New South Wales Crime Commission v Hitchen

[2025] NSWSC 1268

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales Crime Commission v Hitchen [2025] NSWSC 1268

Hearing dates:

8 September 2025, written submissions closed 7 October 2025

Date of orders:

29 October 2025

Decision date:

29 October 2025

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest of Ross Andrew Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

(2) A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest of Geoffrey John Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

(3) An order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) forfeiting to, and vesting in, the Crown the interest of Ross Andrew Hitchen in the net proceeds of sale of the South Penrith property being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)”.

(4) An order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) forfeiting to, and vesting in, the Crown the interest of Geoffrey John Hitchen in the net proceeds of sale of the South Penrith property being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)”.

(5) An order that the defendants pay the plaintiff’s costs.

(6) An order that, otherwise, the amended summons filed on 9 December 2020 be dismissed.

Catchwords:

CIVIL – Criminal Assets Recovery Act 1990 (NSW) – substituted serious crime use property declarations under s 22AA and forfeiture orders under s 22 – whether interest in property an available interest for purposes of the Act – property sold and substituted serious crime use property declaration sought in respect of net proceeds of sale – whether original property was “used in, or in connection with” the serious crime related activity of the defendants – original property used to conceal a large commercial quantity of methylamphetamine for the purposes of supply – whether original property used in or in connection with manufacture of methylamphetamine by refinement – where the original property was used in, or in connection with the serious crime related activity of manufacturing and supplying a large commercial quantity of a prohibited drug contrary to ss 24 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – declarations and forfeiture orders made

STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – construction of s 9B – meaning of "used in, or in connection with”

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101

Confiscation of Proceeds of Crime Act 1989 (NSW), ss 4, 18

Crimes Act 1900 (NSW), s 193B

Crimes (Confiscation of Profits) Act 1985 (NSW) (repealed)

Criminal Assets Recovery Act 1990 (NSW), ss 5, 6, 9B,16A, 21C,22, 22A, 22AA, 25, 26

Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24, 25, 26

Evidence Act 1995 (NSW), s 140

Firearms Act 1996 (NSW), s 7A

Interpretation Act 1987 (NSW), ss 33, 34

Proceeds of Crime Act 1987 (Cth), s 48

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Director of Public Prosecutions (Cth) v Jeffery (1992) 58 A Crim R 310

Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727; [2000] NSWSC 394

Director of Public Prosecutions (SA) v George (2008) 102 SASR 246; [2008] SASC 330

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32

Grain Growers Limited v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359

Hitchen v R [2021] NSWCCA 293

Hitchen v R [2023] NSWCCA 51

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

New South Wales Crime Commission v Pettit [2021] NSWSC 980; 292 A Crim R 89

Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35

PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301

R v Hadad (1989) 16 NSWLR 476

R v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356

R v Ward, Marles and Graham [1989] 1 Qd R 194; (1987) 33 A Crim R 60

Rejfek v McElroy (1965) 112 CLR 517

SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; 98 ALJR 1273

Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38; (2000) ATPR 41-752

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367

Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Ross Andrew Hitchen (First Defendant)
Geoffrey John Hitchen (Second Defendant)

Representation:

Counsel:
A Tembe (Plaintiff)
T Kent (First and Second Defendant)

Solicitors:
New South Wales Crime Commission (Plaintiff)
Mark Mulock & Co (First and Second Defendant)

File Number(s):

2018/00327788

JUDGMENT

1. By an amended summons filed on 9 December 2020, the plaintiff, the New South Wales Crime Commission, seeks declarations under s 22AA of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) in respect of the net proceeds of sale of a property in South Penrith and forfeiture orders under s 22 of the CAR Act in respect of those proceeds. The South Penrith property was formerly owned by Geoffrey and Ross Hitchen, the first and second defendants respectively. Without disrespect and where appropriate, I shall refer to the defendants by their first names to avoid confusion. The other prayers for substantive relief by way of forfeiture of the South Penrith property and unexplained wealth orders were not pressed.

2. At the hearing before me on 8 September 2025, the principal, if not the only, issue for determination was in effect whether the South Penrith property met the description of “serious crime use property” in s 9B(1) of the CAR Act. At the end of that hearing, the parties sought and were granted leave to file further written submissions. The period for the filing of those submissions closed on 7 October 2025.

Background

3. The background to the proceedings can be summarised as follows.

The South Penrith property and the restraining and other orders

4. On 25 October 2018, the Commission commenced the proceedings seeking orders pursuant to the CAR Act against the two defendants. On that same day Harrison J made restraining orders pursuant to s 10A of the CAR Act in respect of all of the interests in property of the defendants, including the South Penrith property with the exception that any registered mortgagee of that property was not restrained from exercising its rights in respect of the property.

5. On 24 January 2020, Westpac Banking Corporation, as mortgagee, obtained possession of the South Penrith property as a result of default on the mortgage. The South Penrith property was eventually sold and the defendants became entitled to the net proceeds of sale, which were of substance, and which became subject to the restraining orders made on 25 October 2018.

6. On 25 November 2020, the Court made orders by consent varying the orders made on 25 October 2018 to allow the net proceeds of sale of the South Penrith property to be paid to the NSW Trustee and Guardian. In addition, on that day leave was granted to the Commission to file an amended summons taking into account the sale of the South Penrith property and the interests of each of the defendants in the net proceeds of sale.

7. As noted above, the amended summons was filed on 9 December 2020. The relevant prayers for relief are as follows:

“9A. A declaration pursuant to section 22AA of the Criminal Assets Recovery Act 1990 that the interest in property of Ross Andrew Hitchen in the net proceeds of sale of property specified in Schedule One hereto [the South Penrith property] (in the event of the sale of that property), is available for forfeiture as substituted serious crime use property (within the meaning of ‘serious crime use property’ and ‘substituted serious crime use property’ as defined in sections 9B and 22A of the Criminal Assets Recovery Act 1990).

9B. A declaration pursuant to section 22AA of the Criminal Assets Recovery Act 1990 that the interest in property of Geoffrey John Hitchen in the net proceeds of sale of property specified in Schedule One hereto (in the event of the sale of that property), is available for forfeiture as substituted serious crime use property (within the meaning of ‘serious crime use property’ and ‘substituted serious crime use property’ as defined in sections 9B and 22A of the Criminal Assets Recovery Act 1990).

9C. An order pursuant to section 22 of the Criminal Assets Recovery Act 1990 forfeiting to, and vesting in, the Crown the interest in property of Ross Andrew Hitchen in the net proceeds of sale of property specified in Schedule One hereto (in the event of the sale of that property), being an interest in property, suspected by an authorised officer, at the time of this application, of being an interest that is capable of being the subject of a substituted serious crime use property declaration (within the meaning of ‘substituted serious crime use property declaration’ as defined in section 22AA of the Criminal Assets Recovery Act 1990).

9D. An order pursuant to section 22 of the Criminal Assets Recovery Act 1990 forfeiting to, and vesting in, the Crown the interest in property of Geoffrey John Hitchen in the net proceeds of sale of property specified in Schedule One hereto (in the event of the sale of that property), being an interest in property, suspected by an authorised officer, at the time of this application, of being an interest that is capable of being the subject of a substituted serious crime use property declaration (within the meaning of ‘substituted serious crime use property declaration’ as defined in section 22AA of the Criminal Assets Recovery Act 1990).”

The offending and sentencing of the defendants

Geoffrey’s offending and sentence

8. On 29 November 2019, in the Local Court, Geoffrey was committed for trial to the District Court. The counts on the indictment were:

1. On 11 October 2018 in South Penrith possessing an unauthorised firearm, an air rifle, contrary to s 7A of the Firearms Act 1996 (NSW) which carries a maximum penalty of imprisonment for 5 years;

2. On 11 October 2018 in South Penrith knowingly dealing with the proceeds of crime, $15,250, contrary to s 193B(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of imprisonment for 15 years;

3. On 11 October 2018 in South Penrith knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug (methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) which carries a maximum penalty of imprisonment for life and a standard non-parole period of 15 years.

9. On 2 February 2020, in the District Court, Geoffrey entered a plea of guilty to count (1), the firearms charge. On 7 August 2020, after negotiations, he pleaded guilty to knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug (methylamphetamine) in place of count (3) with the proceeds of crime offence in count (2) to be taken into account on a Form 1.

10. On 12 October 2020, Geoffrey was sentenced to an aggregate sentence of imprisonment for 6 years commencing on 11 October 2018 with a non-parole period of 3 years 10 months expiring on 10 August 2022. Geoffrey’s appeal to the Court of Criminal Appeal against this sentence was unsuccessful: Hitchen v R [2021] NSWCCA 293.

Ross’s offending and sentence

11. On 6 December 2019, Ross pleaded guilty to the following offences in the Local Court and was committed for sentence to the District Court:

1. Between 17 August 2017 and 31 October 2018, at Glen Alpine conspiring to manufacture not less than the commercial quantity of a prohibited drug (methylamphetamine) contrary to s 26 and s 24(2) of the DMT Act which carries a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years;

2. On 11 October 2018 in South Penrith knowingly taking part in the supply of a large commercial quantity of a prohibited drug (1368.5 grams of methylamphetamine) contrary to s 25(2) of the DMT Act which carries a maximum penalty of imprisonment for life and a standard non-parole period of 15 years;

3. On 11 October 2018 in South Penrith possessing an unauthorised firearm, an air rifle, contrary to s 7A of the Firearms Act which carries a maximum penalty of imprisonment for 5 years.

