NEW SOUTH WALES CRIME COMMISSION v KELLY & ORS; KELLY & ORS v NEW SOUTH WALES CRIME COMMISSION

CATCHWORDS : Criminal law - Confiscation of criminal proceeds - Recovery - Hardship - Assessment of assets subject to confiscation order - Interpretation of statute - Criminal Assets Recovery Act 1990 ss24, 25, 26 - Meaning of "will" - Assets forfeiture order - Accused acquitted at trial - Felony-Tort Rule - Quantum of order - Method of calculation - Error in calculation. Crimes (Confiscation of Profits) Act 1985 Criminal Assets Recovery Act 1990 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Interpretation Act 1987 Poisons Act 1966 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Gallow v Dawson (1990) 64 ALJR 458 Grey v Pearson (1857) 6 HCL 61; 10 ER 1216 CASES CITED : Griffin v Sogelease Australia Ltd [2002] NSWCA 421 Hector Steamship Company v VO Sovfracht, Moscow [1945] 1 KB 343 McMahon v Gould (1982) 6 ACLR 202 R v Fagher (1989) 16 NSWLR 67 New South Wales Crime Commission PARTIES : Lawrence Raymond Kelly Glenda Jane Rangi Lillian Rangi FILE NUMBER(S) : CA 40108/03; 40284/03; 40285/03 COUNSEL : P Singleton - NSW Crime Commission In person SOLICITORS : J M Glorgiutti - NSW Crime Commission In person

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT 50062/00; 50072/00 FILE NUMBER(S) : LOWER COURT Shaw J; Greg James J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40108/03; 40284/03; 40285/03 ED 50062/00; 50072/00

SHELLER JA SANTOW JA TOBIAS JA NEW SOUTH WALES CRIME COMMISSION v KELLY & ORS KELLY & ORS v NEW SOUTH WALES CRIME COMMISSION

The Crime Commission sought leave to appeal against a hardship order made pursuant to s24 of the Criminal Assets Recovery Act 1990. The defendants sought leave to appeal and the Crime Commission sought leave to cross appeal against the quantum of an assets forfeiture order made against the defendants. Well out of time, the defendants sought leave to appeal against the assets forfeiture order itself. HELD (Per Sheller JA, Santow and Tobias JJA agreeing):

1. Section 24 of the Criminal Assets Recovery Act 1990 does not prevent a dependant from bringing proceedings for relief from hardship after a forfeiture order has been made: Hector Steamship Company v VO Sovfracht, Moscow [1945] 1 KB 343 referred to.

2. It has been authoritatively decided that the felony-tort rule has been abandoned in this country: Griffin v Sogelease Australia Ltd [2002] NSWCA 421 followed.

3. The trial Judge was bound to make an assets forfeiture order if he found it to be more probable than not that the person whose suspected serious crime related activity formed the basis of the restraining order was, at any time more than six years before the making of the application for the order, engaged in a serious crime related activity involving an indictable quantity. The trial Judge was not precluded from finding the relevant serious crime related activity even if by then the defendants had been tried and acquitted.

4. The trial Judge erred in calculating that the value of the proceeds derived from the illegal activies.

Crimes (Confiscation of Profits) Act 1985 Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Interpretation Act 1987 Poisons Act 1966 Cases cited:

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Gallow v Dawson (1990) 64 ALJR 458 Grey v Pearson (1857) 6 HCL 61; 10 ER 1216 Griffin v Sogelease Australia Ltd [2002] NSWCA 421 Hector Steamship Company v VO Sovfracht, Moscow [1945] 1 KB 343 McMahon v Gould (1982) 6 ACLR 202 R v Fagher (1989) 16 NSWLR 67 ORDERS

CA 40108/03 1. Crime Commission's application for leave to appeal allowed. 2. Appeal dismissed with costs. 3. Defendants' application for leave to cross-appeal dismissed.

CA 40285/03 1. Extend the time for the defendants to apply for leave to appeal up to and including the date of the filing of the application. 2. Defendants' application for leave to appeal dismissed with costs.

CA 40284/03 1. Defendants' application for leave to appeal dismissed with costs. 2. Crime Commission's application for leave to cross-appeal allowed on ground 1 only, namely that his Honour erred in calculating that the value of the proceeds derived from the illegal activities. 3. On that ground and to that extent appeal allowed. 4. Amend order 2 by substituting "for the amount of $96,000 the amount of $107,782". 5. No order as to costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40108/03; 40284/03; 40285/03 ED 50062/00; 50072/00

SHELLER JA SANTOW JA TOBIAS JA

Tuesday, 9 September 2003 NEW SOUTH WALES CRIME COMMISSION v KELLY & ORS KELLY & ORS v NEW SOUTH WALES CRIME COMMISSION Judgment 1 SHELLER JA:

These three applications for leave to appeal arise out of proceedings which the New South Wales Crime Commission brought in the Common Law Division under the Criminal Assets Recovery Act 1990 (the Act). The proceedings were directed to the property of the defendants Lawrence Raymond Kelly, his de facto wife, Glenda Jane Rangi, and her mother, Lillian Rangi.

