New South Wales Crime Commission v Volkard Kelaita

The New South Wales Crime Commission (the appellant) appealed to the Court of Appeal of New South Wales against an order made by the Supreme Court of New South Wales concerning the recovery of assets from Mr Volkard Kelaita (the respondent). The dispute centred on whether a prior forfeiture order affected the amount recoverable under a proceeds assessment order made pursuant to the *Criminal Assets Recovery Act 1990* (NSW).

The primary legal issue before the Court of Appeal was the proper interpretation of sections 22, 27, and 28 of the *Criminal Assets Recovery Act 1990* (NSW). Specifically, the court had to determine whether the "value" of property, as referred to in section 27(1), should be reduced by the amount of property that had already been forfeited under a separate forfeiture order. This involved considering the statutory scheme for the recovery of proceeds of criminal activity and the interaction between different recovery mechanisms provided by the Act.

The Court of Appeal reasoned that the *Criminal Assets Recovery Act 1990* provided distinct mechanisms for the recovery of the value of unlawfully acquired property. It held that a forfeiture order under section 22 and a proceeds assessment order under section 27 were separate and cumulative remedies. The court concluded that the Act did not intend for the value assessed under section 27 to be reduced by amounts already recovered through forfeiture. The interpretation of "value" in section 27(1) was not intended to be diminished by prior forfeiture, as this would undermine the purpose of the Act to recover the full proceeds of criminal activity.

The appeal was allowed. The Court of Appeal set aside the previous order of the Supreme Court and ordered that the respondent pay the Treasurer the sum of $401,356, representing the full amount assessed. The respondent was also ordered to pay the appellant's costs.