12. A further offence, of knowingly dealing with the proceeds of crime, $15,250, contrary to s 193B(2) of the Crimes Act was taken into account on a Form 1.

13. On 3 August 2020, Ross was sentenced in the District Court to an aggregate sentence but this was the subject of a successful appeal to the Court of Criminal Appeal: Hitchen v R [2023] NSWCCA 51. On 14 December 2022, the Court of Criminal Appeal resentenced Ross to an aggregate sentence of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 October 2022.

The South Penrith property inherited from their father

14. When the two defendants’ father died in 2014, they inherited from him a residential property in South Penrith. They became the registered proprietors as tenants in common of the South Penrith property when the transmission application, lodged on 24 October 2016, was recorded on 26 October 2016.

15. In 2017 and 2018, Ross and Geoffrey resided in the South Penrith property.

The activities of Ross and Geoffrey in 2017 and 2018

16. Between August 2017 and October 2018, Ross was involved in a conspiracy to manufacture methylamphetamine at a location in Glen Alpine. There was no significant evidence to suggest that Geoffrey was involved in the manufacture of methylamphetamine at Glen Alpine or any location other than the South Penrith property.

17. On 17 August 2017, police installed a surveillance device in Ross’s Ford Territory.

18. On 11 October 2017, Ross was recorded travelling to Bunnings Hardware at North Penrith where he purchased 4 litres of acetone and 1 litre of hydrochloric acid.

19. On 25 October 2017, Geoffrey was recorded travelling to Bunnings Hardware at North Penrith where he purchased hydrochloric acid.

20. On 15 November 2017, Ross and another person were observed attending Lab Supply at Mascot where the other person purchased a 5 litre Buchner flask, a Buchner funnel, filter papers and a connecting sleeve, which are items that can be used in the manufacture of methylamphetamine. These items were carried in two large boxes which Ross took to the South Penrith property.

21. On 22 January 2018, there was a conversation between Ross and Geoffrey in which Ross asked why “the step was left open” and Geoffrey replied “it was open when I parked the car. I ran the car over it”. Ross said “If the cops come round here we’ve got real problems. If they come here, we’ll be doing 20”. The next day, 23 January 2018, Ross said to Geoffrey:

“I’m gonna tell you one time cunt. And you listen to me. If you cause a drama at that house, and the coppers come round and lose my mate’s money and gear I will fucking bury you and disown you. You will have a tribe of cunts waiting to kill you.”

22. In those conversations in January 2018, the words “here” and “that house” refer to the South Penrith property. The “step” to which Ross and Geoffrey were referring was a step from a small staircase in the garage at the South Penrith property, which is described in more detail below.

23. On 15 February 2018, Ross was recorded speaking with Geoffrey and saying to him “you went and cooked the gear, you made it.”

24. Other parts of the recorded conversations between Ross and Geoffrey establish that during the period from February to October 2018 they were engaged in the supply of prohibited drugs, including travelling to locations in Victoria and South Australia. I am satisfied that, in their recorded conversations during this period, Ross and Geoffrey used the word “gear” to refer to prohibited drugs.

The arrest of Ross and Geoffrey and the search of the South Penrith Property

25. On 11 October 2018, Ross and Geoffrey were stopped by police while travelling in the Ford territory in South Penrith. When both men were arrested, $15,250 cash was located inside Ross’s underpants. This cash was in the joint possession of Ross and Geoffrey and represented the proceeds of past drug sales.

26. Also on 11 October 2018, police executed a covert search warrant at the South Penrith property. The block sloped upwards from the roadway which resulted in the premises having under-house storage towards the front of the house. As part of the house, there was also a garage at the front.

27. For the purposes of the search of the South Penrith property, it was divided into 7 areas:

1. area A: garage;

2. area B: kitchen;

3. area C: lounge room;

4. area D: bedroom 1;

5. area E: bedroom 2;

6. area F: carport/bar area;

7. area G: underneath house.

28. In area A, the garage, there was a small set of stairs (5 steps in total) that led up to a small landing and a door, through which the rest of the house could be accessed. The bottom step of this set of stairs was dislodged and sitting away from the rest. This is the step referred to by Ross and Geoffrey in their recorded conversations on 22 and 23 January 2018. When that step was dislodged, a small area under the stairs was revealed in which 1386.54 g of methylamphetamine in a refined and unrefined state were found stored as follows:

1. 83.2 g liquid in a soft drink bottle;

2. 1078.5 g liquid in a soft drink bottle

3. 179.8 g solid in a plastic bag;

4. 27.88 g solid in a water bottle; and

5. 17.16 g solid in a water bottle.

29. These drugs were stored in this location for the purpose of eventual supply.

30. In the garage area, metal drums, metal tins and plastic containers some of which were full, some partly full and others empty were located. The labels on these items indicated that they contained or had contained methanol, toluene, acetone, hydrochloric acid or methylated spirits. All of these chemicals are, or can be used, in the manufacture of methylamphetamine. One 20 litre white metal drum had a small quantity of brown liquid with brown sediment in it and on analysis this was found to contain methylamphetamine and N,N-dimethylamphetamine.

31. Also in the garage area, the items found included an electric fry pan, an electric hot plate, a 20 litre plastic bucket and lid, a battery operated pH metre, a respirator with filter attached, an electric induction cooktop, a clear glass rectangular tray and digital scales. Swabs or other samples taken from all of these items were found to contain methylamphetamine.

32. In addition, other items that could be used in the manufacture of methylamphetamine were found in the garage including, for example, lengths of tubing attached to a vacuum water aspirator assembly, a measuring jug and a plastic drum with lid, tap and O-ring.

33. Furthermore, swabs were taken from the left-hand side wall of the garage, the right-hand side wall of the garage behind a refrigerator, and from the underside of an air-conditioning unit in the garage. All of these swabs were found to contain methylamphetamine.

29. In area B, the kitchen, nine measuring jugs, two measuring cannisters, eight plastic funnels and seven rectangular glass trays were found but were not examined for the presence of methylamphetamine. Other items found in area B included a container of hydrochloric acid, a container of methylated spirits, a single cooktop electric hotplate and boxes of filter papers.

30. A swab taken from a circular opening in the ceiling above hot plates in the kitchen, area B, contained methylamphetamine as well as nicotine. From the description of this opening in the evidence, I infer that the circular opening may previously have been the location of an extraction fan.

31. In the lounge room, area C, a vacuum heat sealer unit and sealer bags were found.

32. In area D, bedroom 1, a digital hotplate and stirrer unit, including probe, retort stand, bosshead clamp and bracket, together with 3 magnetic stirrer bars, was located. A swab taken from the hotplate contained methylamphetamine.

33. Bedroom 2, area E, a 5 litre Buchner flask, a 10 litre glass beaker and white plastic Buchner funnel were located but appeared clean and were not examined for the presence of methylamphetamine. In the bedroom, a .177 calibre single shot air rifle was also found under the bed.

34. In area F, the carport/bar area, a half full four litre tin labelled acetone and a full five litre bottle labelled hydrochloric acid were found, together with a pair of plastic-coated gloves.

35. Area G underneath the house was found to contain a length of ventilation ducting attached to a circular extraction fan unit. Swabs from the fan exterior and interior contained methylamphetamine and amphetamine.

36. In the ceiling cavity of the South Penrith property, a further length of ventilation ducting attached to a circular extraction fan unit was located. Swabs taken from the fan exterior and interior also contained methylamphetamine.

37. The statement of facts in relation to Ross’s offending also established that DNA matching Ross’s was located on the respirator found in the garage, on a glove found in the carport and on two bottles and the plastic bag containing 179.8 g of methylamphetamine found under the step in the garage.

38. There were photographs of the items referred to above in evidence before me at hearing.

The examinations of Ross and Geoffrey Hitchen

44. On 15 October 2024, Geoffrey was examined under s 12(1)(b)(i) of the CAR Act. Similarly, Ross was examined on 17 October 2024. The transcripts of these interviews were in evidence before me. By virtue of s 13(2)(b), statements or disclosures made by a person in answer to a question put in the course of such an examination are admissible in proceedings such as these because they are proceedings on an application under the CAR Act.

45. In his interview, Geoffrey acknowledged that he was aware of the drugs under the steps in the garage but maintained it was only about 200 g not 1.3 kg based on purity. In addition, when asked about the pH testers, he said that he knew about the “stuff [that] was there for over 12 months” and that another person had left it there but he did not come to pick it back up. It was also said that that person promised to pay Ross money for storing the items and to pay legal fees if things went wrong but he did not pay. Geoffrey said that he did not go into the garage and the person dumped the items at their house and his brother put it away. Geoffrey also said that he had nothing to do with manufacture of methylamphetamine. Geoffrey denied “taking meth” at the time but qualified that saying he had done so maybe just once or twice and later “a gram, maybe… once every three months”. Further, Geoffrey denied that methylamphetamine was manufactured or refined at the South Penrith property and said that he did not know how to manufacture it. When asked about the presence of methylamphetamine on the walls of the garage and around the circular opening above the hot plates in the kitchen, Geoffrey said that he did not believe that methylamphetamine was found there. Geoffrey was emphatic that he never went into the garage and said it was locked by Ross but conceded that he went in once when he parked the car and ran over the step there.