The Criminal Assets Recovery Act 2 The Act provides for the confiscation of interests in property that are interests of a person engaged in serious crime related activities and enables proceeds of serious crime related activities to be recovered as a debt due to the Crown. Section 6(1) provides that a reference in the Act to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged, tried or tried and acquitted or convicted (even if the conviction has been quashed or set aside). Relevantly, s6(2) provides that a reference to a serious criminal offence is a reference to an offence referred to (before the commencement of the Drug Misuse and Trafficking Act 1985) in s45A of the Poisons Act 1966 of supplying any drug of addiction or prohibited drug within the meaning of the Poisons Act or of cultivating, supplying or possessing any prohibited plant within the meaning of that Act or a drug trafficking offence. Section 6(3) provides that, relevantly, "drug trafficking offence" means an offence under s25 (supply of prohibited drugs) of the Drug Misuse and Trafficking Act. 3 Part 2 of the Act enables the Supreme Court to make restraining orders restraining persons from disposing of or dealing with an interest in property to which the order applies. The restraining order may be in respect of specified interests, a specified class of interests or all the interests in property of a person suspected of having engaged in a serious crime related activity (s10(1) and (2) of the Act). Division 1 of Pt 3 enables the Supreme Court to make assets forfeiture orders forfeiting to and vesting in the Crown interests in property the subject of a restraining order (s22 of the Act). Sections 25 and 26 of the Act allow for application to be made excluding property or the value of innocent interests from an assets forfeiture order. Division 2 of Pt 3 enables the Supreme Court to make a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from an illegal activity or activities of the person that took place not more than six years before the making of the application for the order (s27 of the Act). 4 Section 7 of the Act provides that a reference to an interest of a person in property is, inter alia, an interest the person has in real or personal property including a reference to the person's money. In s7, "interest", in relation to property, means a legal or equitable estate or interest in the property or a right, power or privilege in connection with the property, whether present or future and whether vested or contingent. 5 Section 4(1) defines "illegal activity" to mean, inter alia, a serious crime related activity.

Restraining order and assets forfeiture order 6 On 24 April 1998 the Crime Commission, by an amended summons filed in the Supreme Court, sought against the defendants restraining orders, various ancillary orders under s12 of the Act and assets forfeiture orders. On 28 April 1998, McInerney J made a restraining order pursuant to s10 of the Act, which restrained disposing of or dealing with all the interests in property of the first and second defendants and certain specified interests of the third defendant. 7 On 4 April 2001, after refusing an application by the defendants to adjourn the proceedings, Greg James J made an assets forfeiture order pursuant to s22 of the Act forfeiting to and vesting in the Crown the interests in property the disposal of which was restrained by McInerney J. Greg James J also made a proceeds assessment order pursuant to s27 of the Act requiring the first and second defendants to pay an amount to be assessed by the Court at a later date on account of the proceeds they had derived from certain criminal activity. Greg James J stayed execution of the assets forfeiture orders for six months to enable applications to be made on behalf of the defendants under ss 25 or 26 of the Act to have excluded an interest or a specified portion of the value of the interest in property from the operation of the assets forfeiture order.

Relief from hardship 8 Section 24 of the Act provides: " Relief from hardship - spouses and dependants (1) If the Supreme Court is satisfied that an assets forfeiture order will operate to cause hardship to any dependant of the person who will forfeit an interest in property under the order, the Court: (a) may order that the dependant is entitled to be paid a specified amount out of the proceeds of sale of the interest, being an amount that the Court thinks is necessary to prevent hardship to the dependant, and (b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age. (2) The Court is not to make an order under this section in favour of the dependant of a person whose serious crime related activity formed the basis for the assets forfeiture order concerned unless the Court is satisfied that the dependant had no knowledge of any serious crime related activities of the person. (3) Subsection (2) does not apply if the dependant concerned is under 18 years of age. (4) In this section: dependant, in relation to a person, means: (a) a spouse or a de facto partner of the person, or (b) a child of the person, or a member of the household of the person, dependent for support on the person." 9 By a notice of motion filed on 21 September 2001, the defendants sought, inter alia, orders pursuant to ss25 and 26 and s24 of the Act. The Crime Commission challenged the competence of the defendants' application under s24 of the Act on the ground that it was beyond the power of the Court to make a hardship order if the Court had already under s22 made an assets forfeiture order of the interests in property out of the proceeds of which an amount was to be paid to prevent hardship to a dependant. The Crime Commission relied upon the use of the future tense in the statement of the condition upon the satisfaction of which the Court might make a hardship order, namely "[i]f the Supreme Court is satisfied that an assets forfeiture order will operate to cause hardship to any dependant of the person who will forfeit an interest in property under the order". Shaw J, who heard the defendants' application for these orders, dealt with the question of competency as a preliminary point and, in a judgment given on 19 February 2003, rejected the Crime Commission's argument. 10 On 17 March 2003 Shaw J heard the Crime Commission's application to make an assessment of the amount of money or other consideration derived by the defendants from their alleged illegal activities between 13 February 1993 and 12 February 1999 and also the defendants' applications under ss25 and 26 and s24 of the Act. 11 On 24 March 2003 his Honour, pursuant to s27(1) of the Act, ordered the first two defendants to pay to the Treasurer an amount of $96,000, being the amount assessed by the Court as the value of the proceeds derived from the illegal activities of the first and second defendants within the six years prior to the making of the application for the order and pursuant to s24 ordered that in the event of the sale of the property known as 11 Brent Street, Boggabri by the Public Trustee, an amount of $20,000 be allocated for the three dependent children under the care of the first and second defendants pursuant to s24 of the Act. His Honour made no orders under s25 or s26 of the Act.

