DPP (Cth) v Mylecharane [2007] NSWSC 1174

DPP (Cth) v Mylecharane [2007] NSWSC 1174

The trustee failed to establish that the $250,000 was Moussa's property, because the evidence that it had been borrowed from Reddy and given to Mylecharane for subcontractors was implausible, inconsistent, and not accepted. The $250,000 was not proceeds of Mylecharane's offence because the possession of the money was an element of the offence and the money was not derived or realised from the commission of that offence. However, the money was an instrument of the offence because Mylecharane's possession of it amounted to use of the money and the offence could not have been committed without it. The discretionary factors did not justify refusing forfeiture, and the trustee could not...

Jurisdiction
Australia
Judgment Date
24 October 2007
Procedural Posture
Application Under the Proceeds of Crime Act 2002 (cth) for Forfeiture of Seized Cash, With Cross Application for Exclusion From Forfeiture / Determination After Gregory Mylecharane's Conviction for an Offence Under S 400.9 of the Commonwealth Criminal Code
Outcome
Forfeiture order made; exclusion application dismissed.
Legal Topics
['forfeiture Orders' 'exclusion Orders' 'proceeds of an Offence' 'instrument of an Offence' 'seized Cash' 'trustee in Bankruptcy']
['criminal Law' 'proceeds of Crime' 'bankruptcy'] ['forfeiture Orders' 'exclusion Orders' 'proceeds of an Offence' 'instrument of an Offence' 'seized Cash' 'trustee in Bankruptcy']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under the Proceeds of Crime Act 2002 (cth) for Forfeiture of Seized Cash, With Cross Application for Exclusion From Forfeiture / Determination After Gregory Mylecharane's Conviction for an Offence Under S 400.9 of the Commonwealth Criminal Code

Legal Issues

  1. 1 ["Whether the sum of $250,000 was the property of Mr Andrew as trustee of Moussa's bankrupt estate." 'Whether the sum of $250,000 was proceeds of the offence of which Mylecharane had been convicted.' 'Whether the sum of $250,000 was an instrument of the offence of which Mylecharane had been convicted.' 'If the sum of $250,000 was an instrument of the offence, whether the Court should exercise its discretion to make a forfeiture order.' 'Whether the requirements for an exclusion order under s 73 of the Proceeds of Crime Act 2002 (Cth) were satisfied.']

Ratio Decidendi

The trustee failed to establish that the $250,000 was Moussa's property, because the evidence that it had been borrowed from Reddy and given to Mylecharane for subcontractors was implausible, inconsistent, and not accepted. The $250,000 was not proceeds of Mylecharane's offence because the possession of the money was an element of the offence and the money was not derived or realised from the commission of that offence. However, the money was an instrument of the offence because Mylecharane's possession of it amounted to use of the money and the offence could not have been committed without it. The discretionary factors did not justify refusing forfeiture, and the trustee could not...

Court Disposition

Forfeiture order made; exclusion application dismissed.

Orders

  • ['The sum of $286,900 be forfeited to the Commonwealth.' 'The application for an order that the sum of $250,000 be excluded from the forfeiture order is dismissed.']