46. In Ross’s interview, although he had pleaded guilty to a deemed supply offence, he denied actually “supplying” prohibited drugs and said it was “a storage thing”. As to the drugs found under the step in the garage, Ross maintained it was only about 200 g of pure methylamphetamine. According to Ross, the drugs were dropped off with “all that other garbage that was in the garage”. They had been left there prior to August 2017 and the person was going to pay $5,000 for storing it but he never paid. Nor did he pay Ross’s legal expenses, if he was caught with the drugs, which he said he would do. Another person asked Ross to get rid of the frying pans and other equipment under the tarp in the garage. Ross was going to get a skip bin to dispose of it but did not get around to it. Ross said that the things found in the garage were “just rubbish” from Glen Alpine where there was a methylamphetamine lab but he was not sure whether they manufactured anything there. Ross also said that the exhaust or extractor fans came from the same location. As to the drugs under the stair, Ross thought it was poor quality and doubted whether it could be turned into “crystal” being “like 80g of meth oil” and “the other stuff was like speed”. Ross also gave an account of how other items found in various rooms of the South Penrith property came to be there. He denied that the drugs under the stairs came from the Glen Alpine house and that any drugs were manufactured or refined at the South Penrith property. The Buchner flask and the glass beaker found under the bed in Ross’s bedroom were said to have been purchased for the Glen Alpine house and the acetone was for cleaning glass and the hydrochloric acid for killing “moss and stuff”. The drugs under the stairs were handed to Ross and he put them there. When asked how the presence of methylamphetamine in the various locations swabbed in the South Penrith property could be explained, Ross said he thought it was “a mistake or something”. As to whether Ross was paid to store the “rubbish”, the “materials that were from Glen Alpine”, he said “He just paid me some money, so I did it” and this was $500. Then Ross agreed that he was not paid the $5000 for storing the drugs but said was paid $500 for disposing of “the materials that were from Glen Alpine”. Ross denied using drugs even socially but said that he had tried it but was not “a drug user”.

47. Ross and Geoffrey did not give evidence in these proceedings.

The expert evidence

48. The Commission adduced expert evidence from Mr Shane Cameron who holds a Bachelor of Science (Applied Chemistry) degree and a Master of Science (Forensic Science) degree, both from the University of Technology Sydney. Mr Cameron is a chartered member of the Royal Australian Chemical Institute and a member of the Australian and New Zealand Forensic Science Society and has over 18 years’ experience working in the forensic drug chemistry field. His experience included being a forensic chemist for the Australian Federal Police as a member of a unit performing examinations of seized illicit drug items and associated materials, including physical examinations, chemical analysis and fingerprinting as well as providing technical advice on illicit drugs and precursor chemicals to investigators. In addition, he worked at the National Measurement Institute in the forensic drug laboratory. Since 2018, he has worked as a forensic chemist within New South Wales Health Pathologies Forensic & Analytical Science Service (FASS) Illicit Drugs Analysis Field Operations Unit. In this role his primary duties include the chemical analysis of various exhibits seized from clandestine drug laboratories, supervision of analytical staff, generation certificates of analysis for Court purposes, and provision of technical scientific advice relating to clandestine manufacture of illicit drugs. A significant amount of Mr Cameron’s time has been spent analysing chemicals and reaction mixtures seized from clandestine drug laboratories, resulting in him developing a strong working knowledge of illicit manufacture of drugs. I am satisfied that Mr Cameron is well qualified to express opinions concerning the manufacture of prohibited drugs, swab results and items found at the South Penrith property and whether the house was or could have been used as a site for the manufacture, including refining, of methylamphetamine.

49. The defendant called expert evidence from Emeritus Professor Brynn Hibbert, who, from 1987 to 2013, held the Chair of Analytical Chemistry at the University of New South Wales. He holds degrees of Bachelor of Science (Hons 1) in chemistry and Doctor of Philosophy in chemistry, both from the University of London. Prof Hibbert is a Fellow of the Royal Society of Chemistry, a Fellow of the Royal Australian Chemical Institute and a member of the Australian Academy of Forensic Sciences. He has received a number of medals and prizes in the course of his distinguished career and has published on amphetamine manufacture, on analogue drug laws in Australia and on inferences that can be drawn from clandestine drug laboratories, focusing on the manufacture of amphetamines. In Prof Hibbert’s case, I am also satisfied that he is well qualified to express opinions concerning the same matters as Mr Cameron has opined upon.

50. The most common form of methylamphetamine is the solid or crystalline form, which is typically a salt such as methylamphetamine hydrochloride. Methylamphetamine hydrochloride is formed when hydrochloric acid is added to methylamphetamine oil (free-base). This process can be carried out in a solvent in which the resulting salt is sparingly soluble, so that the salt can precipitate out leaving behind some of the byproducts and impurities in the liquid. Methylamphetamine salts are soluble in water and less so in acetone.

51. The processes for refining methylamphetamine include crystallisation, which involves dissolving the material to be purified in the minimum amount of a hot solvent, for example water, and then allowing the solution to cool. Generally, the slower the cooling process the larger the crystal growth. When material being purified is dissolved in a solvent, a second solvent in which the material is less soluble, such as acetone, can also be added. Where methylamphetamine salts remain in solution when the mixture is cold, the volume of the liquid can be reduced by heating the mixture to evaporate off the acetone and water. The main function of the crystallisation process is to dissolve all the material and crystallise the product and leave some of the impurities remaining in the liquid. The solid crystals can be recovered by filtration thus separating the product from some of the impurities.

52. It is common practice for illicit drugs to be diluted, or “cut”, with other materials at various stages in the supply chain. These materials commonly include dimethyl sulfone, which is routinely detected as a dilutant in samples of methylamphetamine in New South Wales.

53. Mr Cameron’s opinion was that, based on his knowledge and experience, the items and chemicals found at the South Penrith property and the results of testing for the presence of methylamphetamine on various items and locations at the South Penrith property:

1. items seized from the South Penrith property were consistent with actions to manufacture methylamphetamine by refinement; and

2. methylamphetamine had been manufactured by refinement at the South Penrith property.

54. Prof Hibbert agreed that items seized from the South Penrith property were consistent with actions to manufacture methylamphetamine by refinement at some location but his opinion was that, while methylamphetamine could have been manufactured by refinement at the South Penrith property, the evidence was not inconsistent with items having been brought to the South Penrith property after manufacture had occurred at another location.

55. In addition to their written evidence, the experts were examined concurrently and there was little disagreement between them. Both witnesses in effect accepted that the chemical evidence was not inconsistent either with the items found at the South Penrith property being used to manufacture methylamphetamine by refinement there or with the items having been brought to the property after manufacture at another location.

56. There was no significant disagreement between the experts as to the processes for the refinement of the hydrochloride form of methylamphetamine by dissolving and recrystallisation. In addition, it was accepted that it would have taken in the order of 10 minutes for some of the equipment at the South Penrith property to be assembled or disassembled. And, subject to there being a seal that would go between the flask and the funnel, when assembled it would be capable of refining methylamphetamine into a crystalline form. In addition, if the plastic funnels were used as a filtration device, without the Buchner funnel and the vacuum, refinement could still be achieved but it would take longer. Both witnesses agreed that the necessary equipment and chemicals for refinement were at the South Penrith property.

57. The experts were also agreed that the substances found under the step also included:

1. 83.2 g of viscous clear yellow liquid which was methylamphetamine in an unrefined state of 70.05% purity; and

2. 179.8 g of off-white to yellow crystalline substance in a plastic bag was methylamphetamine in a refined state with purity in the range of 60-80%.

58. In addition, Mr Cameron noted that the 27.88 g and 17.16 g of solid substances found under the step in the garage were methylamphetamine with the “common cutting agent” dimethyl sulfone in them.

59. As to the presence of methylamphetamine detected in the limited number of swabs taken from the walls in the garage and the circular opening above the hotplates in kitchen, both witnesses accepted that there was no data as to the quantity of methylamphetamine detected. The experts generally agreed that the methylamphetamine could have been deposited as a result of the drug being heated to the temperature necessary to convert it to a gas, which may have occurred as a result of: (a) somewhat inexpert attempts at refinement involving overheating or spillage of solid or liquid methylamphetamine; or (b) consuming the drug by smoking it. It was not suggested that there were other likely methods by which the walls and the opening above the hotplates would have received deposits of the drug.

What occurred at the South Penrith property

60. Whether the South Penrith property meets the description of “serious crime use property” in s 9B(1) of the CAR Act by being “property that was used in, or in connection with, a serious crime related activity” depends on what occurred at that property. In that regard, I make a number of findings.

61. First, I am comfortably satisfied, on the balance of probabilities taking into account the matters in s 140(2) of the Evidence Act 1995 (NSW) which is the applicable standard of proof, ^[1] that unrefined methylamphetamine and crystalline refined methylamphetamine, totalling more than 1.3 kg (although of varying purities), were stored by Ross and Geoffrey at the South Penrith property in and about 2017 and 2018 by being hidden in the area under the steps leading from the garage to the rest of the house and that in order to gain access to that area one step had to be dislodged. In addition, the storage of those drugs was for the purpose of eventual supply.

    1. See s 5(1) and (2)(b) of the CAR Act and s 140 of the Evidence Act 1995 (NSW). Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities" as referred to in Rejfek v McElroy (1965) 112 CLR 517 at 521 and Briginshaw v Briginshaw (1938) 60 CLR 336 at 362: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [57].