Applications for leave to appeal 12 The Crime Commission sought leave to appeal from the decision of Shaw J given on 19 February 2003 (CA 40108/03). The defendants sought leave to cross-appeal against the quantum of the order made on 17 March 2003. 13 The defendants sought leave to appeal and the Crime Commission sought leave to cross-appeal from the decision of Shaw J of 17 March 2003, each on grounds to which I shall return (CA 40284/03). 14 Well out of time, the defendants sought leave to appeal from the decision of Greg James J of 4 April 2001 on grounds to which I shall return [CA 40285/03).

Leave to Appeal from Shaw J's decision of 19 February 2003 15 It is convenient to deal first with the leave application by the Crime Commission from Shaw J's judgment of 19 February 2003. Section 24 of the Act is found in Div 1 of Pt 3, which concerns assets forfeiture orders. The hardship order which the Court is empowered to make assumes that an assets forfeiture order has been made forfeiting to and vesting in the Crown interests in property, that the interests have been or will be disposed of by the Public Trustee in accordance with the directions of the Treasurer (s23(2)) and that the proceeds will ordinarily be paid to the Treasurer and credited to the proceeds account. Section 24(1)(a) describes the order as one entitling the dependant to be paid a specified amount out of the proceeds of sale of the interest which is necessarily an interest in property forfeited under the assets forfeiture order. 16 In rejecting the Crime Commission's submission Shaw J observed: "The policy and intention of the Act allows this court to deal with an application for relief from hardship, even when such application has not been made until after the date of the original application for forfeiture. Of course, practical difficulties which have obvious implications for the discretion of the court would arise if such a hardship application were made after the quantification of the amount of property to be forfeited or, more starkly, after the execution of any such order." 17 The only factor favouring the Crime Commission's argument is that part of the condition of power to make a hardship order under s24(1), which describes the dependant as the dependant of "the person who will forfeit an interest in property under the order". If that phrase is intended to limit the Court's powers to making an order in favour of a dependant of a person who in the future will forfeit an interest in property, it follows that that person has not yet forfeited an interest in property or, in other words, that an assets forfeiture order of that interest in property has not been made before the hardship order is made. 18 By contrast the legislature in s25 of the Act, which is also in Div 1 of Part 3, expressly conditions the application for exclusion of property, upon an assets forfeiture order having been applied for but not made or having been made, and, in s26, for the exclusion of the value of innocent interests, upon its being proved that it is more probable than not that a specified proportion of the value of an interest in property "that has been forfeited under an assets forfeiture order" is not attributable to the proceeds of an illegal activity. Section 25(4) provides that after an assets forfeiture order has been made, an application for an exclusion order may not be made by a person unless made within six months after the assets forfeiture order took effect, without the leave of the Court. Section 26(4) is an identical provision. 19 The word "will" in the expression "will operate to cause hardship to any dependant" in the condition can be read as emphasising the degree of satisfaction to be reached by the Court before making an order. To adopt what was said by Atkinson J in Hector Steamship Company v VO Sovfracht, Moscow [1945] 1 KB 343 at 348, the use of the word "will" suggests "what is inevitable" at the time the order is made as distinct from what may happen. In that sense the expression is concerned with future hardship the result of an assets forfeiture order. 20 The literal approach to the interpretation of legislation proceeds from the proposition that the intention of parliament is to be found in what the language of the statute means in its ordinary and natural sense; see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2 per Higgins J. Where this rule leads down a path to absurdity or some repugnance or inconsistency with the rest of the statute, the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency but no further, the so-called golden rule; see Grey v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234. 21 The alternative purposive approach looks more to the purpose to be achieved or the mischief to be remedied by the legislation and is now an overriding consideration in light of s33 of the Interpretation Act 1987 which provides: "In the interpretation of a provision of an Act …, a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act) … shall be preferred to a construction that would not promote that purpose or object." 22 It is impossible to understand why the word "will" was used in the expression "dependant of the person who will forfeit an interest in property under the order". An assets forfeiture order only operates to cause hardship to the dependant of a person if that person has forfeited an interest in property under the order. There is no relevant hardship unless an assets forfeiture order has been made. Furthermore, it may be unknown whether there is hardship or, if so, its extent until the court decides whether the assets forfeiture order will be to specified interests or a specified class of interests or all the interests of the person or whether exclusion orders should be made. It could scarcely be suggested that the section is directed only to the hypothetical case contemplated in s25(1)(a) of the dependant of a person whose interest in property might be subject to an assets forfeiture order if made. Yet that in substance is the Crime Commission's argument. 23 I think it likely that the insertion of the word "will" before "operate" was intended but the insertion of the word "will" before the words "forfeit an interest in property" was a mistake. To avoid repugnancy and make legislative sense this phrase should be read as "dependant of the person who has forfeited an interest in property under the order". 24 The purpose of s24 was to relieve dependants from hardship caused by an assets forfeiture order. To my mind, it is absurd to suggest that that purpose should be defeated by a technicality, namely, that the dependant must apply for and obtain an order before the assets forfeiture order is made. Clumsy though the language is, it should not be read as denying a dependant the opportunity to bring proceedings for relief from hardship under s24 after an assets forfeiture order has been made. Such an arbitrary, unreasonable, pointless and ill-expressed limitation could achieve no sensible public purpose. In my opinion, the Crime Commission's application for leave to appeal from Shaw J's judgment should be granted but the appeal should be dismissed with costs. The Crime Commission does not challenge the hardship order made in the later judgment on its merits.

