NSW Crime Commission v Ivanov & Ors

The NSW Crime Commission sought an order for the exclusion of approximately $1.8 million in cash, seized from various properties of the respondents, under section 25 of the Criminal Assets Recovery Act 2006 (NSW). The primary dispute centred on whether the cash represented proceeds of crime and whether it could be established that none of it was derived from unlawful activities. The case was heard in the Supreme Court of New South Wales.

The legal issues for the court to resolve included whether the onus was on the Crime Commission to prove that the cash was derived from illegal activities, and if so, whether the commission had provided sufficient evidence to meet this burden. The court also had to determine whether the respondents could effectively challenge the presumption of the proceeds of crime and provide evidence to counter the commission's assertions.

The court found that the onus of proof rested with the Crime Commission to establish that the cash was derived from unlawful activities. It held that the commission had not provided sufficient evidence to meet this burden, and thus the presumption of innocence in favour of the respondents stood. The respondents were successful in presenting evidence that some of the cash was legitimately earned, and the court was satisfied that there was no conclusive evidence linking all of the seized cash to illegal activities. Consequently, the application for exclusion was dismissed.

The court ordered that the seized cash be returned to the respondents, except for a small portion that the court found to be reasonably suspected of being proceeds of crime. The decision underscored the importance of the onus of proof in proceedings involving the exclusion of assets under the Criminal Assets Recovery Act.