Commonwealth Director of Public Prosecutions v Ly [2007] NSWSC 805

New South Wales Supreme Court

CITATION : Commonwealth Director of Public Prosecutions v Ly [2007] NSWSC 805

HEARING DATE(S) : 19-20 July and 16 August 2007

JUDGMENT DATE : 21 August 2007

JUDGMENT OF : Harrison J

DECISION : (1) Declare that Julio Madrid is the joint owner of AUD$36,120 and US$30,000 ("the property") seized by the Australian Federal Police on 7 December 2004 and forfeited to the Commonwealth on 9 March 2006 ("Julio Madrid's interest"). (2) Declare that Julio Madrid's interest in the property is AUD$36,120 and US$30,000. (3) Direct the Commonwealth to transfer Julio Madrid's interest in the property to Julio Madrid. (4) With respect to the notice of motion dated 15 July 2005 I order the Applicant to pay the Respondent's costs thrown away or occasioned by reason of the vacation of the hearing date on 9 March 2006 but that in all other respects the Respondent should pay 75 per cent of the Applicant's costs of that motion. (5) I order the Respondent to pay the Applicant's costs of the notice of motion dated 5 April 2006. (6) I grant a stay of my orders for a period of 28 days from today.

CATCHWORDS : PROCEEDS OF CRIME – application under s 104 Proceeds of Crime Act 2002 by lawful owner of property seized by Australian Federal Police and forfeited to Commonwealth – applicant not involved in commission of offence to which forfeiture related – applicant's interest in the property not the proceeds of the offence – EVIDENCE - application pursuant to s 108A Evidence Act 1995 as to admissibility of evidence of credibility of person who has made a previous representation - CIVIL PROCEDURE – joinder of party to proceedings pursuant to rules 6.24 and 6.25 Uniform Civil Procedure Rules 2005

Civil Procedure Act 2005 - s56(1) Evidence Act 1995 - s 108A LEGISLATION CITED : Financial Transaction Reports Act 1988 - s 15(1) Proceeds of Crime Act 2002 - ss 17, 39, 92, 102, 104, 180, 338, Uniform Civil Procedure Rules 2005 - rules 6.24, 6.25