Citation: NSW Crime Commission v Ollis [2006] NSWSC 459
Court: Supreme Court of New South Wales (Common Law Division)
Date: 18 May 2006
Judge(s): Rothman J
Background
The NSW Crime Commission brought proceedings under the Criminal Assets Recovery Act 1990 (NSW) against several defendants, including the first defendant, seeking a proceeds assessment order. Such an order requires a person to pay the Crown an amount assessed as the value of proceeds derived from illegal activity. On 21 April 2006, Rothman J had already determined that the preconditions for making the order under s 27 of the Act were satisfied.
The parties could not agree on the form the initial order should take. The Commission proposed a general judgment on its claim for a proceeds assessment order, leaving the identification of illegal activities and the quantification of proceeds to a subsequent assessment hearing. The first defendant argued that the order itself must specify the particular illegal activity from which proceeds were derived.
Legal Issues
- Whether an initial proceeds assessment order under s 27 of the Criminal Assets Recovery Act 1990 must, at the time it is made, specify each illegal activity from which the defendant is alleged to have derived proceeds.
- Whether the court may deal with the determination of illegal activity and the assessment of proceeds at separate, later hearings, rather than resolving all matters in a single proceeding.
Decision
Rothman J rejected the first defendant's submission that the initial order must identify each illegal activity. His Honour examined the statutory scheme, in particular ss 27 and 28 of the Act, and found that the Act contemplates three distinct matters to be determined: satisfaction of the s 27(2) preconditions; the extent of any illegal activity; and the value of proceeds from those activities.
Nothing in the legislation required all three matters to be resolved simultaneously. Sections 28(2) and (3) address the totality of the final hearing process, while s 28(1) makes clear that a hearing may concern only the assessment stage. Construing the Act to mandate a single comprehensive hearing would unnecessarily lengthen proceedings and require the Commission to adduce detailed evidence of all illegal activities at a stage when only the s 27(2) criteria needed to be established.
Rothman J concluded that once the s 27(2) preconditions are satisfied, the court may make the initial order and then deal with the identification of illegal activity and the assessment of proceeds at separate hearings. This approach was described as sensible and consistent with the scheme of the Act.
Orders Made
- Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005, judgment was given for the plaintiff (NSW Crime Commission) on its claim for a proceeds assessment order against the first defendant, for an amount to be assessed by the Court.
- The first defendant was ordered to pay the plaintiff's costs.
- The matter was adjourned to a date convenient to the parties for consequential orders.
Key Takeaways
- Under the Criminal Assets Recovery Act 1990 (NSW), an initial proceeds assessment order under s 27 does not need to specify the illegal activities from which proceeds were derived; that determination may occur at a later, separate hearing.
- Three distinct matters must ultimately be resolved before a final proceeds assessment order is made: satisfaction of the s 27(2) preconditions, identification of all relevant illegal activity, and assessment of the proceeds from that activity.
- A construction requiring all three matters to be litigated in a single hearing was rejected as inconvenient and unsupported by the text of the Act.
- "Illegal activity" under the Act is broader than "serious crime related activity": it includes any act or omission constituting an offence under NSW or Commonwealth law, meaning proceeds from a wider range of conduct may ultimately be assessed even if only serious crime related activity was relied upon to satisfy the initial threshold.
- The Supreme Court confirmed that the interlocutory, staged approach traditionally used in proceedings under s 27 is consistent with the Act's scheme and remains appropriate.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), particularly ss 6, 9, 10, 12, 22, 25, 26, 27, 28
- Uniform Civil Procedure Rules 2005 (NSW), Rule 13.1
Cases
- NSW Crime Commission v Ollis (unreported, NSWSC, Rothman J, 21 April 2006)