New South Wales Crime Commission v Gardiner [2001] NSWSC 350

New South Wales Crime Commission v Gardiner [2001] NSWSC 350

The applicant failed to prove on the balance of probabilities that the $40,700 seized from his house was wholly unconnected to illegal activity, since $10,799 was directly traced to the proceeds of illegal activity related to prior equity proceedings. Thus, he is not entitled to an exclusion order under s 25. However, under s 26, a declaration and order for the balance ($29,901) will be made as it is more probable than not that these funds are from legitimate farming activities.

Jurisdiction
Australia
Judgment Date
08 May 2001
Procedural Posture
Civil Proceeding / Judgment
Outcome
application for exclusion order under s 25 refused; declaration and order under s 26 for specified proportion granted, subject to forfeiture order
Legal Topics
['restraining Orders' 'forfeiture' 'exclusion Orders' 'illegally Acquired Property']
['criminal Law' 'criminal Assets Recovery'] ['restraining Orders' 'forfeiture' 'exclusion Orders' 'illegally Acquired Property']

Case Brief

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Procedural Posture

Civil Proceeding / Judgment

Legal Issues

  1. 1 ["Whether $40,700 seized from applicant's house was illegally acquired property under the Criminal Assets Recovery Act 1990" 'Whether applicant is entitled to an exclusion order under s 25 or declaration and payment under s 26 regarding part of the seized money']

Ratio Decidendi

The applicant failed to prove on the balance of probabilities that the $40,700 seized from his house was wholly unconnected to illegal activity, since $10,799 was directly traced to the proceeds of illegal activity related to prior equity proceedings. Thus, he is not entitled to an exclusion order under s 25. However, under s 26, a declaration and order for the balance ($29,901) will be made as it is more probable than not that these funds are from legitimate farming activities.

Court Disposition

application for exclusion order under s 25 refused; declaration and order under s 26 for specified proportion granted, subject to forfeiture order

Orders

  • ['Application for exclusion order under s 25 dismissed' 'Applicant entitled to declaration and order under s 26 for $29,901 of the funds, to be made after forfeiture order' 'Proceedings stood over for parties to submit minutes of declarations and orders']