62. Secondly, I find, based on the evidence as a whole and, in particular, the nature of the equipment found at the South Penrith premises, and the presence of methylamphetamine detected on various items of equipment found in the property, together with Ross’s DNA on various items, that equipment and chemicals which had been used in the manufacture of methylamphetamine by refinement with Ross’s involvement were stored in the South Penrith property in the garage, in the carport, in the area under the house, and in the roof cavity.

63. Thirdly, in relation to the issue of whether methylamphetamine was manufactured by refinement at the South Penrith property, I accept the evidence of the two experts that methylamphetamine could have been manufactured by refinement at the South Penrith property during the period when the equipment and chemicals were there in about 2017 to 2018. In addition, the presence of methylamphetamine on the walls of the garage, behind a refrigerator and underneath the air conditioning unit and in the kitchen around the circular opening above the hot plates is consistent with refinement of methylamphetamine actually being undertaken there, even if somewhat inexpertly, as Prof Hibbert explained.

64. Nonetheless, I accept the experts’ evidence that it is possible that the presence of methylamphetamine in those locations could have been the result of it being smoked in those rooms. Apart from refinement and smoking, there was, however, no other likely explanation proffered for the presence of methylamphetamine in those locations.

65. The material before the Court did not include any direct evidence of methylamphetamine being smoked in the garage or kitchen at any time. If Geoffrey’s evidence during his examination is accepted, he never went into the garage except for the occasion when he ran over the step when parking the car. Thus, it is most unlikely that his smoking methylamphetamine in the garage led to be being deposited on the walls, behind the refrigerator and under the air conditioning unit or in the kitchen. Similarly, if Ross’s evidence during his interview is accepted, he did not use drugs at all even socially, had done no more than “try it” and was not a drug user. Consequently, the presence of methylamphetamine on the walls of the garage or kitchen could not be explained by Ross’s smoking methylamphetamine there. No other residents at, or frequent visitors to, the South Penrith property were identified in the evidence.

66. Furthermore, whether or not Geoffrey and Ross’s evidence in their interviews as to their drug use should or should not be accepted, when confronted with the fact that the swabs taken from the garage walls and the circular opening in the kitchen above the hot plates contained methylamphetamine, Ross said he thought the results of the analysis of the swabs was “a mistake or something” and Geoffrey said that he did not believe that methylamphetamine had been found in the swabs.

67. In these circumstances, the evidence as a whole does not raise a sufficiently realistic possibility, let alone a significant degree of probability, that methylamphetamine was smoked in the garage and the kitchen which led to it being detected on the walls in the garage and around the circular opening above the hotplates in the kitchen. Consequently, it is open to find to the requisite standard that the methylamphetamine detected in those locations was the result of methylamphetamine being manufactured by refinement in those rooms of the South Penrith property.

68. A further aspect of the evidence bears on the assessment of the probability of whether methylamphetamine was manufactured at the South Penrith property. While I did not have the benefit of seeing either of Ross or Geoffrey give evidence and all I had was the transcript of their examinations and extracts from the conversations between them obtained by police surveillance, in my view, common sense and experience indicate that the evidence of those conversations was more likely to be reliable than the evidence given during the examinations for the purposes of the CAR Act.

60. On 15 February 2018, when under surveillance, Ross was recorded speaking with Geoffrey and saying to him “you went and cooked the gear, you made it.” Having regard to the evidence as a whole, I infer from this that Ross was saying that Geoffrey had been involved in manufacturing a prohibited drug. Furthermore, on 22 January 2018, Ross had asked Geoffrey why “the step was left open” and Geoffrey replied “it was open when I parked the car. I ran the car over it”. One reason the step would be open at the time of the conversation would be to gain access to the unrefined methylamphetamine stored in the area under the stair or return methylamphetamine to that location after refining. It is difficult to perceive that there would be any other reason for it to be open in the circumstances.

61. Further, Ross also said on 22 January 2018 “If the cops come round here we’ve got real problems. If they come here, we’ll be doing 20”. The next day, 23 January 2018, Ross said to Geoffrey:

“… If you cause a drama at that house, and the coppers come round and lose my mate’s money and gear I will fucking bury you and disown you. …”

71. The statements that if Geoffrey “causes drama” at the house and if the police came around to the house, “we’ve got real problems” and they both would be “doing 20” supports the inference that they were engaged in criminal activity at the South Penrith property which would be obvious if police attended the property and which might attract a sentence of about 20 years’ imprisonment. Once again, it is difficult to perceive that there are any other likely or more likely inferences to be drawn in all the circumstances.

72. In addition, substantial support for the inference that “cook[ing] the gear” referred to manufacturing, or taking steps to manufacture, methylamphetamine by refining it at the South Penrith property is provided by the combination of the following matters:

1. the statements in the conversations that “[i]f the cops come round here we’ve got real problems. If they come here we’ll be doing 20”;

2. the presence of the necessary equipment and chemicals at the South Penrith property for refining methylamphetamine;

3. the presence of both unrefined and refined methylamphetamine under the stairs in the garage;

4. the methylamphetamine detected on the equipment, extractor fans, walls of the garage and the circular opening in the kitchen above the hot plates, at the South Penrith property; and

5. the absence of any evidence to suggest that Geoffrey was involved in the manufacture of prohibited drugs elsewhere or otherwise.

73. Indeed, there did not appear to me to be any other probable or more probable inference available in all the circumstances.

74. When all of these considerations in [63] to [72] are taken together in light of the evidence as a whole, I am satisfied to the requisite standard that methylamphetamine was manufactured by refining at the South Penrith property by the defendants during the period when the chemicals, equipment and unrefined methylamphetamine were at the property in 2017 and 2018.

How the issue of whether the South Penrith property met the description of “serious crime use property” arises

75. As noted above, a central issue in these proceedings was whether the South Penrith property met the description of “serious crime use property” in s 9B(1) of the CAR Act by being “property that was used in, or in connection with, a serious crime related activity”.

76. The issue arises in the following way. The relief relevantly sought by the Commission is in substance:

1. declarations under s 22AA of the CAR Act that Ross’s and Geoffrey’s interests in the net proceeds of sale of the South Penrith property are available for forfeiture as “substituted serious crime use property”, as defined in ss 9B and 22A of the CAR Act; and

2. assets forfeiture orders under s 22 of the CAR Act forfeiting to, and vesting in, the Crown Ross’s and Geoffrey’s interests in the net proceeds of sale of the South Penrith property.

77. Under s 22(2B) of the CAR Act, the Court must make an assets forfeiture order in respect of an interest in property of a person if the Court finds it more probable than not that the interest is an “available interest relating to serious crime use property”.

78. By virtue of s 9B(2) of the CAR Act, an interest in property is an “available interest relating to serious crime use property” if:

“(a) the interest is an interest of a person who has engaged in serious crime related activity (the offender), and

(b) the offender’s activity resulted in the property, or any other property, becoming serious crime use property for the purposes of this Act, and

(c) the property is either the serious crime use property or, if that property is not available for forfeiture as referred to in subsection (3), any other property that is the subject of a substituted serious crime use property declaration.”

79. Under s 6(1) of the CAR Act, “serious crime related activity” refers to:

“anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged—

(a) has been tried, or

(b) has been tried and acquitted, or

(c) has been convicted (even if the conviction has been quashed or set aside).”

80. By virtue of s 6(2) of the CAR Act, “a serious criminal offence” includes any “drug trafficking offence” which in turn includes the following types of offences under the DMT Act:

“…

(c) section 24—offences relating to the manufacture and production of prohibited drugs,

(d) section 24A—offences relating to the possession of precursors for the manufacture or production of prohibited drugs,

(e) section 25—offences relating to the supply of prohibited drugs,

…”.

81. It was not dispute and, on the basis of my findings and the evidence as a whole I accept, that Ross and Geoffrey are persons who have engaged in serious crime related activity and that their interests in the South Penrith property fell within s 9B(2)(a).

82. In order to satisfy the other requirements of s 9B(2)(b) and (c) and for the net proceeds of sale of the South Penrith property to be an “available interest relating to serious crime use property”, the Commission relied on:

1. Ross and Geoffrey’s activities resulting in the South Penrith property becoming “serious crime use property”, thus satisfying s 9B(2)(b); and

2. since the South Penrith property has been sold and is not available for forfeiture as referred to in s 9B(3)(b), “a substituted serious crime use property declaration” being made in respect of the net proceeds of sale of the South Penrith property, thus satisfying s 9B(2)(c).

83. A “substituted serious crime use property declaration” may be made under s 22AA of the CAR Act, which relevantly provides:

“22AA Substituted serious crime use property declaration

(1) The Commission may apply to the Supreme Court for a substituted serious crime use property declaration against a person.

(2) A substituted serious crime use property declaration is a declaration to the effect that an interest in property … of a person who has engaged in serious crime related activity is available for forfeiture instead of serious crime use property that was used in, or in connection with, that activity.

(3) Any such application may be made—

(a) in conjunction with an application for a restraining order or assets forfeiture order, or

…

(c) at any other time.

…

(5) The Supreme Court must make a substituted serious crime use property declaration against a person if the Court finds that it is more probable than not that—

(a) the person has engaged in serious crime related activity, and

(b) the activity has resulted in particular property becoming serious crime use property for the purposes of this Act, and

(c) the serious crime use property is not available for forfeiture as referred to in section 9B (3).

