Citation: NSW Crime Commission v Ollis [2006] NSWSC 316
Court: Supreme Court of New South Wales
Date: 21 April 2006
Judge(s): Rothman J
Background
The NSW Crime Commission applied for a Proceeds Assessment Order under s 27(1) of the Criminal Assets Recovery Act 1990 (NSW) against the first defendant, a man who had sworn two affidavits filed in Wollongong Local Court in support of a motion to pay a judgment debt of approximately $40,000 by instalments of $1,000 per month.
Those affidavits were alleged to be materially false. At the time of swearing them, the defendant had recently lent $4.5 million to one person and $3 million to another, and held a further $7.5 million in undisclosed assets. The Commission contended this conduct amounted to fraud under s 178BB of the Crimes Act 1900 (NSW), which is punishable by five or more years' imprisonment and therefore constitutes "serious crime related activity" under the Act.
Six other defendants were joined in the proceedings but were not the subject of the s 27 application at this stage. The first defendant did not adduce evidence to counter the factual allegations; instead, he raised witness immunity as a complete answer to the application.
Legal Issues
- Whether the common law immunity protecting witnesses from civil suit extended to proceedings under the Criminal Assets Recovery Act 1990, so as to bar a Proceeds Assessment Order entirely
- Whether witness immunity, if applicable to a charge under s 178BB of the Crimes Act 1900, also prevented the court from finding that the underlying conduct constituted "serious crime related activity" for the purposes of the Act
- Whether the defendant's conduct independently satisfied the preconditions for a Proceeds Assessment Order on the basis of perverting the course of justice under s 319 of the Crimes Act 1900, which is a well-recognised exception to witness immunity
Decision
Rothman J rejected both immunity arguments and held that the preconditions for making a Proceeds Assessment Order were satisfied. On the first argument, his Honour found that witness immunity does not extend directly to proceedings under the Criminal Assets Recovery Act 1990. The Act operates as a distinct statutory regime directed at removing the proceeds of crime, brought by the State rather than a private litigant, and in aid of the administration of justice. Its operation is therefore distinguishable from the civil immunity that protects witnesses from suits by parties to the original litigation.
On the second argument, the court held that even if the defendant could successfully plead witness immunity as a defence to any future charge under s 178BB, that immunity only becomes operative if and when he is actually charged and pleads it. The immunity does not retroactively negate the existence of the conduct itself, nor does it prevent that conduct from meeting the statutory definition of "serious crime related activity" under the Act.
Independently, the court found it more probable than not that the defendant's conduct amounted to perverting the course of justice under s 319 of the Crimes Act 1900. Because perverting the course of justice is itself a well-established exception to witness immunity, this finding provided an alternative and self-sufficient basis for making the order, regardless of whether immunity applied to the s 178BB conduct.
Once the statutory preconditions under s 27(2) are satisfied on the balance of probabilities, Rothman J confirmed that the Supreme Court has no residual discretion to refuse to make a Proceeds Assessment Order. The court is required to make the order.
Orders Made
- Orders made under s 27 of the Criminal Assets Recovery Act 1990 (NSW) against the first defendant (form of orders to be settled after hearing the parties)
Key Takeaways
- Witness immunity does not extend to proceedings under the Criminal Assets Recovery Act 1990 (NSW): the statutory recovery regime is distinct from the common law immunity protecting witnesses in civil litigation between private parties.
- A defendant's potential immunity from criminal prosecution does not erase the underlying conduct for the purposes of the Act. The conduct may still satisfy the definition of "serious crime related activity" even where immunity might operate as a defence to a charge.
- Perverting the course of justice (s 319, Crimes Act 1900) falls within a recognised exception to witness immunity, meaning that false statements made in a court context may support a recovery order on that basis irrespective of any immunity from a fraud charge.
- Under s 27(2) of the Criminal Assets Recovery Act 1990, once the court is satisfied on the balance of probabilities that the relevant preconditions are met, it must make a Proceeds Assessment Order and retains no discretion to decline.
- The Supreme Court confirmed that the fraud offence under s 178BB of the Crimes Act 1900 (now relevantly involving dishonesty) constitutes an offence involving fraud for the purposes of "serious crime related activity," consistent with the earlier decision in Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), ss 10, 22, 27
- Crimes Act 1900 (NSW), ss 178BB, 319
Cases
- Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
- Cabassi v Vila (1940) 64 CLR 130
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12
- R v Rogerson (1992) 174 CLR 268
- Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
- R v Wallis (1949) 78 CLR 529
- Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 78 ALJR 1231; [2004] HCA 40