New South Wales Crime Commission v Subakti [2016] NSWSC 1421

New South Wales Crime Commission v Subakti [2016] NSWSC 1421

The applicant failed to discharge the onus under s 25 because he did not prove, by cogent evidence from primary business records or reliable corroboration, that the funds used to acquire and service the forfeited property and accounts were not even partly derived from illegal activity. Bio Form was the source of living expenses and mortgage payments, but its lawful earnings were not established and there was evidence of drug and steroid sales connected with the business. For the proceeds assessment application, the Commission proved relevant expenditure during the six years before the application, the defendant had engaged in serious drug-related activity, and the defendant failed to...

Jurisdiction
Australia
Judgment Date
06 October 2016
Procedural Posture
Application Under the Criminal Assets Recovery Act 1990 for Exclusion Orders and a Proceeds Assessment Order / Principal Judgment After Hearing of the Defendant/applicant's Notice of Motion for Exclusion Orders and the Plaintiff's Application for a Proceeds Assessment Order
Outcome
The exclusion order application under s 25 was to be dismissed. The Commission established the basis for a proceeds assessment order under s 27, with an order to be made after relisting subject to any further submissions on calculation.
Legal Topics
['exclusion of Property From Assets Forfeiture Order Under S 25 of the Criminal Assets Recovery Act 1990' 'proceeds Assessment Order Under S 27 of the Criminal Assets Recovery Act 1990' 'illegally Acquired Property' 'serious Crime Related Activity' 'drug Supply Proceeds' 'onus of Proof']
['criminal Assets Recovery' 'confiscation of Property' 'proceeds of Crime'] ['exclusion of Property From Assets Forfeiture Order Under S 25 of the Criminal Assets Recovery Act 1990' 'proceeds Assessment Order Under S 27 of the Criminal Assets Recovery Act 1990' 'illegally Acquired Property' 'serious Crime Related Activity' 'drug Supply Proceeds' 'onus of Proof']

Case Brief

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Procedural Posture

Application Under the Criminal Assets Recovery Act 1990 for Exclusion Orders and a Proceeds Assessment Order / Principal Judgment After Hearing of the Defendant/applicant's Notice of Motion for Exclusion Orders and the Plaintiff's Application for a Proceeds Assessment Order

Legal Issues

  1. 1 ['Whether the defendant/applicant proved that his interests in the forfeited property were not illegally acquired property for the purposes of s 25 of the Criminal Assets Recovery Act 1990.' 'Whether the New South Wales Crime Commission established the basis for a proceeds assessment order under s 27 of the Criminal Assets Recovery Act 1990.' 'What amount should be treated as proceeds derived from illegal activity under s 28 of the Criminal Assets Recovery Act 1990.' 'Whether the defendant proved that relevant expenditure was funded from income or money from sources unrelated to illegal activity.']

Ratio Decidendi

The applicant failed to discharge the onus under s 25 because he did not prove, by cogent evidence from primary business records or reliable corroboration, that the funds used to acquire and service the forfeited property and accounts were not even partly derived from illegal activity. Bio Form was the source of living expenses and mortgage payments, but its lawful earnings were not established and there was evidence of drug and steroid sales connected with the business. For the proceeds assessment application, the Commission proved relevant expenditure during the six years before the application, the defendant had engaged in serious drug-related activity, and the defendant failed to...

Court Disposition

The exclusion order application under s 25 was to be dismissed. The Commission established the basis for a proceeds assessment order under s 27, with an order to be made after relisting subject to any further submissions on calculation.

Orders

  • ['The application by notice of motion filed on 1 August 2014 for an exclusion order under s 25(1) of the Criminal Assets Recovery Act 1990 should be dismissed.' 'Subject to any further submissions by the parties, an order under s 27 of the Criminal Assets Recovery Act 1990 is to be made in favour of the plaintiff...