Leave to Appeal from Greg James J's decision of 4 April 2003 25 Part 51.4(1) of the Supreme Court Rules provides that an application for leave to appeal to the Court of Appeal should be made by filing and serving on each necessary party within twenty-eight days, relevantly, from the date on which judgment was given. Sub-rule (6) provides that the Court of Appeal may extend time under sub-rule (1) at any time. In Gallow v Dawson (1990) 64 ALJR 458 on a summons in the High Court for an extension of time in which to file a notice of appeal against an order made in the original jurisdiction of the Court, McHugh J at 459 said: "The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92: Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which it can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' " 26 We heard argument on the leave application without separately considering whether there should be an extension of time and it is convenient first to consider the merits of the application. The five grounds of the proposed notice of appeal were as follows: "1. No way were we to receive a fair trial that day. At the time appearing [sic] before Justice Greg James there was an outstanding Reversal of Plea in the District Court that had to be dealt with. It was unfair that the unrepresented respondents would be required to enter evidence in this court before the criminal matter had been resolved. By not allowing us an adjournment, His Honour Justice James forced us into a Kangaroo Court. 2. I'd also be relying on the transcripts of Justice Carruthers of the 11 September 2000 whom [sic] agrees with Mr Temby on two issues as to why our matter could not proceed that day. 3. We realize that there is a time issue on this appeal. At the time we were not informed adequately on the correct appeal procedure. We believe this had been done. 4. Justice James predetermined the outcome of the evidence that he based his decision on. The tapes that his honour heard were not to be admitted or used as evidence against us, the ruling by his Honour Woods during our criminal trial. This is why his Honour should have awaited the outcome of the criminal proceedings first, as he has now made the wrong decision based on evidence that he should have never seen or heard. 5. It was wrong of his Honour to try and force us into the stand to give evidence. We had to make a decision. To give our evidence before the criminal trial against the wishes of our criminal counsel or choose to say nothing to safe guard the criminal proceedings but then have all our assets forfeited. Or we could get in the stand to try and save our belongings but in the process maybe ruin our chances at District Court, or possibly both trials. Everybody is entitled to a fair trial. No one should have to compromise one trial over another." 27 In part the appeal is directed against the judgment given by Greg James J on 4 April 2001 refusing the defendants' application for an adjournment. In that judgment his Honour observed that the proceedings had been adjourned to 4 April 2001 from the day on which the hearing had been listed to proceed. His Honour said: "2 By way of background, I note the judgment published on Monday adjourning the matter to enable the defendants a last opportunity to put on some evidence contesting the proposition that they have been engaged in serious crime related activity within the past six years. That opportunity has not been availed of. Further, in trenchant discussion of the renewal of the adjournment application by the defendants' counsel this morning, I made it clear that the issue with which I was concerned was whether or not the defendants were intending to seek to contest the issue of whether they had been engaged in serious crime related activity. But no real matter was put forward to suggest a basis of contest other than that they opposed the making of the forfeiture order. 3 They contend their property was lawfully obtained, a matter not going to the making of a forfeiture order, but to the prospects of exclusion of that property from the operation of that order. They contend that their counsel has been late briefed, and only briefed on the adjournment application, rather than on the substance of the application and that the matter is, on their part, unprepared. 4 I should, however, note that I drew the attention of both counsel to the affidavits of the defendants and, in particular, Part 5 of each affidavit, by which each defendant asserted that they were innocent of the criminal charges led against them and upon which the plaintiff's case relies and further asserted that the criminal case against them 'has been prepared corruptly'. 5 They particularise, in that regard, that corrupt police officers had sought to utilise Mr Kelly to sell drugs for them and that he had refused to co-operate, that they had used an informant allegedly to buy drugs from him, but he had not sold drugs but prawns in lieu. 6 Further, that the informant, although he had provided evidence of the drug selling, had been threatened by corrupt police officers to change his statements and had now provided a new statement to an independent police officer that he had never purchased drugs from Mr Kelly, but had only purchased prawns. 7 I have further been informed that it is sought by the defendants to withdraw the pleas that they had entered to the indictments preferred against them in the District Court, albeit that those withdrawals appear to have been first contemplated at a time following the confirmation of the pleas, notwithstanding the retraction of the informant's statements, or so I am informed by Senior Counsel for the New South Wales Crime Commission. 8 Whether the pleas are withdrawn or not, whatever be the fate of the criminal proceedings, those proceedings do not determine what happens in these proceedings although, of course, should there be a conviction it becomes rather difficult for the defendants to assert that a case of their being involved in serious crime related activities could not be established beyond the balance of probabilities, and what evidence they might give in these proceedings might well be available for use in the criminal proceedings, as I pointed out during the argument. 9 But these proceedings simply turn on whether the Commission on the evidence in these proceedings satisfies me on the balance of probabilities that the defendants have been engaged in serious crime related activity. Since the affidavit material filed appeared to be the only material potentially available for the defendants notwithstanding three opportunities provided by the Court for material to be filed, I inquired of counsel for the defendants as to whether it was intended that those affidavits would be read, and the deponents made available for cross-examination. I was told it was not intended that either of those events would occur. 