NSW Crime Commission v Mahoney [2003] NSWSC 1030

Reported Decision : 142 A Crim R 409

New South Wales Supreme Court

CITATION : NSW Crime Commission v Mahoney [2003] NSWSC 1030 HEARING DATE(S) : 11-14 August 2003 JUDGMENT DATE : 25 September 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : PROCEEDS ASSESSMENT MADE; PARTIAL RELIEF FROM FORFEITURE

CATCHWORDS : CRIMINAL ASSETS RECOVERY - PROCEEDS ASSESSMENT - CLAIMS FOR RELIEF FROM FORFEITURE - ONUS - EVIDENCE LEGISLATION CITED : Criminal Assets Recovery Act 1990 Australian Consumer & Competition Commission v Amcor Printing & Papers Group Ltd 2000 169 CLR 344 CASES CITED : Briginshaw v Briginshaw 1938 60 CLR 336 DPP v Jeffrey 1992 58 A Crim R 310 NSW Crime Commission v Crotty [1999] NSWSC 146 PARTIES : In the matter of the property of Robert Bradley Mahoney, Applicant, and in the matter of the Crimal Assets Recovery Act, the New South Wales Crime Commission, Respondent FILE NUMBER(S) : SC 11437/00 COUNSEL : I. Temby QC with R. Bromwich (Plaintiff/Respondent) R. Lovas (Defendant/Applicant) SOLICITORS : J. Giorgiutti (Plaintiff) Curtis Gant Irving (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 25 September 2003

11437/00 - IN THE MATTER OF THE PROPERTY OF ROBERT BRADLEY MAHONEY, APPLICANT and IN THE MATTER OF THE CRIMINAL ASSETS RECOVERY ACT, THE NEW SOUTH WALES CRIME COMMISSION, RESPONDENT

JUDGMENT 1 HIS HONOUR: Before the Court are proceedings under the Criminal Assets Recovery Act 1990. Otherwise unreferenced sections pertain to that Act. On 2 June 2000 Robert Bradley Mahoney (the applicant) was arrested and charged with offences including offences referrable to a quantity of 476.7 grams of methylamphetamine. On 8 June 2000 the New South Wales Crime Commission (the Commission) obtained from this Court a restraining order pursuant to s10 in respect of the property of the applicant. On that date the Commission sought an assets forfeiture order pursuant to s22 and a proceeds assessment order pursuant to s27. 2 On 9 April 2001 an assets forfeiture order was made in respect of property scheduled as follows: " PART ONE The whole of the property comprising of Lot 110 in the Deposited Plan 755260 at Browns Road, Blackhill, New South Wales, registered in the names of Sandra Dawn Maree Beldham and Robert Bradley Mahoney, as joint tenants. PART TWO 1. The whole of the property comprising Lot 8 of Section E in the Deposited Plan 16054, also known as 27 Elizabeth Street, Cardiff South, New South Wales, registered in the names of Robert Bradley Mahoney and Sandra Dawn Maree Beldham, as joint tenants. 2. Funds held in bank account number 732-512-53-4210 being account in the name of Robert Bradley Mahoney at the Cardiff branch of Westpac Banking Corporation. 3. Funds held in bank account number 958 768 being investment account in the name of Robert Bradley Mahoney at Newcastle Permanent Building Society Limited. 4. Funds held in bank account number 016.65.82171/5 being investment account in the name of Mr R. Mahoney at Greater Building Society Limited. 5. Cash in the sum of $14,505 located by members of the New South Wales Police Service on the front passenger seat of motor vehicle registration TES-884 and handed to Police by Robert Bradley Mahoney on 18 November 1999 following a random breath test at the intersection of Pacific Highway and Redleaf Avenue, Warrawee, New South Wales. 6. Cash in the sum of $2,450 located by members of the New South Wales Police Service in the wallet of Robert Bradley Mahoney on 21 January 2000 following a search of his person. 7. 1991 Chevrolet Corvette US coupe registration number RAW-068 registered in the name of Robert Mahoney. 8. 1991 Harley Davidson model FXDB motorcycle registration number XDJ62 registered in the name of Robert Mahoney. PART THREE Cash in the sum of $4,800 located by members of the New South Wales Police in the execution of a search warrant at 27 Elizabeth Street, Cardiff South on 20 July 2000." 3 The reasons for the divisions in the schedule are stated in the orders and need not be repeated. I will refer to the firstmentioned realty as "the Blackhill property" or "Blackhill", the second as "the Cardiff property" and the other items in accordance with their respective descriptions. 4 On 25 October 2002 the Public Trustee, in whose name a new Certificate of Title had been issued in respect of Blackhill was, by further order of this Court, restrained on an interlocutory basis from selling that property. 5 On 7 March 2003 the applicant was convicted of supplying more than a commercial quantity of the prohibited drug methylamphetamine.