Shields & Ors v New South Wales Crime Commission (No 2)

[2007] NSWCA 310

New South Wales

Court of Appeal

CITATION:	Shields & Ors v New South Wales Crime Commission (No 2) [2007] NSWCA 310
HEARING DATE(S):	2 April 2007
JUDGMENT DATE:	2 November 2007
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 12; Tobias JA at 13
DECISION:	1. Leave to appeal granted; 2. Appeal allowed; 3. Set aside the orders made by Rothman J on 19 June 2006; 4. Dismiss the Notice of Motion for summary judgment; 5. Order that the respondent Commission pay the claimants’/appellants’ costs of the Summons for Leave to Appeal, the appeal and the costs of the hearing of the application for summary judgment.
CATCHWORDS:	CRIMINAL LAW – assets forfeiture order – requirement that it was more probable than not that a person engaged in serious crime related activity within six years of application for order – whether precondition for assets forfeiture order satisfied - CRIMINAL LAW – assets forfeiture order – restraining order – whether interest in property sufficiently specified - PRACTICE AND PROCEDURE – adjournment – proceedings sought to be adjourned pending application for leave to appeal – whether trial judge’s discretion erred in refusing adjournment
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 (NSW) s 22
PARTIES:	Gail Anne Shields (First Appellant) Aaron Gregory Lye (Second Appellant) Christopher Lye (Third Appellant) Koala Development Pty Ltd (Fourth Appellant) Parkes Airport Business Centre Pty Ltd (Fifth Appellant) Parkes Airport Construction Pty Ltd (Sixth Appellant) New South Wales Crime Commission (Respondent)
FILE NUMBER(S):	CA 40435/06
COUNSEL:	C J Dibb (Appellants) I Temby QC; P Singleton (Respondent)
SOLICITORS:	Darryl Barlow & Co (Appellants) New South Wales Crime Commission (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 10278/06
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	19 June 2006

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CA 40435/06

BEAZLEY JA
HODGSON JA
TOBIAS JA

2 November 2007

Gail Anne Shields & Ors v New South Wales Crime Commission (No 2)

Judgment

1 BEAZLEY JA: The first to sixth claimants seek leave to appeal against an order for summary judgment made by Rothman J on 19 June 2006 on an application by the New South Wales Crime Commission (the Commission) for assets forfeiture orders in respect of property of the first to sixth claimants, which were subject to restraining orders made by Sully J on 19 January 2006. The claimants in these proceedings were the second to seventh defendants in the proceedings below from which leave to appeal is sought with the first defendant being a Victor Warren Ollis (Ollis). The Summons for Leave to Appeal and the appeal have been heard concurrently.

2 The claimants are the same claimants as in CA 40270/06.

Commission’s Notice of Motion for summary judgment

3 The Commission’s Notice of Motion for summary judgment sought orders that judgment be given for the Commission on its claim for assets forfeiture orders in respect of the interests of each of the claimants specified in the schedules to the Notice of Motion.

The statutory scheme

4 The assets forfeiture orders made by Rothman J were made pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) (the Act). That section provides, relevantly:

“22 Making of assets forfeiture order

(1) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect.

(1A) An application may be made under subsection (1) before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted.

(2) The Supreme Court must make an assets forfeiture order if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture 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) A finding of the Court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:

(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or
(b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity.


…

(4) When an assets forfeiture order is made it must be made so as to apply to specified interests in property.

…

(6) The raising of a doubt as to whether a person engaged in a serious crime related activity or whether a quantity is an indictable quantity is not of itself sufficient to avoid a finding by the Supreme Court under subsection (2).

…

(7) The quashing or setting aside of a conviction for a serious crime related activity or illegal activity does not affect the validity of an assets forfeiture order that was made before or after the conviction was quashed or set aside and was based on the activity.

(8) The making of an assets forfeiture order does not prevent the making of a proceeds assessment order under Division 2 which assesses the value of the proceeds of, or is based on, the serious crime related activity or illegal activity on which the assets forfeiture order was based.

(9) Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application.

(10) The absence of a person entitled to be given notice of an application for an assets forfeiture order does not prevent the Court from making the order.”

Should the assets forfeiture orders be set aside?

5 The claimants submitted that the precondition for the making of an assets forfeiture order under s 22(2) of the Act, that the Court must find it more probable than not that the person whose suspected serious crime related activity which formed the basis of the restraining order was engaged in a serious crime related activity at some time during the six years preceding the making of the application for the assets forfeiture order, was not met.

6 The claimants argued that his Honour was in error in concluding that the Commission was entitled to summary judgment on this point relating to the serious crime related activity of Ollis. The claimants’ submissions in support of this proposition are those relied upon by Ollis in CA 40404/06. The claimants state that if Ollis’ appeal is successful, one of the preconditions for making the assets forfeiture orders was absent and therefore the orders should be set aside. The Commission likewise relied upon its arguments in respect of Ollis’ appeal. As Ollis’ appeal has succeeded, it follows that this ground of appeal must succeed.

7 The claimants next submitted that the precondition that the interests in property subject to the assets forfeiture order be subject to a restraining order when the assets forfeiture order takes effect: s 22(1) had not been met. The submission was based on the submissions made in CA 40270/06. The claimants state that if successful in those proceedings, the restraining orders should be set aside and, therefore, one of the preconditions for the making of assets forfeiture orders was absent, resulting in the orders of Rothman J also being set aside. Those orders have not been set aside and, accordingly, this ground may be immediately put to one side.

8 The claimants further submitted that his Honour erred in refusing to adjourn the Commission’s Notice of Motion for summary judgment pending the outcome of the application for leave to appeal and appeal in CA 40270/06. The claimants argued at the hearing of the Notice of Motion that his Honour should not hear the matter on two discretionary grounds. One of those grounds was that the matter should be stayed, as there was on foot an application for leave to appeal against the restraining orders themselves. The claimants state that by rejecting the claimants’ argument and giving summary judgment, his Honour’s discretion miscarried. Having regard to my conclusion that the restraining orders were properly made, this submission is no longer relevant.

9 It emerged in the argument on the appeal that there was also an issue in respect of this application as to whether his Honour erred in making assets forfeiture orders in respect of property described in general terms in schedules 15, 16, 17, 20, 21 and 22, and which were replicated in the schedules to the Notice of Motion.

10 For the reasons which I have given at [100]ff, and in particular at [115]-[124] in CA 40270/06, I am of the opinion that his Honour was, in any event, in error in making assets forfeiture orders in respect of that property.

11 Accordingly, I propose the following orders:

1. Leave to appeal granted;

2. Appeal allowed;

3. Set aside the orders made by Rothman J on 19 June 2006;

4. Dismiss the Notice of Motion for summary judgment;

5. Order that the respondent Commission pay the claimants’/appellants’ costs of the Summons for Leave to Appeal, the appeal and the costs of the hearing of the application for summary judgment.

12 HODGSON JA: I agree with Beazley JA.

13 TOBIAS JA: I agree with Beazley JA.

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