(6) When making a substituted serious crime use property declaration against a person, the Supreme Court is to—

(a) assess the value of the serious crime use property and specify its value in the declaration, and

(b) specify an interest in property (or a combination of interests in properties) of the person that the Court considers to be available for forfeiture instead of the serious crime use property.

(7) The value of the serious crime use property is to be assessed for the purposes of subsection (6) (a) by reference to its value at the time that the serious crime related activity concerned was engaged in.

(8) An interest in property (or combination of interests in properties) specified for the purposes of subsection (6) (b)—

(a) must not have a value (or a total combined value) that is greater than the value of the serious crime use property, and

(b) if it is practicable to do so, must be in relation to property of the same kind as the serious crime use property.

(9) If the Supreme Court makes a substituted serious crime use property declaration, the interest in property (or combination of interests in properties) specified in the declaration as being available for forfeiture instead of serious crime use property is to be treated as an available interest relating to serious crime use property for the purposes of this Act (including in connection with the making of assets forfeiture orders) in relation to the serious crime related activity concerned.”

84. In the circumstances of the present case and by operation of s 22AA and in particular subs (5), a substituted serious crime use property declaration must be made if Ross’s and Geoffrey’s serious crime related activities resulted in the South Penrith property becoming “serious crime use property”.

85. Accordingly, whether the assets forfeiture orders and the substituted serious crime use property declarations should be made both turn, in the particular circumstances of the present case, on whether the South Penrith property was “serious crime use property” as a result of Ross’s and Geoffrey’s activities.

86. The South Penrith property will relevantly be “serious crime use property” if it “was used in, or in connection with, a serious crime related activity” of Ross and Geoffrey: CAR Act, s 9B(1).

Was the South Penrith property “serious crime use property”?

87. Based on my findings set out above, I am satisfied to the requisite standard that Ross’s and Geoffrey’s serious crime related activities included:

1. knowingly taking part in the supply of a large commercial quantity or a commercial quantity, respectively, of a prohibited drug, namely the methylamphetamine hidden under the stairs in the garage of the South Penrith property; and

2. manufacturing by refinement a prohibited drug namely methylamphetamine at the South Penrith property.

88. The question which then arises is whether the storage and hiding of the methylamphetamine at the South Penrith property or the manufacture of the methylamphetamine at that property involved the South Penrith property being:

1. “used in” those activities; or

2. “used … in connection with” them,

on the proper construction of s 9B(1).

Construction of the definition in s 9B(1) of the CAR Act

General principles of construction

89. The general principles of statutory construction have recently been summarised by Gageler CJ, Gordon, Jagot and Beech-Jones JJ in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 (Palmanova). The applicable principles in the case of a New South Wales statute include the following:

1. The construction of a statutory provision begins and ends with the statutory text, understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context: Palmanova at [4].

2. The context is to be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and “context” is to be understood in its widest sense, including such things as the existing state of the law and the mischief which, by legitimate means, it may be discerned the statute was intended to remedy: Palmanova at [5].

3. Use of extrinsic material in the construction of a provision of a New South Wales statute is guided but not governed by the non-exhaustive list of categories of material recognised in s 34 of the Interpretation Act 1987 (NSW) to have potential to illuminate the statutory context: by analogy with Palmanova at [5].

4. Understanding context, including so much of the context as might be revealed by extrinsic material, "has utility if, and in so far as, it assists in fixing the meaning of the statutory text" and focus on the statutory text is not to be to the exclusion of extrinsic material that has the potential to assist in fixing its meaning: Palmanova at [6].

5. A construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object: Interpretation Act, s 33.

90. More specifically, in construing a definition such as that of “serious crime use property” found in s 9B(1) of the CAR Act, the principles to be applied include those stated by Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ in SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; 98 ALJR 1273 at [32] (citing PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 310):

1. the purpose of a definition is to fix or to clarify the meaning of the defined term; and

2. it is of fundamental importance that a definition is construed in the context of the substantive provision to which it applies according to its natural and ordinary meaning unless some other course is clearly required and that limitations and qualifications are not read into a statutory definition unless clearly required by its terms or its context.

Specific provisions of the CAR Act generally relevant to construction

91. In relation to the construction of the CAR Act generally in a case such as the present, s 5(2)(a) of the CAR Act provides:

“(2) Except in relation to an offence under this Act—

(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, …”.

The long title and objects of the CAR Act

92. The relevant context includes the long title of the CAR Act which is:

“An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime related activities; to enable proceeds of serious crime related activities to be recovered as a debt due to the Crown; and for other purposes.”

93. In addition, the “principal objects” of the CAR Act are set out in s 3 as follows:

“(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

(a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion of one or more of the following, unless the person can establish the wealth was lawfully acquired—

(i) the person has engaged in a serious crime related activity,

(ii) the person has acquired proceeds from the serious crime related activity of another person,

(iii) the person’s current or previous wealth significantly exceeds the value of the person’s lawfully acquired wealth, and

(b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and

(b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and

(c) to enable law enforcement authorities effectively to identify and recover property.”

The definition of “serious crime use property”

94. The definition in s 9B(1) of the CAR Act is in the following terms:

“(1) In this Act, a reference to serious crime use property is a reference to property that was used in, or in connection with, a serious crime related activity.”

95. The word “used” is an ordinary English word and its import includes something being employed in order to carry out an activity or achieve a purpose. The immediate context of that word in s 9B(1) is that:

1. what is said to be “used” is property; and

2. the use is required to be connected with an activity that meets the description of “a serious crime related activity” by being used “in” or “in connection with” the relevant activity.

96. On the ordinary and natural meaning of the terms in s 9B(1), property can be said to be “used” in relation to an activity when the whole, or some part or characteristic, of the property is employed in order to carry out that activity. Understood in this way, the definition in s 9B(1) generally requires a connection between the activity and the property that is purposive and not merely fortuitous.

97. The definition in s 9B(1) specifies the required degree of connection between the property and the relevant serious crime related activity in two ways:

1. if the property is used “in” a serious crime related activity; and

2. if the property that is used “in connection with” a serious crime related activity.

98. As to the phrase “in connection with”, it is well established that it is capable of considerable breadth, but it always takes its colour from its surroundings: R v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356 at [28] (Spigelman CJ, with Grove and Sully JJ agreeing); see also Grain Growers Limited v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359 at [121]-[123]. There are a number of relevant conclusions that can be drawn from the surroundings or context in the present case.

99. First, the definition itself contains two, alternate descriptions of the type of connection involved under s 9B(1). On their ordinary English meanings, the description of property as being “used in” an activity refers to a more direct connection between the property and the activity than the type of connection caught by the words “used … in connection with”. Thus, use “in connection with” the activity requires something less then use “in” that activity. This has been accepted in numerous cases where the same words, “used in” and “used in connection with”, appeared in previous criminal assets recovery legislation: Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727; [2000] NSWSC 394 (King) at [14] (O’Keefe J) and the cases there cited.

100. Secondly, the surroundings or context, including the relevant operative provisions, the objects and purpose of the CAR Act and the relevant second reading speech, do not support the conclusion that the word “substantial” or some similar expression should be read into the definition as a limitation or qualification. In particular, the terms and context do not clearly require a limitation and qualification to be read into the statutory definition that there must be a connection between the property and the serious crime related activity which is “substantial” in the sense of large or weighty. ^[2]

     2. As was explained by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382 and accepted by the High Court in Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48 at [27], "substantial" may have various shades of meaning and depending on the context, it may mean "large or weighty" or "real or of substance as distinct from ephemeral or nominal".

101. The operative sections in relation to which the defined term “serious crime use property” is relevant do not indicate or suggest that the Parliament intended any such limitation and qualification to be read into the definition. Section 16A(1)(b1) restricts the Court’s ability to include in a restraining order provision for the payment of legal expenses in respect of an interest in property if it is “an available interest relating to serious crime use property or the interest is the subject of an application for a substituted serious crime use property declaration”. Section 21C(1)(d) permits the Commission to issue a notice of intention to forfeit property if it is suspected of being “an available interest relating to serious crime use property or the interest is the subject of an application for a substituted serious crime use property declaration”. The relevant parts of ss 22 and 22AA have been quoted above. Finally, ss 25(3A) and 26(3A) restrict the ability of the Court to make orders excluding an interest in property from the operation of an assets forfeiture order or a restraining order and the making of an order for the repayment of the value of property not attributable to the proceeds of an illegal activity, under those sections, if the property is “an available interest relating to serious crime use property or the interest is the subject of an application for a substituted serious crime use property declaration”. These provisions do not require any connection between the use of property and the serious crime related activity to be “substantial” in order to be effective.

98. Furthermore, the wider context provided by the long title and the objects of the CAR Act, which have been quoted above at [92] and [93], do not support any limitations and qualifications being read into the definition in s 9B(1). Both the long title and par (a) of the objects refer to the object of the CAR Act being, in effect, to provide for the confiscation of interests in property that are interests of a person engaged in serious crime related activities.

99. In addition, under s 5(2)(a) of the CAR Act, the rules that are applicable to the construction of criminal legislation do not apply to the construction of that Act.

100. At the broadest level, the purposes of the CAR Act include deterring serious crime related activity by seeking to ensure that any property used in or in connection with such activity is confiscated from those who have engaged in that activity. As Crennan J explained in Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [95]:

“With the widening of the application of the [CAR] Act to serious crime related activity and serious crime derived property, the illicitly obtained assets and profits with which the legislation is concerned are no longer confined to assets and profits obtained illicitly from the drug trade. … It cannot be doubted that deterring serious crime related activity is a matter of legitimate public interest and an important public object, and that it is within the legislative competence of the Parliament of New South Wales to deter such activity by confiscating its fruits.” (footnote omitted)

105. This broad purpose does not support construing the definition in s 9B(1) as including a limitation or qualification that any use of the property “in connection with” a relevant activity must be “substantial”.