10 That would leave the case for the Commission uncontradicted. In effect, that would leave the position as being that no opposition of an evidentiary nature is presented to the making of the orders as sought. I pointed out to counsel for the defendants that the lack of a basis for opposition to the making of the orders would suggest there was no rational basis for an adjournment. Nothing has been forthcoming to suggest any other rational basis for an adjournment in the light of that observation. In the circumstances, there seems no basis on which the present proceedings should not be heard." 28 Accordingly, Greg James J refused the application for adjournment and the matter proceeded on that day and the orders already referred to were made. In his judgment of that day on the Crime Commission's claim for an assets forfeiture order, after referring to the adjournment applications, his Honour said: 3 It is to be noted that the defendants have sought to withdraw pleas of guilty entered by them in the District Court to charges of supplying an indictable quantity of amphetamines. Those pleas have not been withdrawn, and nor has the Court yet heard an application to withdraw the pleas. At present they stand as admissions of the most solemn kind, of all matters of fact and law, necessary to support convictions on the charges against them: see Regina v Chiron (1980) 1 NSWLR 218. 4 Nonetheless, because there is an application to withdraw the pleas, even though as I will show, proceedings under the Criminal Assets Recovery Act 1990 are not conviction based, and because there is in support of that application, statements which have been tendered to me from a man who one might regard as the instrument or purchaser of drugs in what might be referred to as sting operations, recanting from his initial accounts of the defendants' drug dealing, I will accord to those pleas less significance and weight than I would otherwise, to the extent that, for the purposes of this decision, and having regard to the fact that the defendants became unrepresented when I declined the adjournment, notwithstanding the powerful submissions of Mr Temby, QC for the Crime Commission to the contrary, I will disregard the pleas. 5 Further, I will disregard the recantation statements of the person Parker as affecting the evidence contained in his affidavit, accepting insofar as it goes to show that both in his recantation and in chief, he is personally a person who I consider to be of no credit whatsoever, so that I would reject the evidence that he gave, unless it is confirmed or supported otherwise. 6 In this case, however, having had regard to the other evidence on its own, and considering this as though it were a circumstantial evidence case, as opposed to a case relying on the direct evidence of Parker, the proof not only exceeds all that is necessary in law to prove the assertions of the Crime Commission as to the defendants having engaged in the process of drug supply during the month preceding 3 April 1998, but also having engaged in actual transactions involving indictable quantities on 3 April and 6 April of that year. 7 So it is when one examines the evidence of the police officers, whose evidence was unchallenged and who it was not sought be called for cross-examination, one finds established the purchases by Parker, whether his evidence is given any significance on that question or not. 8 The following evidence establishes the transactions on which the plaintiff relies. The police officers observed Parker in his journeys to and from the premises of the defendant, Kelly. On at least one occasion they watched and observed small envelopes containing white powder being passed by the defendants to Parker. Parker then produced those envelopes to the police officers. A clear chain of possession shows that what was contained in those envelopes by way of white powder was an indictable quantity of the drug. 9 The defendants have not given evidence before me. They have filed affidavits denying any dealing in the drugs. When they were represented on the adjournment application, I was informed that those affidavits would not be read and that the defendants would not give evidence personally. After terminating their lawyer's retainer, they have defended the proceedings brought by the Crime Commission. In address, Ms Rangi, on behalf of herself and her husband, Mr Kelly, has denied dealing in, or ever selling any drug by either of them. None of the defendants was willing to give evidence, however. 10 I can give no weight to that denial because it is not in evidence and so many opportunities have been given to those defendants during the progress of the adjournment applications and on two prior occasions to put on evidence of their denials, and to submit themselves to cross-examination." 29 His Honour went on to refer to evidence given by several police officers about dealings between the defendant Kelly and the informant in April 1998 and to some conversations on tapes and concluded that he was required by s22(2) to make an assets forfeiture order, it not being necessary for a finding that a serious crime related activity involving an indictable quantity had taken place, to be based upon a particular offence, or as to any particular quantity. His Honour also made a proceeds assessment order under s27. 30 On 9 November 2001 his Honour Judge Coorey in the District Court dealt with the first and second defendants' applications to withdraw pleas of guilty in the matters relating to the supply of methylamphetamines. His Honour heard evidence from the two defendants and concluded, on the balance of probabilities in the exercise of his discretion, that both defendants had satisfied the onus of showing that a miscarriage of justice would occur if they were denied leave to withdraw their pleas of guilty. Accordingly, his Honour gave such leave. 31 The trial of the first two defendants on three counts relating to the alleged supply of methylamphetamines in 1998 came before his Honour Judge Woods QC and a jury. On 25 July 2002 during the course of cross-examination by counsel for one of the defendants of an informant known as "Mr Brown", an application was made that the witness's evidence should be withdrawn from the jury on the basis that he was not a competent witness. The witness had been used by police as a controlled agent strapped up with a listening device and asked to enter premises occupied by the two accused for the purpose of stimulating possible evidence of the supply of drugs. His Honour observed that this was a well-known and normally uncontroversial way of proceeding in this area of law enforcement. "However, the difficulty arises because the witness, Mr Brown, has demonstrated himself to be not merely a person with a long criminal history, but to have a significant history of mental illness." Later his Honour observed: "I am bemused about the meaning of much of this man's evidence, but it seems to me on the balance of probabilities that significant parts of his evidence are motivated by irrational fears produced by a chronic condition or paranoia relating to his tragically long standing poly-drug abuse and paranoid schizophrenia. His evidence, it seems to me, is dangerously irrational." 