NSW Crime Commission v O B & Anor [2002] NSWSC 633

NSW Crime Commission v O B & Anor [2002] NSWSC 633

The applicant failed to discharge the evidentiary burden to establish that the restrained funds were not the proceeds of illicit drug activity; on the evidence, the funds in the bank accounts were found to be illegally acquired property derived from a drug enterprise involving the applicant. As a result, the legislative bar in s 16A(1)(b) precludes any order releasing funds for legal expenses. The application must be refused.

Jurisdiction
Australia
Judgment Date
18 July 2002
Procedural Posture
Application to Vary Restraining Order (proceeds of Crime) / Judgment on Application for Legal Expenses From Restrained Property
Outcome
Application refused with costs.
Legal Topics
['restraining Order' 'legal Expenses' 'illegally Acquired Property' 'drug Trafficking' 'burden of Proof']
['criminal Law' 'proceeds of Crime'] ['restraining Order' 'legal Expenses' 'illegally Acquired Property' 'drug Trafficking' 'burden of Proof']

Case Brief

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Procedural Posture

Application to Vary Restraining Order (proceeds of Crime) / Judgment on Application for Legal Expenses From Restrained Property

Legal Issues

  1. 1 ['Whether the restrained property (bank accounts) is illegally acquired property under Criminal Assets Recovery Act 1990, s 16A(1)(b)' 'Whether the applicant met all statutory requirements for access to restrained funds for reasonable legal expenses' "Whether the applicant's evidence is sufficiently credible to establish the origin of funds"]

Ratio Decidendi

The applicant failed to discharge the evidentiary burden to establish that the restrained funds were not the proceeds of illicit drug activity; on the evidence, the funds in the bank accounts were found to be illegally acquired property derived from a drug enterprise involving the applicant. As a result, the legislative bar in s 16A(1)(b) precludes any order releasing funds for legal expenses. The application must be refused.

Court Disposition

Application refused with costs.

Orders

  • ['Application for legal costs out of restrained property is refused.' 'Applicant to pay costs.']