Ollis v New South Wales Crime Commission

The New South Wales Court of Appeal considered an appeal by Mr Ollis against a summary judgment entered against him in favour of the New South Wales Crime Commission. The Commission had sought a proceeds assessment order under the *Criminal Assets Recovery Act 1990* (NSW), relying on Mr Ollis's alleged conduct, including perjury, which the Commission contended constituted perverting the course of justice. Mr Ollis argued that he was entitled to witness immunity and that there was a real question to be tried, making summary judgment inappropriate.

The primary legal issues before the Court of Appeal were whether the trial judge erred in entering summary judgment when there was a real question to be tried, and whether Mr Ollis was entitled to the benefit of witness immunity in relation to the proceedings under the *Criminal Assets Recovery Act*. The Court also considered whether the Commission could rely on the offence of perverting the course of justice for the purposes of the Act, and whether Mr Ollis's conduct, specifically perjury, could satisfy the elements of that offence.

A majority of the Court, comprising Beazley JA and Tobias JA, held that the trial judge had erred in entering summary judgment. They reasoned that the judge had improperly made an adverse credit finding and drawn a *Jones v Dunkel* inference from Mr Ollis's failure to call his solicitor, which was inconsistent with the principles governing summary disposal of proceedings. The majority found that the Commission had not established that there was no real issue to be tried. Regarding witness immunity, the majority concluded that while immunity generally applies to statements made in judicial proceedings, the *Criminal Assets Recovery Act* provides a statutory exception. They found that the Act operates on conduct constituting serious criminal offences and is not concerned with the personal liability of the individual, thus Mr Ollis was not entitled to immunity. The majority also held that the offence of perverting the course of justice could encompass perjury committed with the intent to pervert the course of justice, and that Mr Ollis's evidence raised a question as to whether he possessed the requisite intent, further supporting the view that summary judgment was inappropriate. Hodgson JA, in dissent, argued that witness immunity should apply because the proceedings under the Act, while not strictly civil or criminal, could result in serious adverse consequences, and the legislature had not expressly displaced the immunity.

The appeal was allowed, the summary judgment orders were set aside, and the Commission's notice of motion for summary judgment was dismissed. Mr Ollis was awarded his costs of the summons for leave to appeal, the appeal, and the costs at first instance.