32 His Honour reached the conclusion that the witness was incompetent within the terms of s13 of the Evidence Act 1995 and decided to instruct the jury that the evidence that he had given was withdrawn from their consideration in the trial and so ordered. 33 On 30 July 2002 Judge Woods said: "An indictment was before me last week. That indictment, which was tried before me between 17 July and 25 July, contained as counts two and three what are now counts one and two of the present indictment. There was a verdict of not guilty on count one of the previous indictment and on one view that indictment might still be said to be before me since the jury were discharged as to that indictment, but for more abundant caution, at the instance both of the Crown and the defence, a new indictment is presented. The relevance of that is that there has been considerable argument over the last several days at the bar table as to the admissibility in the trial on what is now the present indictment of evidence generated by the use of a person having the pseudonym Brown in a controlled operation organised by police culminating in the arrest of the accused for these charges." 34 Counsel for the defendants before Judge Woods contended that the evidence brought into existence by the controlled operation should be excluded under s138 of the Evidence Act, as improperly or illegally obtained, or under s137, as prejudicial evidence, or both. His Honour found that the police involved in the controlled operation were aware that Mr Brown, who was proposed as a controlled agent, was mentally disturbed. Yet when the application was made for a controlled operation authority to the Deputy Commissioner of Police nothing was put to the Deputy Commissioner about Mr Brown's history of mental stability. In his Honour's view it should have been. This gave rise to an impropriety which affected the coming into existence of the subject evidence and was an impropriety under s138(1)(b) of the Evidence Act. Taking account of a number of matters, his Honour concluded that under s138(1) the evidence flowing from the use of Mr Brown in the controlled operation should not be admitted. His Honour also concluded that s137 required that he exclude the evidence. At the end of his reasons, Judge Woods said: "I should make it clear that in reaching this conclusion I am not attributing to the police involved any personal moral blame. In my view the choice of Brown as a controlled agent is simply an error of judgment which has the unfortunate outcome of vitiating the use at trial of evidence generated by his involvement. This is no more a matter of moral blame than it is for the police involved in the earlier proceedings where it seems the use of a particular police undercover operative vitiated a proposed trial as a result of something which arose out of the Police Royal Commission. As I say, the evidence will be excluded." 35 As a result of these rulings the prosecution case collapsed and the two defendants were acquitted. Perhaps understandably the defendants rely upon their acquittal and the rejection of a substantial part of the prosecution's evidentiary case to undermine the conclusion that Greg James J reached for making assets forfeiture orders. Furthermore, implicitly they claim that this would not have happened had the civil proceedings been adjourned to await the outcome of the criminal proceedings. 36 It has been authoritatively decided in this Court that the felony-tort rule, which entitled a party in civil proceedings, founded upon a cause of action that involved facts constituting a felony, to obtain a stay of the proceedings until the felony was prosecuted, has been abandoned in this country; see Griffin v Sogelease Australia Ltd [2002] NSWCA 421. To quote from the decision of Wootten J in McMahon v Gould (1982) 6 ACLR 202 at 207: "The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding." 37 In his reasons for judgment Greg James J said he considered the witness Parker (Mr Brown) to be of no credit whatsoever and rejected the evidence that he gave unless confirmed or supported otherwise. He said that having had regard to other evidence on its own and considering this as though it were a circumstantial evidence case, the proof not only exceeded all that was necessary in law to prove the assertions of the Crime Commission as to the defendants having engaged in the process of drug supply during the month preceding 3 April 1998 but also having engaged in actual transactions involving indictable quantities on 3 April and 6 April 1998. This followed examination of the evidence of the police officers, which, as his Honour observed, was unchallenged. The police officers were not required for cross-examination. Their evidence established the purchases by Parker. His Honour carefully reviewed that evidence. Whatever may have been the constraints the defendants felt under about giving evidence, whether those constraints were actual or perceived, it is significant that they did not attempt to cross-examine the police witnesses. His Honour did say that he could give no weight to the defendants' denial, in the course of address, of dealing in or ever selling any drug, because it was not in evidence and so many opportunities had been given to those defendants during the progress of the adjournment applications and on two prior occasions to put on evidence of their denials and to submit themselves to cross-examination. 38 The second defendant, Glenda Rangi, who put submissions on her own behalf and on behalf of her husband and mother, claimed that the defendants were unaware of s128 of the Evidence Act, which applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence against an Australian law (subs (2)). Subject to subs (5) if the Court finds there are reasonable grounds for the objection, the Court is not to require the witness to give that particular evidence and is to inform the witness (subs (2)): (a) that he or she need not give the evidence, and (b) that, if he or she gives the evidence, the court will give a certificate under the section, and (c) of the effect of such a certificate. 