NEW SOUTH WALES CRIME COMMISSION v. KELLY [2001] NSWSC 247

New South Wales Supreme Court

CITATION : NEW SOUTH WALES CRIME COMMISSION v. KELLY [2001] NSWSC 247 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC No. 11044 of 1998 HEARING DATE(S) : Wednesday 4 April 2001 JUDGMENT DATE : 4 April 2001

PARTIES : NEW SOUTH WALES CRIME COMMISSION v. KELLY, Lawrence Raymond & ORS JUDGMENT OF : Greg James J at 1

COUNSEL : Plaintiff: I. Temby, QC. Defendants: In person SOLICITORS : Plaintiff: New South Wales Crime Commission Defendants: In person CATCHWORDS : Application for forfeiture on the basis of serious crime related activity of restrained property - circumstantial case - no defence evidence. LEGISLATION CITED : Criminal Assets Recovery Act 1990 CASES CITED : Chiron (1980) 1 NSWLR 218 DECISION : I make the orders sought by the plaintiff.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. 11044 of 1998

GREG JAMES, J.

WEDNESDAY 4 APRIL 2001

NEW SOUTH WALES CRIME COMMISSION v. LAWRENCE RAYMOND KELLY & ORS

JUDGMENT (On application for forfeiture order)

1 HIS HONOUR: Application is made under ss.22 and 27 of the Criminal Assets Recovery Act 1990 by the New South Wales Crime Commission for orders set out in the second amended summons filed herein. Those orders in particular seek the forfeiture of and vesting in the Crown of all interests in property of Lawrence Raymond Kelly, Glenda Jane Rangi and Lillian Rangi, the defendants, which assets are subject to restraining orders in force under s.10 of the Criminal Assets Recovery Act 1990. 2 Application was made, when the matter came into the list before me on Monday in the duty judge list, by the defendants for an adjournment. I refused that application on the basis it was made and published my reasons. Subsequently, today, another application was made and it was again refused. When I say what occurred on Monday was that I refused an adjournment application, in fact, the matter stood adjourned until today, a much longer period having been sought, but that adjournment was for the limited purpose of affording an opportunity to put on evidence. I will not repeat in this judgment the matters that minded me to refuse the last adjournment that was sought. Subsequently, I proceeded to the hearing of the Crime Commission's application. 3 It is to be noted that the defendants have sought to withdraw pleas of guilty entered by them in the District Court to charges of supplying an indictable quantity of amphetamines. Those pleas have not been withdrawn, and nor has the Court yet heard an application to withdraw the pleas. At present they stand as admissions of the most solemn kind, of all matters of fact and law, necessary to support convictions on the charges against them: see Regina v. Chiron (1980) 1 NSWLR 218. 4 Nonetheless, because there is an application to withdraw the pleas, even though as I will show, proceedings under the Criminal Assets Recovery Act 1990 are not conviction based, and because there is in support of that application, statements which have been tendered to me from a man who one might regard as the instrument or purchaser of drugs in what might be referred to as sting operations, recanting from his initial accounts of the defendants' drug dealing, I will accord to those pleas less significance and weight than I would otherwise, to the extent that, for the purposes of this decision, and having regard to the fact that the defendants became unrepresented when I declined the adjournment, notwithstanding the powerful submissions of Mr. Temby, QC. for the Crime Commission to the contrary, I will disregard the pleas. 5 Further, I will disregard the recantation statements of the person Parker as affecting the evidence contained in his affidavit, accepting insofar as it goes to show that both in his recantation and in chief, he is personally a person who I consider to be of no credit whatsoever, so that I would reject the evidence that he gave, unless it is confirmed or supported otherwise. 6 In this case, however, having had regard to the other evidence on its own, and considering this as though it were a circumstantial evidence case, as opposed to a case relying on the direct evidence of Parker, the proof not only exceeds all that is necessary in law to prove the assertions of the Crime Commission as to the defendants having engaged in the process of drug supply during the month preceding 3 April 1998, but also having engaged in actual transactions involving indictable quantities on 3 April and 6 April of that year. 7 So it is when one examines the evidence of the police officers, whose evidence was unchallenged and who it was not sought be called for cross-examination, one finds established the purchases by Parker, whether his evidence is given any significance on that question or not. 8 The following evidence establishes the transactions on which the plaintiff relies. The police officers observed