New South Wales Crime Commission v Subakti [2016] NSWSC 1421

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Subakti [2016] NSWSC 1421 Hearing dates: 9-10 February 2016; 8-9 March 2016 Decision date: 06 October 2016 Jurisdiction: Common Law Before: Hall J Decision: The application by notice of motion filed on 1 August 2014 for an exclusion order under s 25(1) of the Criminal Assets Recovery Act 1990 should be dismissed. Order to that effect to be made on the re-listing of the proceedings on a date to be fixed in the week commencing 24 October 2016.

The plaintiff, the New South Wales Crime Commission, has established the basis for a Proceeds Assessment Order under s 27 of the Criminal Assets Recovery Act 1990. Subject to any further submissions by the parties an order under s 27 is to be made in favour of the plaintiff upon the re-listing of the proceedings on the date to be fixed in the week commencing 24 October 2016. Catchwords: CRIMINAL ASSETS – exclusion order application pursuant to s 25 of the Criminal Assets Recovery Act 1990 – two properties and other assets the subject of a forfeiture order made under s 22 – business of the applicant's company source of living expenses and of loan repayments in respect of properties the subject of the application – evidence of sale of prohibited substances (anabolic steroids) and prohibited drugs (cocaine) in the course of the business activities of the applicant's company – absence of evidence based on primary source records of the business or any expert analysis as to the income and expenses derived from lawful and/or crime related activity or activities – failure to discharge the onus of proof by the applicant – proceeds assessment order application pursuant to s 27 – defendant sentenced in relation to drug supply offences – expenditure to acquire cocaine and anabolic steroids – drug proceeds expended – expenditure on acquiring properties and mortgage payments – failure on behalf of the defendant to prove the extent of lawful income to be set against the expenditure – evidence established the basis for an order in accordance with s 27(2) Legislation Cited: Criminal Assets Recovery Act 1990 Cases Cited: New South Wales Crime Commission v Kelaita (2008) 75 NSWLR 564; NSWCA 284