NSW Crime Commission v Young - [2024] NSWSC 1255

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: NSW Crime Commission v Young [2024] NSWSC 1255
Hearing dates: 31 July 2024
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
1. Notice of Motion filed 26.7.24 be, and hereby is, dismissed.
2. Order the applicants (Mr Young and Ms Waugh) to pay the costs of NSW Crime Commission of the Notice of Motion filed 26.7.24.
3. Direct that examination listed for today and tomorrow are to continue.

Catchwords:
CRIME – Confiscations – Restraining order – Unexplained wealth order – Order for examination under oath – Motion brought by the defendant seeking a permanent stay of the proceedings – Motion dismissed.

Legislation Cited:
Criminal Assets Recovery Act 1990

Cases Cited:
Not Applicable

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: NSW Crime Commission (P)
Shaun Young (D)
Representation:
Counsel:
Ms Barros Goncalves (P)
Self Represented (D)
Solicitors:
Confiscations, NSW Crime Commission (P)

File Number(s): 23/246377
Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

These proceedings were commenced by the NSW Crime Commission, (“the Commission”) on 2 August 2023 against Mr Sean Anthony Young as the defendant. The proceedings commenced by Summons on that day sought a series of orders pursuant to the Criminal Assets Recovery Act 1990 (“the Act”).
By way of final relief, the Summons sought an order which can be referred to in shorthand as an “Unexplained Wealth Order pursuant to s 28A of the Act”. That order sought that the defendant, Mr Young, pay to the Treasurer an amount to be assessed by the Court. As well, the Summons sought an interlocutory order pursuant to s 10A of the Act, which had the effect of precluding any person disposing of or attempting to dispose of or otherwise dealing with any interest in property of Mr Young within the statutory definition contained in s 7 of the Act, including any interest in the property specified in the schedule to the Summons.
That property was described as amounting to cash totalling a little over $1.65 million, casino chips in an amount of approximately $178,000, and funds held in a nominated casino account in an amount of about $200,000.
That restraining order was made on 21 September 2023, and remains in place.
The Summons also sought that each of Mr Young (the defendant), Ms Keisha Waugh and Mr Leo Lewin be examined on oath pursuant to ss 12.1(b)(i) and (ii) of the Act.
On 21 September 2023, Campbell J dealt with the interlocutory orders sought in the Summons. He made restraining orders under s 10A of the Act because he was satisfied that there were reasonable grounds for the requisite suspicion that the defendant, Mr Young, had engaged in a serious crime‑related activity within the meaning of the Act. He also made an order for the examination upon oath of Mr Young.
The day before that hearing, Mr Young filed an application by way of Notice of Motion supported by an…

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.

Continue reading NSW Crime Commission v Young

Details

AGLC: NSW Crime Commission v Young [2024] NSWSC 1255
Case: [2024] NSWSC 1255
Decision Date: 31 July 2024

CaseChat Overview and Summary

The case before the court involved the New South Wales Crime Commission and a defendant identified as Young. The dispute centred on the Commission's application for various orders under the Proceeds of Crime Act 2002 (NSW), including a confiscation order, a restraining order, an unexplained wealth order, and an order for examination under oath. Young brought a motion seeking a permanent stay of the proceedings, arguing that the Commission's application was an abuse of process and that the orders sought were punitive in nature.

The court was tasked with determining whether Young's motion for a permanent stay should be granted. This involved assessing whether the Commission's application was an abuse of process, and if the orders sought were punitive and therefore beyond the scope of the Act. The court had to balance the principles of procedural fairness and the legislative intent behind the Proceeds of Crime Act.

In dismissing the motion, the court found that the Commission's application did not constitute an abuse of process. It determined that the orders sought were not punitive but were designed to prevent the proceeds of crime from being enjoyed by the defendant and to ensure compliance with the Act. The court held that the Commission's application was within the scope of the Act and did not represent an improper use of its powers. The motion for a permanent stay was therefore dismissed.

The court's decision clarified that the orders sought by the Commission were not punitive and did not constitute an abuse of process. The proceedings could continue, and the Commission was entitled to pursue its application for various orders under the Proceeds of Crime Act.

Orders