New South Wales Crime Commission v Subakti

The New South Wales Crime Commission sought an exclusion order pursuant to section 25 of the Criminal Assets Recovery Act 1990, targeting two properties and other assets that had already been subject to a forfeiture order under section 22. The underlying issue was whether the properties and assets were derived from criminal activities. The source of the applicant's living expenses and loan repayments for the properties in question was their business. There was evidence suggesting that the business involved the sale of anabolic steroids and cocaine, both illegal substances. However, the absence of primary source records or expert analysis made it difficult to ascertain the income and expenses from lawful versus criminal activities.

The primary legal issue was whether the Commission had met its burden of proof to establish that the assets were indeed the proceeds of crime. The court had to determine if the evidence was sufficient to conclude that the applicant's business activities were the source of the income used to finance the properties and other assets. Given the lack of primary source records or expert analysis, the court found that the onus of proof had not been discharged by the Commission. Additionally, the Commission also sought a proceeds assessment order under section 27. The defendant had been sentenced for drug supply offences and the Commission argued that drug proceeds had been used to acquire the properties and make mortgage payments. However, the defendant failed to provide evidence of lawful income to offset these expenditures. The court found that the evidence was sufficient to establish the basis for an order under section 27(2).

The court ruled against the Commission on both the exclusion and proceeds assessment orders. It found that the Commission had not met its burden of proof for the exclusion order, and the defendant's failure to provide evidence of lawful income meant the proceeds assessment order could not be made. The court's decision hinged on the lack of sufficient evidence to establish the criminality of the assets and the income derived from the defendant's business activities.