Director of Public Prosecutions (NSW) v Zhang [2023] NSWDC 302

District Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Zhang [2023] NSWDC 302 Hearing dates: 4 August 2023 Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Civil Before: J Smith SC DCJ Decision: See [32] Catchwords: CIVIL – proceeds of crime – forfeiture order – tainted property CIVIL – proceeds of crime – drug proceeds order – pecuniary penalty order – whether benefit derived by the defendant in connection with drug trafficking – assessment of benefit – whether defendant had effective control over property Legislation Cited: Confiscation of Proceeds of Crimes Act 1989 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Cases Cited: Cheung v R [2001] HCA 67; 209 CLR 1 R v Fagher (1989) 16 NSWLR 67 R v Hall [2013] NSWCCA 47 The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 Texts Cited: None Category: Principal judgment Parties: Director of Public Prosecution (NSW) (Applicant) Y Zhang (Defendant) Representation: Counsel: B Walker (Defendant)

Solicitors: A Poulos (Applicant) File Number(s): 2017/00357484 Publication restriction: None

Judgment 1. The defendant, Mr Zhang, was tried on indictment and convicted of one offence of supply prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 2. On 28 March 2023, the Director of Public Prosecutions (NSW) filed a Summons seeking two orders under the Confiscation of Proceeds of Crimes Act 1989 (NSW) ('Act'): first, an order pursuant to section 18(1) of the Act that cash in the approximate sum of $10,000 found at Campsie on 25 November 2017, be forfeited to the State; and second, pursuant to section 29(1) of the Act, the defendant pay, to the State of New South Wales, a drug proceeds order in the sum of $150,000. 3. In the course of submissions at the hearing, Mr Poulos, who appeared for the Director, asked that, if order one be refused, the amount sought in order two be amended to $160,000. The basis and reason for that request will shortly become apparent. However, the application was withdrawn subsequent to the hearing in light of the operation of section 15 of the Act and it is unnecessary to consider it any further.