39 If the witness gives the evidence, the court is to cause the witness to be given a certificate under the section in respect of the evidence (subs (3)). If the court is satisfied that the evidence concerned may tend to prove that the witness has committed an offence against an Australian law and the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence (subs (5)). If the court so requires, it is to cause the witness to be given a certificate under the section in respect of the evidence (sub (6)). In any proceeding in a New South Wales court, evidence given by a person in respect of which a certificate under the section has been given cannot be used against the person other than in criminal proceedings in respect of the falsity of the evidence (subs (7)). 40 Ms Rangi referred us to s132 of the Evidence Act. That section provides that if it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of Pt 3.10, in which is found s128, "the court must satisfy itself that the witness or party is aware of the effect of that provision." Ms Rangi claimed from the bar table that Greg James J had an obligation under s132 to advert to the procedure available under s128 but had not done so. 41 The defendants did not put on any evidence to support the case that they were unaware of the provisions of s128 or that this section was not brought to their attention. On the application for adjournment on 4 April 2001 the defendants were represented by counsel. They put on affidavits in which each asserted they were innocent of the criminal charges against them upon which the Crime Commission's case relied. Greg James J observed that during the argument he pointed out that evidence given in the proceedings might well be available for use in the criminal proceedings. He inquired of counsel for the defendants as to whether it was intended that the affidavits would be read and that the deponents made available for cross-examination and was told that it was not intended that either of those events would occur. 42 There would be absolutely no reason for Greg James J to suppose that, before making the decision neither to read the affidavits nor to give oral evidence, the defendants had not discussed this course at length with their counsel and been advised of the procedure available under s128. What is particularly telling in this regard is the failure to seek to cross-examine those witnesses who were called by the Crime Commission. Despite the protests of Ms Rangi, the only inference is that on the hearing before Greg James J the defendants accepted or, at least, had decided not to attempt to contradict, the Crime Commission evidence by cross-examination or by giving evidence themselves. In my opinion, although the allegations made about non-compliance with s132 of the Evidence Act cause some concern, I am satisfied they have no substance. 43 What is critical is that Greg James J was bound to make an assets forfeiture order if he found it to be more probable than not that the person whose suspected serious crime related activity formed the basis of the restraining order was, at any time more than six years before the making of the application for the order, engaged in a serious crime related activity involving an indictable quantity; s22(2). His Honour was not precluded from finding the relevant serious crime related activity even if by then the defendants had been tried and acquitted: s6(1). What I have said deals with ground 1. 44 The Crime Commission in its submissions pointed out that in his judgment of 17 March 2003 Shaw J re-visited the evidence relating to serious criminal activity and said: "22 On the evidence, and having regard to the prior findings of Grey James J, I am compelled to find that the statutory pre-requisites have been met and that I am required to make a proceeds assessment order against the defendants. I am particularly influenced by the provisions of s27(3) to the effect that the Court does not require, in determining whether the prerequisites have been met, the establishment of a particular offence or a finding as to any particular quantity involved. The Court does not require evidence of any conviction of a relevant offence. This is legislation which may have drastic effects, but the Court is obliged to act in accordance with it." 45 The second ground of appeal is directed to part of the transcript before Carruthers AJ on 11 September 2000 in which he agreed with Mr Temby QC, who was appearing for the Crime Commission, on two issues as to why the matter could not proceed on that day. One was that the forfeiture application was based upon proof of serious crime related activities and the Crime Commission placed considerable reliance upon pleas of guilty, which the first and second defendants were then seeking to withdraw. It was said that it seemed convenient to await the outcome of that application to see what significance, if any, the pleas were to have. Secondly Mr Temby said that the Crime Commission did not have the affidavit material needed to enable it to proceed otherwise than on the basis of pleas of guilty. 46 By the time the application for an assets forfeiture order came before Greg James J in April 2001, the applications for leave to withdraw the guilty pleas still had not been heard but the evidence required for a fuller consideration of the application for assets forfeiture orders had been prepared and was put before Greg James J and not challenged by the defendants. There is, with respect, nothing in this ground of appeal. 47 Ground 3 relates, apparently, to the failure of those advising the defendants adequately to inform them about the correct appeal procedure. This is a matter taken up in whether or not an extension of time should be granted. In any event, it was not supported by evidence. 48 Ground 4 relates to the tapes admitted by Greg James J and then subsequently rejected by Judge Woods. The Crime Commission pointed out correctly that Greg James J was not bound to reject the tapes on the grounds which later found favour with Judge Woods. The ground, therefore, has no merit. 49 As I have already pointed out, the fifth ground relates to the civil proceedings taking place before the criminal proceedings. In this case there was no legal impediment to this sequence. In particular, it did not make the civil proceedings unfair. It was a matter for the defendants whether or not they would give evidence. They chose not to give evidence. Furthermore, they chose not to cross-examine any of the witnesses relied upon by the Crime Commission. Those were decisions which, as the ground itself makes plain, were made with the advice of counsel. 50 In my opinion the appeal as formulated in the draft notice of appeal against the decision of Greg James J would be bound to fail. In the circumstances, I would extend time for the making of the application for leave to appeal up to and including the day on which the application was filed in Court but I would refuse leave to appeal.

