the offence or an instrument of the offence, including the grounds on which the suspicion is held; and the court is satisfied the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
It might be thought that there is no reason to make a restraining order under both provisions in respect of the same property. However, in light of the fact that the forfeiture provisions of the Act differentiate between property restrained under ss 18 or 19, that is appropriate.
Section 26(1) provides that, subject to subs (4), the relevant responsible authority must give written notice of the application to the owner of the property if the owner is known. Subsection (4) obliges the court to consider the application without notice having been given if the responsible authority requests the court to do so. In this case, the plaintiff has not made that request. Instead, an affidavit has been read from Emilia Cvetanovski, affirmed 11 September 2020, which confirms that notice has been provided of the application.
In respect of both provisions, I am satisfied that a proceeds of crime authority has applied for the order. Further, based on what I will outline, I am satisfied that the affidavit requirements referred to in ss 18 and 19 have been met.

Suspicion that an Offence was Committed

The first substantive matter to address is whether there are reasonable grounds to suspect that a person has committed a serious offence. This morning, I heard and reserved judgment upon an application for the forfeiture of property associated with the first and second defendant. One of the issues in that application is whether the plaintiff has proven on the balance of probabilities, but subject to the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, that either of those defendants, inter alia, engaged in conduct constituting one or more serious offences. Needless to say, the test for making an order under ss 18 and 19 is not so stringent.
In broad terms, the affidavits of Scott Michael Mathews, a member of the Australian Federal Police, established that the defendants are suspected of having used four companies to obtain payments of childcare benefit from the Commonwealth and in doing so committed offences under, inter alia, ss 134.2 and 135.1(3) of the Criminal Code, as well as s 400.1(1) of dealing with money or property reasonably suspected to be the proceeds of crime. They are serious offences because they fall within subparas (a)(iii) and (a)(iv) of the definition of that expression in s 338 of the Act. The substantive affidavit relied on in support of the restraining orders is an affidavit sworn by Mr Mathews on 4 August 2016, as well an affidavit sworn on 8 August 2016 and 25 February 2019, together with a supplemented affidavit on 19 August 2020.
So far as it is necessary to show that there are reasonable grounds to suspect that the two defendants have committed a serious offence, the effect of the 2016 affidavits was summarised by Fagan J, who made a restraining order over other property, in a judgment dated 8 August 2016, (Unreported, 8 August 2016) as follows: "Federal Agent Mathews' affidavit identifies prima facie evidence that the New South Wales Education Department approvals under the scheme in respect of the third defendant, Surpass trading as Playschool FDC, were obtained in late 2013 on the basis of false representations to that department concerning the child care experience of the first defendant and of Mohammed Abdullah Abdelrasek as nominated supervisors (para 66-85). The federal agent has also identified prima facie evidence sufficient to support a reasonable suspicion of systemic fraudulent over-statement of the hours of attendance of various educators at each of the FDC's operated by the first two defendants and their companies. In relation to the first defendant and the Playschool FDC operated by the third defendant under his control, the material relied upon by Federal Agent Mathews concerns one such educator and is deposed to in paras 115-120. This material includes intercepted phone conversations which are open to the interpretation that the first defendant and one of the educators collaborated to falsify records of attendance of the educator at Playschool's FDC centre. In relation to the first defendant and NSWFDC operated by the fifth defendant, Teach Australia, Federal Agent Mathews identifies similar evidence in relation to three educators as deposed to in paras 121-125, 126-129 and 130-137. With respect to the second defendant and Interactive FDC operated by the fourth defendant, Federal Agent Mathews has identified further prima facie evidence tending to support a suspicion of collaboration between the second defendant and educators for the making of exaggerated claims of attendance, thereby to induce the Commonwealth to pay more in rebates and the like than in fact should have been paid to Interactive FDC under the scheme. This evidence is in pars 138-142, 143-150, 151-162, 162-166, 173-176 and 177-183. Each of those groups of paragraphs concerns a separate educator. A total of six educators are the subject of this prima facie material. In respect of the second defendant's conduct of the Friends FDC centre run by the sixth defendant, Panacea, Federal Agent Mathews has identified evidence supporting a reasonable suspicion of fraudulent over-statement of the hours of attendance of one educator in para 167-172. A number of the educators identified in the evidence of Federal Agent Mathews, referred to above, concerning each of these FDC businesses, appear from passenger movement records of the Commonwealth Department of Immigration and Border Control to have been overseas during periods in respect of which one other of the first two defendants, through their companies, has submitted claims to the relevant Commonwealth department that the educators attended at one of the FDC centres. In addition to the above evidence concerning particular educators who purportedly worked at the FDCs operated by the first two defendants through their companies, Federal Agent Mathews' affidavit contains and/or identifies some over-arching evidence which tends to establish collaboration between the first two defendants with respect to falsifying claims on the Commonwealth in respect of educators (para 184-188) apparently showing the second defendant as having arranged falsification of the claims of one educator in respect of one of the first defendant's businesses (pars 189-192) and containing admissions by the second defendant that some educators working in his businesses are not 'genuine' (pars 193-197)."
At that time, Fagan J concluded as follows: "I am satisfied from Federal Agent Mathews' affidavit that there are reasonable grounds to suspect that each of the six named defendants has committed serious offences, s 18(1)(c), that the officer's affidavit fulfils the requirements of s 18(3)(a), see s 18(1)(d), and that his suspicions of the commission of serious offences are held upon reasonable grounds. That is s 18(1)f)."
I record that I am similarly satisfied. My findings in that regard are bolstered by the contents of Federal Agent Mathews' affidavit of 19 August 2020.
So far as the application involves s 18 of the Act, Federal Agent Mathews' affidavit of 19 August 2020 records, inter alia, his suspicion that the property the subject of this application was the proceeds of, or an instrument of, offences he suspects were committed by the first two defendants. He also records his suspicion that the property was suspected to be the property of, or under the effective control of, the two defendants. In support of the suspicion that it was under their effective control, his affidavit recounts the place within the household where the property was located, and discussions with at least Ibrahim Omar as to the persons who resided at the premises and who occupied the particular bedrooms.
In relation to bedroom 1 he records, based upon what he was told and other matters he found, that Mohammad Omar was the primary occupant of bedroom 1, but that Ibrahim Omar occasionally occupied bedroom 2. I am satisfied that suspicion is based on reasonable grounds. So far as bedroom 2 is concerned, he records his suspicion, based on what he was told and other observations, that Ibrahim Omar was the primary occupant of that bedroom. I am satisfied that suspicion is based on reasonable grounds. So far as bedroom 3 is concerned he records, based on his discussions and observations, there was no specific occupant of that bedroom, but either Ibrahim Omar or Mohammad Omar occasionally occupied that bedroom. Again, I am satisfied that suspicion is based upon reasonable grounds.
Further, I am satisfied that a suspicion that the property was under their effective control is reasonable once it is concluded that it is reasonable to suspect that either one or both of them occupied a particular bedroom in that house, bearing in mind its characteristics and where the property was found.
So far as Federal Agent Mathews suspected that the property the subject of this application was the proceeds of, or an instrument of, the offences I referred to earlier, Federal Agent Mathews records the basis of his suspicion being; the amount of the suspected proceeds of the frauds carried out by the first and second defendants via the third to sixth defendants totalling approximately over $33 million; what is described as the evasive and inconsistent answers given by Ibrahim Omar when he was interviewed concerning the origin and ownership of the cash that was seized; and what he describes in his first affidavit as previous attempts by the two defendants to use their family members to hide unlawfully obtained property, as well as a comparison with Australian tax records indicating their relatively modest or non‑existent levels of income. Again, I am satisfied that those suspicions are, based on that material, reasonable.
Having regard to those findings, it follows that all of the four preconditions to the making of an order under s 18(1) in respect of the property the subject of this application have been made out. It also follows that the preconditions to the making of an order under s 19(1) of the Act have also been made out.
Accordingly, the Court notes that the plaintiff provides on behalf of the Commonwealth the usual undertaking as to costs and damages, and makes orders 1 to 11 in the notice of motion filed 19 August 2020 as follows:

