New South Wales Crime Commission v Kelaita [2008] NSWSC 98

Reported Decision : 216 FLR 147 181 A Crim R 159

New South Wales Supreme Court

CITATION : New South Wales Crime Commission v Kelaita [2008] NSWSC 98

HEARING DATE(S) : 04/02/2008; 05/02/2008

JUDGMENT DATE : 20 February 2008

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : 1.The defendant's application by Notice of Motion dated 20 March 2007 is dismissed. 2. I order the defendant to pay to the Treasurer the sum of $146,703.

CATCHWORDS : COMMON LAW - Criminal Assets Recovery Act ss 25 & 26 - statutory construction - confiscation - assets forfeiture order - proceeds assessment order

Crimes Act 1900 LEGISLATION CITED : Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985

CATEGORY : Principal judgment

CASES CITED : Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Studman v DPP [2007] NSWCA 285

PARTIES : New South Wales Crime Commission (Plaintiff) Volkard Kelaita (Defendant)

FILE NUMBER(S) : SC 13603/05

COUNSEL : Mr I Temby QC (Plaintiff) Mr M Bowe (Solicitor) (Defendant)

SOLICITORS : New South Wales Crime Commission (Plaintiff) Michael Bowe (Defendant)

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCallum J

20 February 2008

13603/05 The Application of the New South Wales Crime Commission v Volkard Kelaita

JUDGMENT 1 HER HONOUR: These are proceedings under the Criminal Assets Recovery Act 1990 (the Act). On 11 August 2005, the Court made a restraining order under s 10 of the Act on the basis of the events of 10 August 2005, when the defendant was arrested in possession of an amount of cannabis and charged with supply of that drug under s 25 of the Drug Misuse and Trafficking Act 1985. 2 On 21 September 2006, the Court made an assets forfeiture order under s 22 of the Act in respect of the defendant's interest in the following property: