NEW SOUTH WALES CRIME COMMISSION v KELLY & ORS; KELLY & ORS v NEW SOUTH WALES CRIME COMMISSION [2003] NSWCA 245

Reported Decision : 58 NSWLR 71

New South Wales Court of Appeal

CITATION : NEW SOUTH WALES CRIME COMMISSION v KELLY & ORS; KELLY & ORS v NEW SOUTH WALES CRIME COMMISSION [2003] NSWCA 245 HEARING DATE(S) : 19 August 2003 JUDGMENT DATE : 9 September 2003

JUDGMENT OF : Sheller JA at 1; Santow JA at 71; Tobias JA at 72 DECISION : CA 40108/03; 1 Crime Commission's application for leave to appeal allowed; 2 Appeal dismissed with costs; 3 Defendants' application for leave to cross-appeal dismissed; CA 40285/03; 1 Extend the time for the defendants to apply for leave to appeal up to and including the date of the filing of the application; 2 Defendants' application for leave to appeal dismissed with costs; CA 40284/03; 1 Defendants' application for leave to appeal dismissed with costs; 2 Crime Commission's application for leave to cross-appeal allowed on ground 1 only, namely that his Honour erred in calculating the value of the proceeds derived from the illegal activities; 3 On that ground and to that extent appeal allowed; 4 Amend order 2 by substituting "for the amount of $96,000 the amount of $107,782"; 5 No order as to costs.

CATCHWORDS : Criminal law - Confiscation of criminal proceeds - Recovery - Hardship - Assessment of assets subject to confiscation order - Interpretation of statute - Criminal Assets Recovery Act 1990 ss24, 25, 26 - Meaning of "will" - Assets forfeiture order - Accused acquitted at trial - Felony-Tort Rule - Quantum of order - Method of calculation - Error in calculation. Crimes (Confiscation of Profits) Act 1985 Criminal Assets Recovery Act 1990 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Interpretation Act 1987 Poisons Act 1966 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Gallow v Dawson (1990) 64 ALJR 458 Grey v Pearson (1857) 6 HCL 61; 10 ER 1216 CASES CITED : Griffin v Sogelease Australia Ltd [2002] NSWCA 421 Hector Steamship Company v VO Sovfracht, Moscow [1945] 1 KB 343 McMahon v Gould (1982) 6 ACLR 202 R v Fagher (1989) 16 NSWLR 67 New South Wales Crime Commission PARTIES : Lawrence Raymond Kelly Glenda Jane Rangi Lillian Rangi FILE NUMBER(S) : CA 40108/03; 40284/03; 40285/03 COUNSEL : P Singleton - NSW Crime Commission In person SOLICITORS : J M Glorgiutti - NSW Crime Commission In person