New South Wales Crime Commission v Cassar

Judgment 1The proceedings before the Court have a complicated history. For present purposes, it is sufficient to refer to a series of interlocutory judgments relating to the admissibility of evidence and the reopening of matters to allow for the filing of further affidavits. The New South Wales Crime Commission (hereinafter, "the Commission" or "the Applicant") moved on notice filed on 21 July 2010 for orders under s 31A of the Criminal Assets Recovery Act 1990 (hereinafter, "CARA") against the first defendant in the proceedings, Charles Michael Cassar (hereinafter also referred to as "the Respondent"). 2Orders under s 31A of CARA relate to an interest in property that has not been disclosed, in circumstances where the interest was required to be disclosed, by a defendant to such proceedings in the following terms: "31A Assets forfeiture orders after interests in property not disclosed (1) This section applies if: (a) an application for an assets forfeiture order or proceeds assessment order or unexplained wealth order is made, and (b) evidence or a warranty or other representation was given or made in proceedings for the order, or examination proceedings under this Act, by a person against whom the order is made (the defendant) as to the defendant's interests in property. (2) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown a specified interest in property of the defendant at the time the evidence, warranty or representation was given or made that was not disclosed in the evidence, warranty or representation. (3) The Supreme Court must make the order if the Court finds it more probable than not that the interest in property was an interest of the defendant at the time the evidence, warranty or representation was given or made." 3The earlier interlocutory judgments dealt with the capacity of the Commission to prove the existence of property in which the Respondent had or has an interest and the manner in which such proof could be effected: see, inter alia, New South Wales Crime Commission v Cassar [2012] NSWSC 1170. Other judgments also dealt with the admissibility of a letter (Exhibit S1) from which the Commission seeks to draw an inference, which letter was part of the process whereby the Commission and Mr Cassar negotiated earlier consent orders. 4The jurisdictional precondition to the operation of s 31A of CARA is relevantly a warranty that was said to be given by Mr Cassar as part of consent orders issued by the Court on 21 April 2008. Other than the alleged warranty, the remainder of the consent orders are presently irrelevant. The alleged warranty is paragraph 3 of the consent order and was noted by the Court as part of those consent orders. The warranty was in the following terms: "THE COURT NOTES: ... 3. The First Defendant warrants to the Plaintiff that the First Defendant's only interests in property as at the date of the signing of these orders are the First Defendant's interests in the seized cash (together with any interest earned thereon), and the property specified in Schedule Two hereto ('the Seven Hills property') and Schedule Three hereto ('the Holden motor vehicle')." 5Because of the delay in the final hearing of the matter, the issue relating to the admissibility of documents purporting to prove the existence of the Respondent's interests in property in Swiss banks is no longer extant. Exhibit A in the proceedings is a certificate under the hand of the Acting Assistant Secretary, International Crime Cooperation Central Authority, International Crime Cooperation Division, Attorney General's Department of the Australian Government, being a certification under subsection 26(1) of the Foreign Evidence Act 1994 (Cth) of material obtained as a result of a request made by or on behalf of the Attorney General. It has been admitted without objection and proves an interest in property held in Swiss bank accounts, being property beyond the property described in Schedules Two and Three of the consent orders of 21 April 2008 and therefore property interests beyond that purportedly warranted by Mr Cassar in the note recited above. 6There are two issues in the proceedings: first, whether a warranty of the kind to which s 31A refers can be given by a solicitor or agent on behalf of a defendant or, in other words, whether such a warranty is required to be given personally by a defendant. 7Secondly, whether such a warranty was authorised by the Respondent and, if not, whether ostensible authority is sufficient to satisfy the jurisdictional requirements of s 31A of CARA. 8I am satisfied, on the material before the Court, that it is more probable than not, if the warranty were given, that the Respondent held interests in property beyond that described in the warranty.