Orders Upon the plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages: THE COURT ORDERS that: (1) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth) (Act), in relation to the suspect Ibrahim Omar, the property in Schedule One to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (2) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth) (Act), in relation to the suspect Mohammad Omar (also known as David Miller) (Mohammad Omar), the property in Schedule One to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (3) Pursuant to section 19 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule One to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (4) Pursuant to section 19 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule One to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (5) Pursuant to section 18 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Two to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (6) Pursuant to section 18 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Two to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (7) Pursuant to section 19 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Two to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (8) Pursuant to section 19 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Two to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (9) Pursuant to section 18 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Three to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (10) Pursuant to section 18 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Three to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (11) Pursuant to section 19 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Three to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (12) Pursuant to section 19 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Three to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (13) Pursuant to section 18 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Four to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (14) Pursuant to section 18 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Four to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (15) Pursuant to section 19 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Four to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (16) Pursuant to section 19 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Four to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (17) Pursuant to section 18 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Five to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (18) Pursuant to section 18 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Five to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (19) Pursuant to section 19 of the Act, in relation to the suspect Ibrahim Omar, the property in Schedule Five to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (20) Pursuant to section 19 of the Act, in relation to the suspect Mohammad Omar, the property in Schedule Five to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. (21) Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy is to take custody and control of the property specified in each of Schedules One to Five (inclusive) to these orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2021

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