106. Similarly, the second reading speech in relation to the bill by which s 9B(1) and related sections were introduced does not support reading into the definition any limitation or qualification. The second reading speech for the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 in the Legislative Assembly on 22 March 2016 included the following in relation to “serious crime use property” and the new provisions which made use of that term as defined (now in s 9B(1) of the CAR Act):

“The purpose of these bills [including the Criminal Legislation Amendment (Organised Crime And Public Safety) Bill 2016] is to deliver on the Government’s election commitment to introduce tough new powers to give police the upper hand in the fight against serious crime. …

…

Schedule 3 amends the Criminal Assets Recovery Act 1990 to enhance the Crime Commission’s assets confiscation powers and provide a stronger deterrent to committing serious crime. Organised criminals who use intermediaries to distance themselves from their crimes would be key targets of this legislation. Clauses 1 to 3 of schedule 3 insert new definitions into the Criminal Assets Recovery Act that are consequential to the amendments. For example, "serious crime use property" is taken to mean property that was used in or in connection with a serious crime-related activity. Schedule 3, clause 8 enables the Supreme Court to make a substituted serious crime use property declaration in respect of property of a person who engaged in serious crime-related activity if the property is unavailable for forfeiture. This means that where a criminal uses property owned by another person in the commission of a serious offence the bill will allow the court to make a ‘substitution order’.

A substitution declaration can be made over property that is worth the same or less than the property used to commit the crime and, if practicable, property of the same kind as the property used to commit the crime. The bill clarifies that half of the value of goods confiscated from criminals as crime used property under the Criminal Assets Recovery Act will be paid into the Victims Support Fund. …”.

107. If anything, the second reading speech indicated an intention to enhance or strengthen powers of confiscation under the CAR Act with a view to deterring serious crime. This would not be consistent with reading into the definition in s 9B(1) a limitation or qualification that use of property in connection with serious crime related activity must be “substantial” in the absence of such a word from the definition and of any clear indication that the context required such a limitation.

108. Thirdly, while the terms and the context of the definition in s 9B(1) do not clearly require a limitation or qualification to be read into the statutory definition so that any use of the property in connection with the serious crime related activity must be “substantial”, it does not follow that the surroundings or context do not assist in determining the ambit or intended scope of operation of the words “in connection with” in that definition. The expression “in connection with” indicates that there must be some form of connection between two things but it does not establish the nature or degree of connection required. The required nature and degree of connection has to be determined by reference to the text of the expression and the context in which it is used.

109. In my view, the most pertinent context in relation to the definition in s 9B(1) is that an “available interest relating to serious crime use property” (which is based on satisfaction of that definition) must be forfeited to the Crown under s 22(2B) if the Court is satisfied on the balance of the probabilities that the property meets that description directly or as a result of a substituted serious crime use property declaration. Accordingly, the expression “used in, or in connection with, a serious crime related activity” in the definition in s 9B(1) effectively sets the standard which attracts the operation of s 22(2B) of the CAR Act. In these circumstances, the nature and degree of connection required by the phrase “in connection with” should be that which would make mandatory forfeiture of a relevant interest appropriate and justified, having regard to the scope and purpose of the CAR Act. There is, of course, a certain circularity in this attempt at exposition of the nature and degree of the connection required. The application of the expression “used … in connection with” will be a matter of fact and degree in any given case and context. Nonetheless, it can be said, for example, that a trivial or merely fortuitous connection between property and serious crime related activity will be unlikely to satisfy the requirement that the property be used in connection with that activity because such a connection would not have been intended by Parliament to be sufficient to give rise to the mandatory forfeiture of the relevant interest in the property in such circumstances.

Some pertinent authorities

110. It is appropriate at this point to consider whether any authorities require a different construction from that set out above. There do not appear to be any appellate authorities dealing specifically with the proper construction of s 9B(1) of the CAR Act. There is one first instance judgment which considers this issue: New South Wales Crime Commission v Pettit [2021] NSWSC 980; 292 A Crim R 89 (Pettit). In Pettit, Ierace J helpfully reviewed the legislative history of the CAR Act and referred to the terms of predecessor legislation in New South Wales. His Honour has also reviewed authorities from New South Wales concerning that predecessor legislation and authorities from other States relating to legislation with a similar subject matter which have considered the expression “used … in connection with”.

111. In Pettit, Ierace J observed, at [39]:

“A common thread in some cases in relation to the interpretation of the phrase ‘used … in connection with’ is a divergence into two views that could be characterised as the ‘literal’ or ‘ordinary grammatical’ view and the ‘substantial use’ view. The literal view is often adopted on the basis that the relevant legislative scheme allows the court a wide discretion in order to avoid what might be regarded as an injustice, such as the scale of the forfeiture being disproportionate to the offence.”

112. Under the predecessor legislation, the Confiscation of Proceeds of Crime Act 1989 (NSW), there was a discretion in s 18(1) to order the forfeiture of “tainted property” taking into consideration the property’s ordinary use and any hardship that may reasonably be likely to arise: Pettit at [43]. “Tainted property” was defined in s 4(1) of that Act as meaning:

“property that—

(a) was used in, or in connection with, the commission of a serious offence, or

(b) was substantially derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or

(c) was substantially derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or

(d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender’s thoughts, opinions or emotions regarding the offence, in any public promotion.”

113. The provisions of the earlier Crimes (Confiscation of Profits) Act 1985 (NSW) (the 1985 Act) established a similar regime for discretionary orders for forfeiture of property that was used in, or in connection with, the commission of a serious offence or was derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence.

114. In respect of the 1985 Act, the Court of Criminal Appeal considered the construction of the words “used … in connection with” in R v Hadad (1989) 16 NSWLR 476 (Hadad). In that case, McInerny J, with whom Enderby and Allen JJ agreed, framed the consideration of construction in terms of whether the words “used … in connection with” should be given their “ordinary grammatical meaning” or whether a requirement for a “substantial” connection should be inferred, in the light of a Queensland decision, R v Ward, Marles and Graham [1989] 1 Qd R 194; (1987) 33 A Crim R 60 (Ward), concerning a similarly worded provision. In Hadad, it was held, at 482:

“… Having regard to the ambit of the legislation and the discretion reposed in the Court on the question of whether or not an order should be made, the intention of the legislature is that a wide scope be given to the concept of tainted property. I do not accept that the legislature intended the courts to construe the section by requiring a substantial connection between the commission of the crime and the alleged tainted property.”

115. As explained by Ierace J in Pettit at [48] to [68], various judges and courts have adopted either the “ordinary grammatical meaning” approach or a “substantial connection” approach to construing the words “used in connection with” found in legislation which is similar to, but different in various respects from, the CAR Act. In particular, his Honour noted the reasoning of Hunt CJ at CL in Director of Public Prosecutions (Cth) v Jeffery (1992) 58 A Crim R 310 (Jeffrey) in relation to the construction of the words “used … in connection with” in s 48(4) of the Proceeds of Crime Act 1987 (Cth). Section 48(4) of the Commonwealth Act did not permit hardship to be taken into account in determining whether relief should be granted to have property disregarded for the purposes of automatic forfeiture under s 30 of that Act. Hunt CJ at CL continued:

“It was argued by the Director that, because a person convicted of any offence may seek pursuant to s 48(3) to have his interest excluded from any restraining order upon his property, and because in relation to that particular application his financial hardship may be taken into account, the approach adopted in Hadad should similarly be adopted in relation to s 48(4).

I am not persuaded that the relevance of hardship to an application that property be excluded from a restraining order, but which hardship is irrelevant to an application for a declaration that that property should be disregarded for the purposes of the automatic forfeiture of that property, should require such an approach to be adopted to the proper interpretation of the statutory provisions relating to the latter. The property with which s 48(4) deals includes property in which innocent parties may well also have an interest — even a significant interest. Accordingly, in my view, the distinction made in Hadad does not apply to the meaning of the phrase as used in s 48(4).”

116. The Chief Judge at Common Law adopted the approach to construction of the phrase “used … in connection with” adopted in Ward and concluded that:

“Use in connection with any unlawful activity within the meaning of s 48(4) therefore requires a substantial connection between the activity in question and the use of the property; it is not sufficient for there to be a mere accidental or incidental connection. The unlawful activity must be related to, or dependent upon, or could not have been committed without, or have resulted directly from, the use of the property.”

117. Another authority to which Ierace J drew attention was the judgment of the Full Court of the Supreme Court of South Australia in Director of Public Prosecutions (SA) v George (2008) 102 SASR 246; [2008] SASC 330 (George), which was dealt with at some length in Pettit at [54] to [63]. In George, the structure and provisions of the relevant South Australian legislation were materially different from that of the CAR Act. Nonetheless, the question of whether property was an “instrument” of an offence turned, at least in part, on whether it was “used in, or in connection with, the commission of an offence”, under s 7(1)(b) of the South Australian legislation: George at [7]. Doyle CJ reasoned as follows in relation to the construction of that aspect of the definition of “instrument”:

“58. However, in considering the meaning of the statutory expression, it is relevant to bear in mind that the composite expression that has been used is one that has often been said to have a wide reach.

