New South Wales Crime Commission v Dib

1. [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. [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. [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. [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. [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. [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. [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. [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. [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

1. [10]

   The objects of the Act provide critical context:

2. [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.

3. [12]

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

4. [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.

5. [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.

6. [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

1. [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.

2. [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.

3. [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.

4. [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”.

5. [20]

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

6. [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:

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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:

14. [29]

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

15. [30]

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

16. [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

1. [32]

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

2. [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.

3. [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

1. [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.

2. [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

1. [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.

2. [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.

3. [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:

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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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]

10. [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]

11. [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.

12. [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.

13. [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.

14. [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:

15. [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.

16. [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.

17. [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:

18. [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.

19. [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”.

20. [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.

21. [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:

22. [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.

23. [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:

24. [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.

25. [61]

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

26. [62]

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

27. [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:

28. [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:

29. [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]

30. [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:

31. [67]

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

32. [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.

33. [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.

34. [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.

35. [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.

36. [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]

37. [73]

    The cross-examination began with difficulty:

38. [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:

39. [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.

40. [76]

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

41. [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.

42. [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]

43. [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.

44. [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.

45. [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”.

46. [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”.

47. [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”.

48. [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.

49. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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

1. [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.

2. [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:

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [103]

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

11. [104]

    The defendant is to pay the plaintiff’s costs.