Director of Public Prosecutions v Kingswell

The Director of Public Prosecutions appealed to the New South Wales Court of Appeal against orders made by a judge of the Supreme Court of New South Wales concerning the forfeiture of property under the *Proceeds of Crime Act 1987* (Cth). The dispute centred on the extent of the court's power to exclude existing interests from forfeiture orders.

The primary legal issue before the Court of Appeal was whether section 48 of the *Proceeds of Crime Act 1987* (Cth) authorised a court, when making a forfeiture order, to create a new interest in the property for the purpose of excluding it from forfeiture, or whether it only permitted the exclusion of pre-existing interests.

The Court of Appeal held that section 48(1) of the Act, which allows a court to exclude from a forfeiture order "any part of the property in which any other person has an interest", does not empower the court to create a new interest in the property for the benefit of another person. Rather, it refers to the recognition and exclusion of interests that already exist at the time the forfeiture order is made. The court reasoned that to interpret the section otherwise would be to permit the court to effectively grant a proprietary interest where none existed, which was beyond the scope of the statutory power.

Leave to appeal was granted, and the appeal was allowed. The orders made by the Supreme Court were set aside.