59. Moreover, the purpose of the CAC Act and the nature of its provisions suggest that the definition of “instrument” was intended to have a wide rather than a narrow reach. On the other hand, as Mr Wells submits, a conclusion that property is an instrument of an offence has serious adverse consequences for the owner. That is a matter to be borne in mind in determining the application of the statutory expression in the present context: see Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414 at [105]-[113].

60. It is also relevant that a finding that property is an instrument of an offence may mean that a [pecuniary penalty order] can be made in respect of the property without the Court exercising any judgment or discretion, without having regard to considerations of proportionality, or without any reference to matters such as the public interest. It may be appropriate to give the words used in s 7(1)(b) a wide meaning when that meaning catches property that will be forfeited only if the Court considers it appropriate to do so, applying statutory criteria that give the Court power to refrain from making [a forfeiture order]. That was the case in Taylor v The Attorney-General (above). However, it remains necessary to consider the words actually used, and to bear in mind that, at least on their face, they are capable of having a wide application.

…

62. There is one thing which I consider to be clear. It is that there is no basis for qualifying the statutory definition by requiring that any connection be a “substantial connection”. To take that approach is to introduce an expression which the draftsman has not used. In that respect I agree with Millhouse J and with Debelle J in Taylor v The Attorney-General at 466 and at 472 respectively, and with the majority of the Court of Criminal Appeal of Western Australia in The Queen v Rintel (1990) 3 WAR 527 at 530-531 Malcolm CJ and at 542 Pidgeon J.

63. I also approach the issue of interpretation on the basis that the statutory definition should not be read as referring to or requiring a causal link between the property and the offence. Something less than that may suffice. Nor is it necessary that the property be something that is essential or necessary for the commission of the offence, or something that makes a unique contribution to the commission of the offence. Nor is it appropriate, when the instrument is land, to assign to the land a single or dominant use. There is no reason why land cannot be used in, or in connection with, the commission of an offence when it is also used for other purposes, and when on the objective circumstances it would be described as being used in another manner. Thus, the use of Mr George’s land might be described as residential, but it could nevertheless fall within the statutory definition of ‘instrument’.

64. It should also be noted that the definition of ‘instrument’ applies to real and personal property, to tangibles and to intangibles. The property in question might be a place where an offence is committed, a thing in which an offence is committed (a motor vehicle), or a thing used in the course of committing an offence.

65. Bearing these matters in mind, what is the link, or kind of link, between property and the commission of an offence that Parliament has identified by its definition of ‘instrument’? As a matter of ordinary language, and bearing in mind that the word defined is ‘instrument’, I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially when the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. I doubt whether one can usefully go any further than that.”

118. In George, although Vanstone J considered the construction of the words “used … in connection with” in the definition of “instrument”, her Honour did not apparently find that matter necessary for her decision. At [167] and [168], her Honour said:

“167. … Having regard to the fact that the Act is penal in its operation and that consequences out of all proportion to the gravity of the crime could flow from a wide interpretation of the word “instrument”, for this and other serious offences (as defined), I would be prepared, if necessary, to find that a substantial connection is required between the property and the commission of the crime under consideration before it is found to be an instrument of that crime. I would require that the property was put to use in a positive sense; that it was a means through which the crime was effected; that the property was used as a tool in the commission of the crime, or in connection with its commission. I would be content to approach the matter in much the same way as did Hunt CJ in Jeffery, remembering always that the expression being construed there was ‘tainted property’ rather than ‘instrument’. Such an interpretation would largely conform with the aims of the CAC Act as expressed in the legislation itself and as outlined by the Attorney-General in the second reading speech referred to earlier. Absent any curial discretion in s 95, a more wide-ranging interpretation of instrument would result in manifest injustice in imposing a penalty bearing no relationship to the crime committed, not just in the present case, but also in cases of the nature described in the earlier part of these reasons. I do not consider that Parliament could have intended such a result.

168. Upon this approach, what would amount to a sufficient connection in any particular case would depend upon the circumstances of that matter.”

119. As it transpired, Vanstone J said at [170] that she would accept White J’s conclusion that s 95 of the relevant South Australian Act conferred a discretion on the Court whether to make a pecuniary penalty order and that such an approach allowed:

“for an expansive interpretation of the term “instrument” to be, in effect, ameliorated or balanced, where appropriate, by an exercise of the Court’s discretion, including under s 95. That remedy to the otherwise harsh results identified herein is preferable to narrowing the interpretation of instrument. I gratefully concur in the reasons of White J on the interpretation of s 95.”

120. After reviewing further authorities and the submissions of the parties, Ierace J concluded in Pettit as follows, at [86]-[87]:

“86. I apply the reasoning of the Court of Criminal Appeal in Hadad and of Hunt CJ at CL in Director of Public Prosecutions (Cth) v Jeffery and, in so doing, I conclude that, in the absence of a judicial discretion to avoid an assets forfeiture order that would be disproportionate to the offence, a narrow interpretation of the phrase in s 9B(1) of the CAR Act is appropriate. The phrase “used … in connection with” obliges the Court to be satisfied that there is a substantial connection between the property that is the subject of the assets forfeiture order and the offence.

87. I note that my conclusion coincides with the reasons expressed in Director of Public Prosecutions (SA) v George, Doyle CJ and Vanstone J both being of the view that whether there was a discretion in making final orders was a relevant consideration in the construction of the phrase. In the absence of such a discretion, Vanstone J preferred a narrow construction, that a “substantial” connection was required.”

121. The defendants’ primary submission on the issue of the construction of the definition in s 9B(1) of the CAR Act was that Pettit should be followed and “[t]he phrase ‘used … in connection with’ obliges the Court to be satisfied that there is a substantial connection between the property … and the offence”.

122. If Ierace J intended by the conclusion at [86] of Pettit to state that the definition in s 9B(1) should be read as if the word “substantial” was interpolated so that the definition only included “property that was used in, or substantially in connection with, a serious crime related activity”, I would not agree with his Honour for all of the reasons I have set out earlier. I do not, however, understand that this is what his Honour intended. In Pettit at [87], Ierace J stated that his conclusion coincided with the reasoning of Doyle CJ in George. As noted above, Doyle CJ’s reasoning included at [62]:

“There is one thing which I consider to be clear. It is that there is no basis for qualifying the statutory definition by requiring that any connection be a “substantial connection”. To take that approach is to introduce an expression which the draftsman has not used.”

123. In my view, it is not helpful to frame the question of construction of s 9B(1) in terms of an “ordinary grammatical meaning” approach or a “substantial connection” approach. The better view is to treat the statement in Pettit and the other decisions which refer to a requirement that any connection was required to be “substantial” as, in effect, attempting to indicate that the words “used … in connection with” take their meaning as to the nature and degree of the required connection from their statutory context. Where that context includes a mandatory forfeiture order of a relevant interest if the definition is satisfied, the degree and nature of the connection required are to be such that it would be appropriate and justified for such a connection to attract potential judicial intervention by way of a mandatory forfeiture order, in all the circumstances having regard to the scope and purpose of the CAR Act. ^[3] The potential range of circumstances that might fall to be considered in any particular case is virtually without limit. Some illustrative examples of different types of circumstances that may arise were discussed by O’Keefe J in King.

     3. It can be noted that “substantial” in a statutory context such as a “substantial lessening of competition” has been held to have a similar function of setting “a standard for judicial intervention” in respect of anti competitive conduct being an effect on competition which is substantial in the sense of meaningful or relevant to the competitive process, despite there being a degree of circularity involved in such a functional use of the word: Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38; (2000) ATPR ¶41–752.

124. In short, I do not accept that the authorities referred to or the reasoning in those cases require a different construction from that which I have set out above.

Application of the definition in s 9B(1) in relation to the South Penrith property

125. Whether the South Penrith property was serious crime use property depends on it being “used in, or in connection with” Ross and Geoffrey’s “serious crime related activity”. In the present case and supported by my findings above, that serious crime related activity included:

1. supply of 1.3 kg of methylamphetamine, contrary to s 25(2) of the DMT Act; and

2. manufacture of methylamphetamine by refinement, contrary to s 24(2) of the DMT.

126. The question then is whether the South Penrith property was “used in” or “used … in connection with” those activities.

127. As to supply of methylamphetamine, this activity involved the defendants’ storing over 1.3 kg of the drug under the stairs in the garage at the South Penrtih property for the purpose of eventual resupply. By doing so, they were “keeping or having in possession for supply” and thus supplying the methylamphetamine stored in that location. ^[4]

     4. See the definition of “supply” in s 3(1) of the DMT Act.

128. The drugs were not in the area under the stairs merely fortuitously or for no particular reason. They were there because that area in the garage of the South Penrtih property was a hiding place in which the presence of the drugs in the house could be concealed. This was evident from the nature of the location, the fact that the area under the stairs could only be accessed by dislodging one of the steps and Ross’s concern during the conversation on 22 January 2018 as to why “the step was left open”. It was also evident from the conversation on 23 January 2018 in which Ross indicated that he was concerned that if Geoffrey did something at the house and police attended his mate’s “gear” might be lost.

