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

The New South Wales Court of Appeal considered appeals and cross-appeals concerning the confiscation of criminal proceeds under the *Criminal Assets Recovery Act 1990* (NSW). The dispute involved the New South Wales Crime Commission seeking to recover assets derived from illegal activities, and the defendants challenging the assessment and quantum of the confiscation orders.

The primary legal issues before the Court of Appeal were the interpretation of provisions within the *Criminal Assets Recovery Act 1990*, specifically concerning the assessment of assets subject to confiscation orders, the meaning of "will" in relation to the disposition of assets, and the application of the Felony-Tort Rule. The Court also had to determine whether there had been an error in the calculation of the quantum of the confiscation order.

The Court of Appeal analysed the statutory framework for asset recovery, focusing on the principles governing the assessment of the value of criminal proceeds and the consideration of hardship. It was determined that the Crime Commission had erred in its calculation of the value of the proceeds derived from the illegal activities. Consequently, the Court allowed the Crime Commission's appeal on this specific ground, amending the original confiscation order to reflect a corrected amount. The defendants' applications for leave to appeal and cross-appeal were otherwise dismissed.