Parker in his journeys to and from the premises of the defendant, Kelly. On at least one occasion they watched and observed small envelopes containing white powder being passed by the defendants to Parker. Parker then produced those envelopes to the police officers. A clear chain of possession shows that what was contained in those envelopes by way of white powder was an indictable quantity of the drug. 9 The defendants have not given evidence before me. They have filed affidavits denying any dealing in the drugs. When they were represented on the adjournment application, I was informed that those affidavits would not be read and that the defendants would not give evidence personally. After terminating their lawyer's retainer, they have defended the proceedings brought by the Crime Commission. In address, Ms. Rangi, on behalf of herself and her husband, Mr. Kelly, has denied dealing in, or ever selling any drug by either of them. None of the defendants was willing to give evidence, however. 10 I can give no weight to that denial because it is not in evidence and so many opportunities have been given to those defendants during the progress of the adjournment applications and on two prior occasions to put on evidence of their denials, and to submit themselves to cross-examination. 11 The evidence of the police officers included, in particular, the evidence of Detective Warren Perry, who establishes the provision of the "buy money" to the informant. He and other police give evidence of the journey to Gins Leap on 3 April 1998. His affidavit similarly establishes the provision to Parker of $1,000 of "buy money", a brown pharmacy paper bag and five boxes of Sudafed tablets on 6 April 1998. That material was later located. His evidence establishes on that latter date, of being provided by the undercover operative, who had accompanied Parker, with 14 single sachet bags containing amphetamines. 12 Similarly, on 3 April, he had been provided with fourteen single sachet bags, each containing a quantity of amphetamines by the undercover police. Again provision was made on 8 April and, thereafter, a search was conducted of the premises and the defendants arrested. Detective Simon Ross had received from the undercover supervisor on 3 April $1,000 in Australian currency. He and the informant drove to Boggabri where he handed the money to the informant. 13 Thereafter, he drove the vehicle to Gins Leap. There he saw the defendant Kelly sitting in the driver's seat and Glenda Jane Rangi sitting in the passenger seat. He saw the informant get out of the vehicle and walk to the driver's side door of the Subaru. There he saw Kelly hand the informant a number of small plastic bags containing white powder, which the informant brought back to the vehicle he was in. He watched Kelly's vehicle drive away with Kelly driving, and Rangi alongside him. He received the 14 small resealable plastic bags containing white powder from the informant. He passed that material to the undercover supervisor. 14 His statement of 6 April 1998 refers to a similar event having occurred on the afternoon of 5 April 1998. It is apparent on a comparison with the other evidence in the matter that there has been some error in the statement confusing the 5th for the 6th. Again he was handed fourteen small plastic re-sealable bags containing white powder. This was at a time in which what had transpired between himself and Mr. Kelly was recorded pursuant to a listening device warrant. At this point I note that the occasions upon which Parker dealt with Mr. Kelly were recorded by reason of a listening device warrant. 15 It will not be necessary in this judgment to deal with all the conversations, but I will turn to one shortly. Again, there is evidence from the same deponent of similar activities on 8 April, and I have mentioned this date previously. That was when there, apparently, was an attempt to obtain further evidence by way of purchase which aborted following a phone call that it appears Parker made to a person who might have communicated with a relative of Mr. Kelly. 16 Garth Lachlan Coe, a police officer, gave evidence of the provision of the monies used on 3 April and confirmed the observations of the accused Kelly and the accused Rangi in the vehicle in the vicinity of Gins Leap. He it was who, using gloves, removed the small plastic resealable plastic bags from the undercover supervisor, and transmitted them to the drug security bag. 17 He gave evidence of the activities on 6 April as to the provision of the monies and to the observations of Kelly and Rangi - of the same green coloured Subaru as was driven by Kelly and Rangi on the afternoon of 3 April and a green Mitsubishi Star Wagon, which he had observed an associate of theirs to walk towards earlier that day. He gave evidence of the obtaining of 14 re-sealable plastic bags by him from the undercover supervisor and the transmission of those bags to the exhibit bag. In each case, when money was provided, the serial numbers and details of the money were recorded. 