129. The relevant activity therefore involved employing part of the South Penrith property which, because of its configuration, size and location, allowed items to be hidden in it. Furthermore, this was done with a view not only to storing the drugs but also, at the same time, preventing, or reducing the risk of, their being detected at the South Penrith property by police or others who might attend the property. In other words, part of the South Penrith property was employed in this way in order to carry out and conceal from detection the very activity which amounted to supplying the drugs, as defined in the DMT Act. The connection between the activity of storing and concealing prohibited drugs and the South Penrith property was direct and deliberate. In all the circumstances, I am satisfied to the requisite standard that the South Penrith property was “used in” Ross’s and Geoffrey’s serious crime related activity of supplying more than the large commercial and the commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act.

130. In case I am wrong in this conclusion, I note that it remains the fact that storage of the drugs under the stairs involved deliberately concealing them in a hidden but accessible location provided in the South Penrith property with a view to being able to carry out the activity in question undetected. In those circumstances and in light of all of the other relevant findings set out above, I am also satisfied to the requisite standard that, even taking into account the serious consequences which flow from such a finding, the South Penrith property was sufficiently related to the storage of the drugs for resupply that it can properly be said to have been “used in … connection with” Ross’s and Geoffrey’s serious crime related activity contrary to s 25(2) of the DMT Act.

131. As to the manufacture of methylamphetamine by refinement which I have found was carried out at the South Penrith property, in my view, the equipment and chemicals of the type found at the property would have been “used in” the very processes involved in the serious crime related activity of manufacturing methylamphetamine. In addition, water and electricity available at the South Penrith property would have been “used in” that activity. The South Penrith property itself, however, was not employed in the processes of refinement themselves so as to meet the description of being “used in” the relevant activity. Thus, it is necessary to address the question whether the South Penrith property was “used … in connection with” the refinement of methylamphetamine.

132. Refinement, as I have found, occurred at the South Penrith property and, being a house, it provided a measure of concealment from outside observation of what was being undertaken inside. This was important to Ross and Geoffrey because, if police attended and saw what was being done at the property, they thought they would go to gaol for 20 years. Further, equipment and chemicals used in the refinement process were stored at the property together with unrefined and refined methylamphetamine. The South Penrith property also provided access to electricity and water consumed in carrying out the processes involved in refinement as well as providing air conditioning and probably an extractor fan to assist in disposing of fumes from the process. Various parts and characteristics of the property were employed because they were necessary or suitable for carrying out, or facilitated carrying out, refinement of methylamphetamine. The South Penrtih property was much more than simply a chance location where refinement happened to occur unconnected with any particular part of, or facility provided by, the property.

133. Accordingly, having regard to the evidence as a whole and my relevant findings, I am satisfied to the requisite standard that the South Penrith property was so related to the refinement of methylamphetamine there that it is proper to characterise the property as being “used … in connection with” the defendants’ activity of manufacturing methylamphetamine contrary to s 24(2) of the DMT Act, even taking into account the consequences which might flow from that conclusion under the CAR Act.

Conclusions in relation to the prayers for relief

134. As result of my conclusions that the South Penrith property was used in or in connection with Ross’s and Geoffrey’s serious crime related activity, it follows that the South Penrith property was “serious crime use property” by virtue of s 9B(1) of the CAR Act.

135. Ross and Geoffrey each engaged in serious crime related activity and each had an interest as a registered proprietor and tenant in common of the South Penrith property and, consequently, the requirements in s 9B(2)(a) have been met. Their activities resulted in the South Penrith property becoming serious crime use property on the bases explained above and thus s 9B(2)(b) has been satisfied. Since the property has been sold, it is not available for forfeiture under the CAR Act by virtue of s 9B(3)(b). In those circumstances, it becomes relevant whether a substituted serious crime use property declaration is to be made under s 22AA.

Should substituted serious crime use property declarations be made?

136. A “substituted serious crime use property declaration” is a declaration to the effect that an interest in property of a person who has engaged in serious crime related activity is available for forfeiture instead of serious crime use property that was used in, or in connection with, that activity: s 22AA(2) of the CAR Act.

137. Under s22AA(5), a substituted serious crime use property declaration must be made by the Court if it is found on the balance of probabilities that:

“(a) the person has engaged in serious crime related activity, and

(b) the activity has resulted in particular property becoming serious crime use property for the purposes of this Act, and

(c) the serious crime use property is not available for forfeiture as referred to in section 9B (3).”

138. For the reasons already given in respect of s 9B, those three requirements in s 22AA(5) have also been met in both defendants’ cases. Accordingly, the Court is required to make substituted serious crime use property declarations in the present case.

139. Under s 22AA(6) and (7), when making substituted serious crime use property declarations against Ross and Geoffrey, the Court is required to:

1. assess and specify the value of their interests in the South Penrith property, being the serious crime use property in question, at the time that the serious crime related activity concerned was engaged in, and

2. specify Ross’s and Geoffrey’s interests in property that the Court considers to be available for forfeiture instead of the South Penrith property.

140. The evidence of the retrospective value of the South Penrith property, which I accept, established that as at 11 October 2018, the date of the defendants’ offending, the South Penrith property was valued at $665,000. Consequently, the value of each of Ross’s and Geoffrey’s half interest in that property was $332,500 at the relevant time.

141. In the present case, the Commission submitted that the Court should specify each defendant’s half interest in the net proceeds of sale of the South Penrith property currently held by NSW Trustee and Guardian as their interests in property available for forfeiture. It was not practicable to specify an interest in property of the same kind as the South Penrith property, as required by s 22AA(8)(b), and specification of interests in the net proceeds of sale of that property was clearly appropriate and, in substance, complied with the underlying intention of that paragraph.

142. Section 22AA(8)(a) provides, in effect, that the interests in property specified in those substituted serious crime use property declarations must not exceed in total the value of their interests in the South Penrith property. The total value of net proceeds of sale of the South Penrith property was, as at 12 March 2025, $303,891.36 and I am satisfied that its value at the date of the orders to be made in this matter will not have increased to such an extent that s 22AA(8)(a) would not be satisfied.

143. For these reasons, I propose to make substituted serious crime use property declarations as follows:

1. A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest in property of Ross Andrew Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

2. A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest in property of Geoffrey John Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

Should forfeiture orders be made?

144. Under s 22AA(9) when such declarations are made, the interests in property specified in the order become available as interests relating to serious crime use property for the purposes of the CAR Act, including in connection with the making of assets forfeiture orders in relation to the serious crime related activity concerned.

145. Section 22(2B) provides that the Court must make an assets forfeiture order in respect of an interest in property if the Court finds it more probable than not that the interest is an available interest relating to serious crime use property.

146. I have explained above why the requirements in s 9B(2)(a) and (b) have been met in the present case and why the South Penrith property is not available for forfeiture, as referred to in s 9B(2)(c). In addition, I am satisfied that the interests of the defendants in the net proceeds of sale of the South Penrith property will be, at the time any forfeiture order is made, the subject of substituted serious crime use property declarations and, accordingly, at that time the requirements of s 9B(2)(b) will be met. Consequently, the interests of the defendants in the net proceeds of sale of the South Penrith property will be “an available interest relating to serious crime use property”.

147. In these circumstances, after making the substituted serious crime use property declarations, I propose to make the forfeiture orders sought in respect of each of the defendants’ interests in the net proceeds of sale of the South Penrith property.

Should other orders be made?

148. In addition to the substituted serious crime use property declarations and the forfeiture orders, in the amended summons the Commission sought:

1. an “order pursuant to s 101 of the Civil Procedure Act 2005 for interest”;

2. an order for costs; and

3. orders for forfeiture of the defendants’ interests in the South Penrith property.

149. As to the prayer seeking an order for interest, in the present case the orders to be made do not include any orders for the payment of money by the defendants to the plaintiff. It is difficult to perceive how the substituted serious crime use property declarations and the forfeiture orders could attract interest. In the circumstances, an order for the payment of interest does not appear to me to be appropriate. Further and in any event, s 101(1) and (3) have the effect that if interest would be payable given the nature of the Court’s orders, it would be payable in accordance with those subsections unless the Court orders otherwise and no order under s 101 would therefore be necessary. No order for interest will be made.

150. As to costs, the defendants did not raise any factors in submissions which would be sufficient to support an order for costs other than that they follow the event, and I am not otherwise aware of any such factors. Accordingly, I propose to make an order for costs in favour of the Commission.

151. The prayers for relief by way of forfeiture of the interests in the South Penrith property have been overtaken by events and are no longer relevant. It will be appropriate to order, therefore, that the amended summons be otherwise dismissed.

Orders

152. Accordingly, the Court makes:

1. A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest of Ross Andrew Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

2. A declaration pursuant to s 22AA of the Criminal Assets Recovery Act 1990 (NSW) that the interest of Geoffrey John Hitchen in the net proceeds of sale of the property described as lot 259 in deposited plan 239299 (the South Penrith property) being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)” is available for forfeiture instead of his interest in the South Penrith property, the value of which at the time of his relevant serious crime related activity is specified as being $332,500.

1. An order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) forfeiting to, and vesting in, the Crown the interest of Ross Andrew Hitchen in the net proceeds of sale of the South Penrith property being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)”.

2. An order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) forfeiting to, and vesting in, the Crown the interest of Geoffrey John Hitchen in the net proceeds of sale of the South Penrith property being half of the balance in the NSW Trustee and Guardian account “Ross Andrew Hitchen and Geoffrey John Hitchen (191462-1)”.

3. An order that the defendants pay the plaintiff’s costs.

4. An order that, otherwise, the amended summons filed on 9 December 2020 be dismissed.

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Endnotes

Amendments

29 October 2025 - Typographical error corrected.

Decision last updated: 29 October 2025