NSW Crime Commission v Ollis - [2006] NSWSC 316

Reported Decision:
161 A Crim R 121

New South Wales

Supreme Court

CITATION: NSW Crime Commission v Ollis [2006] NSWSC 316

HEARING DATE(S): 13/3/2006, 16/3/2006

JUDGMENT DATE :
21 April 2006

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION: Paragraphs [46]-[48] (Orders Made under s27 of the Criminal Assets Recovery Act 1990 (NSW)).

CATCHWORDS: CRIMINAL ASSETS RECOVERY - Immunity of witness to criminal charges - Immunity not to run to proceedings for recovery - Principles of construction - Perjury and Perverting Course of Justice - Fraud - Immunity from charge not affect existence of serious crime related criminal activity

LEGISLATION CITED: Criminal Assets Recovery Act 1990 (NSW)
Crimes Act 1900 (NSW)

CASES CITED: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
Cabassi v Vila (1940) 64 CLR 130
D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12
R v Rogerson (1992) 174 CLR 268
Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
R v Wallis (1949) 78 CLR 529
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 78 ALJR 1231; [2004] HCA 40

PARTIES: NSW Crime Commission (P)
Victor Warren Ollis (D1)
Gail Anne Shields (D2)
Aaron Gregory Lye (D3)
Christopher Lye (D4)
Koala Development Pty Ltd ACN 116 719 754 (D5)
Parkes Airport Business Centre Pty Ltd ACN 116 261 913 (6)
Parkes Airport Construction Pty Ltd ACN 117 091 737 (D7)

FILE NUMBER(S): SC 10278/2006

COUNSEL: Mr I Temby QC (P)
Mr Dibb (D)

SOLICITORS: Mr J Giorgiutti (P - Sol to the Cmr)
Mr H Karimjee (D2-D7)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE ROTHMAN

21 April 2006

NSW CRIME COMMISSION v Victor Warren OLLIS
10278/2006

JUDGMENT

1 HIS HONOUR: This is an application by the New South Wales Crime Commission (the Commission) for an order that the first defendant, Victor Ollis, be subject to a proceeds assessment pursuant to the terms of s.27(1) of the Criminal Assets Recovery Act 1990. The function of the Court on such an application is not to assess the proceeds derived from an illegal activity, but simply to order that such a process occur.

2 The provisions of s.27(2) of the Criminal Assets Recover Act 1990 (the Act) make clear that the Court is required to make a Proceeds Assessment Order if certain conditions precedent are met. The terms of subsection 27(2) of the Act are:

“(2) The Supreme Court must make a Proceeds Assessment Order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in:

(a) a serious crime related activity involving an indictable quantity, or

(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.”

3 Relevantly the six year period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 316
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the case of NSW Crime Commission v Ollis, the dispute involved the Commission's application for the confiscation of assets from Ollis, a convicted criminal. The Court of Appeal considered the implications of Ollis' immunity from criminal charges on the Commission's ability to recover assets linked to criminal activity. The Court had to determine whether Ollis' immunity from prosecution for certain criminal charges barred the Commission from recovering his assets under the Criminal Property Confiscation Act 1997 (NSW).

The primary legal issues focused on the interpretation of the Act and whether Ollis' immunity from criminal charges extended to proceedings for the recovery of assets. The court examined whether the statutory language allowed for a distinction between immunity from criminal charges and the ability to recover assets linked to criminal activity. The court considered whether the principles of statutory construction supported a separation between Ollis' immunity from charges and the Commission's rights under the Act.

The Court of Appeal concluded that Ollis' immunity from criminal charges did not preclude the Commission from recovering his assets related to serious criminal activity. The court held that the language of the Act permitted the recovery of assets even where the individual was immune from prosecution for the underlying criminal acts. The court emphasised the importance of distinguishing between immunity from prosecution and the recovery of assets, finding that the statutory framework did not extend immunity to asset recovery proceedings. The Court's reasoning was grounded in the principle that immunity from criminal charges does not negate the existence of serious criminal activity or the state's right to recover assets derived from such activity. As a result, the appeal was dismissed, and the confiscation order against Ollis was upheld.

Orders