18 Again on 8 April, he gave what is essentially a similar account and refers to the entry to the premises of Kelly and Rangi. Paul Augustus Donkin gave evidence of the analysis of the white powder transmitted to him, in accordance with that chain to which I have earlier referred. That chain is deposed to by Duane David MacPherson, a police officer. 19 Louis Edward Haslam gave evidence of the surveillance on 3 April of Kelly and Rangi's premises and watching the informant go into those premises and listening to the conversation between the informant and the defendant as transmitted, and verifying the transcript of that conversation. He photographed the various operatives and the vehicles. He saw the cream coloured Subaru leave the premises. He saw that it was Kelly who was driving and that Glenda Rangi was in the passenger seat. He took custody of the tapes and saw the 14 small re-sealable plastic bags. 20 He was given on 6 April, the Sudafed tablets, the chemist's bag, and inside that bag in poly-like detectable material, hecate, and he photographed these items. He observed what occurred at the defendants' premises at 11 Brent Street, Boggabri and he made notes and took photographs. He was privy to the conversation that took place that afternoon between the police informant and the defendant and verified the tapes. Again on 8 April he conducted a similar operation, verifying the matters to which I have already referred and to which evidence was given by the other police. 21 I have said I would turn to one of the conversations on the tapes. That conversation was transcribed and the transcription appears as annexure B to the affidavit of Detective Haslam. In that transcription there is evidence that what was said included the defendant saying to the informant that the old local coppers were hot and the informant told him that the informant wanted $1,000, to which he replied, "Oh Jesus". He then said, "What are you doing, who are you with, your mother? A. No, I am with my mate". 22 The defendant then said, "Well do you want to meet me here out of town, 'cause this copper ... I'll get your gear so you don't get pulled up alright." An appointment was made to meet at Gins Leap. The defendant offered to provide 15 "so that will save you getting caught". 23 He said:- "They have been pulling up every cunt and searching them. Just in case he might pull you up, if I see you pulled up I will keep going ... I will be a bit further you know." 24 Subsequently, he said:- "Just watch it, he is likely to pull you up, he just pulled that bloke up. That is why I said 'I will carry your gear out too'. That will save you getting pulled up." 25 He told the informant that it was the same stuff as last time and that it was good. He continued:- "Right mate, I will see you in 15. ... Don't panic if I am a bit late, I will just be dodging this copper, that is all bro." 26 Whatever else one might make of that conversation, about meeting at Gins Leap, the suggestion that the transaction was a lawful transaction in prawns, is exposed for being absolute nonsense. 27 The affidavits of Michael Charles Luland establish the making of the restraining orders and the property that is the subject of those orders. There has been no evidence which might have in any way displaced the proof and the weight of proof of the matters to which I am required to have regard under the Criminal Assets Recovery Act 1990. 28 I am required by s.22(2) to make an assets forfeiture order if:- "The court finds it more probable than not ... (a) a serious crime related activity involving an indictable quantity." 29 It is not necessary for that finding to be based upon a particular offence, or as to any particular quantity. 30 Similarly, I must make a proceeds assessment order under s.27 if I find the same matter and it is not necessary again that there be a finding as to the commission of a particular offence, or as to a particular quantity. The Act requires that in each case I have regard to specified property. 31 In the case of Lawrence Raymond Kelly, I have regard to the property in the schedule to the affidavit of Michael Charles Luland, that is to say items one and two therein. Similarly, to the material referred to in the schedule to the second affidavit of Michael Charles Luland as to the Holden utility registered in the name of Glenda Jane Rangi. In the case of Lillian Rangi, the property specified is that contained in the eight items in the schedule to the affidavit of Michael Charles Luland of 10 November 2000. 32 I therefore conclude that I should in each case make the orders sought and would direct that an appropriate form of order setting out the specified property and formal orders be produced to me. (Mr Temby stated that he produced that to the court and he provided a copy to the defendants.)