New South Wales Crime Commission v Kelly & Ors; Kelly & Ors v New South Wales Crime Commission

[2003] NSWCA 245

NSW Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Confiscation of criminal proceeds
3. › Assets forfeiture orders
4. › Relief from hardship for dependants
5. › Whether application may be made after forfeiture order made
6. › Meaning of 'will' in s 24(1)
7. › Criminal Assets Recovery Act 1990 (NSW), s 24
1. Criminal Law
2. › Confiscation of criminal proceeds
3. › Assets forfeiture orders
4. › Effect of acquittal on forfeiture proceedings
5. › Whether acquittal precludes finding of serious crime related activity
6. › Criminal Assets Recovery Act 1990 (NSW), ss 6(1), 22(2)
1. Criminal Law
2. › Confiscation of criminal proceeds
3. › Proceeds assessment orders
4. › Assessment of value of proceeds
5. › Method of calculation
6. › Mathematical error
7. › Criminal Assets Recovery Act 1990 (NSW), s 27
1. Practice and Procedure
2. › Stay of civil proceedings
3. › Felony-tort rule
4. › Whether rule survives in Australia
5. › Whether civil confiscation proceedings must await criminal proceedings

Quick Take

Section 24 of the Criminal Assets Recovery Act 1990 (NSW) permits dependants to apply for hardship relief after an assets forfeiture order has been made; the use of the future tense in the section is a drafting error and does not impose a temporal limitation. An acquittal at criminal trial does not preclude a court from making findings of serious crime related activity for the purposes of assets forfeiture under the Act. The value to be assessed under s 27 is the value of the proceeds (gross), not net profit, and a rough and ready approach to quantification is appropriate where precise records are unavailable.