The defendants' application for leave to appeal against the decision of Shaw J of 17 March 2003 and the Crime Commission's application for leave to cross-appeal. 51 It is convenient to deal first with the Crime Commission's cross-appeal. In his judgment, Shaw J rejected each of three methods advanced by the Crime Commission, based on evidence from a financial analyst, Mr Robert Davis, for assessing the amount of money or other consideration the defendants derived from their illegal activities in the period from 13 February 1993 to 12 February 1999. 52 Section 27(1) of the Act required the Court to assess the value of the proceeds derived from the illegal activity or illegal activities of the person that took place not more than six years before the making of the application of the order. It is important to observe that the value to be assessed was the value of the proceeds and not some "net" figure in the nature of the profit from such activities. The Court must recognise that it is not likely that the Crime Commission would be able meticulously to prove a particular quantum representing those proceeds. There are unlikely to be any accurate books or records of drug sales. In their absence it is appropriate to adopt a rough and ready approach; see R v Fagher (1989) 16 NSWLR 67 at 80, a case to which Shaw J referred, concerned with analogous legislation: the Crimes (Confiscation of Profits) Act 1985. 53 The Crime Commission accepted that it was open on the evidence for his Honour to reject the evidence supporting the three methods put forward but submitted that his language indicated that he had simply rejected the methodology without giving reasons for doing so. Shaw J said: "52 The methods of assessment adopted by the plaintiff were as follows. First, the court could determine from four known sales of illegal drugs (two in 1995 to Mr Clarke and two in 1998 to Mr Parker) a series of daily transactions to multiple numbers of purchasers each at $200 per supply. At two sales per day over the period from 1993 to 1998 the plaintiff submits the proceeds would amount to $1,095,000 for Ms Rangi and $1,018,958.33 for Mr Kelly. 53 This method of assessment must be rejected. There is no simple evidence upon which the Court can be persuaded on the balance of probabilities that the defendants were engaged in the regular sale of illegal drugs in the order of those amounts. The observations of former police officers that members of the public would visit the defendants do not amount to proof of drug sales. 54 The second method of assessment urged by the NSWCC was to receive evidence of a diminution of the use of the needle exchange program at Boggabri District Hospital following a search of the defendants' premises as indicative of the supply of illegal drugs by the defendants. Extrapolation of these figures generates figures of $1,125,000 for Ms Rangi and $1,031,250 for Mr Kelly. 55 This method of assessment must be rejected. There is plainly no evidence upon which the Court can proceed according to this methodology. 56 The third method offered by the NSWCC was to take the profits asserted by Mr Kelly on the seafood business as actually derived from the sale of illegal drugs. According to this method the NSWCC offers an assessment of $1,560,000 for Ms Rangi and $1,451,666,67 for Mr Kelly. 57 This method must similarly be rejected. Though the plaintiff drew some comfort for the fact that each method generated a similar figure the Court cannot rely on either method of assessment offered as reliable and based on actual evidence. Accordingly I am required to undertake my own assessment of the profits generated by the defendants, taking into account money acquired from Mr and Mrs Rangi and profits derived from the seafood business." 54 With due respect this passage reveals that his Honour was not persuaded that the proceeds thrown up by such calculations from the limited bases suggested were supported by evidence. His Honour said quite simply he was not persuaded on the balance of probabilities that the defendants were engaged in the regular sale of illegal drugs in the order of those amounts. Observations by police officers that members of the public would visit the defendants did not amount to proof of drug sales nor did a diminution of the use of the needle exchange programme at the local hospital or profits asserted to have been made from the seafood business. Whatever may have been the merits of each of the methods in other circumstances, the evidence was, in the opinion of Shaw J, insufficient to demonstrate the result on the balance of probabilities. No ground is shown for this Court to interfere with those findings of fact. 55 Accordingly, the trial Judge was required to undertake his own assessment. He referred to what he described as the final method of assessment asserted by the Crime Commission, namely to compare the income generated by the defendants against their expenditure. His Honour said: "58 … Mr Davis concludes that Mr Kelly and Ms Rangi spent $161,782 more than they earned from 1993 to 1998. The plaintiff asserts that this figure represents the minimum figure for net profits since it assumes that there was no other expenditure and that drug sales account only for this deficit and were not responsible for generating a greater income. 59 Mr Davis gave this evidence about the amounts of expenditure for the seafood business according to receipts and documents provided to him. He concludes that the business had an approximate expenditure of $12,000 based on those documents. Mr Davis conceded that if further invoices existed, his figures would need to be adjusted. 60 In my opinion the most rigorous and methodologically correct evidence as to the comparison between the legitimate income of the defendants and known expenditure is to be obtained from the affidavit of Mr Robert Davis. Although the applicant suggests that that constitutes an ' underestimate ', nevertheless, it seems to me that is the appropriate basis upon which the judgment and orders should be made and the conclusion of Mr Davis is that there was a deficit (that is a contrast between legitimate and illegitimate earnings) of $161,782. 61 The plaintiff contends that this figure is the ' absolute minimum ' of net profits from drug sales. The plaintiff submits this figure makes a number of assumptions favourable to the defendants. Nonetheless I feel more confident in basing an assessment on expert analysis of the financial position of the defendants rather than some broad and perhaps excessive figure which might do injustice to the dependants. The applicant suggests that that figure should be doubled, as I understand it, because two people were involved. I do not regard that as compelling or even persuasive. Mr Davis does not suggest that the estimated deficit should be doubled in relation to an assessment of gross drug proceeds and therefore I would accord weight to his 'bottom line' figure. 62 The question then arises as to whether the figure calculated by Mr Davis should be discounted or ameliorated on any basis in accordance with to the statutory regime [sic]. 63 Mr Temby, QC, fairly conceded for the NSWCC, that it is distinctly possible that monies came in from New Zealand as a result of Ms Rangi's parents' contribution to the family in New South Wales. 64 Mr Davis has given evidence as to the amount of money that could have been brought into the country during the trips made by Mr and Mrs Rangi (and received by Mr Kelly and Ms Rangi on trips taken to New Zealand) according to the evidence of Mr Rangi before the Registrar. Mr Davis deposed that such figure amounts to a maximum of $58,090. In a comprehensive analysis of the possible amounts of money imported into Australia by Mr and Mrs Rangi from New Zealand Mr Davis' evidence reveals that at times Mr Kelly and Ms Rangi were up to $23,220 out of pocket though making cash transactions of up to $10,000 at the time. 65 I accept Mrs Rangi's evidence (the mother of the second defendant) that some monies were brought in, although I acknowledge the difficulties arising from the incapacity of her husband (on medical grounds, accepted by all parties) to give evidence before this Court. Doing the best I can, I think the calculations in relation to money which came in from New Zealand relatives result in a figure of $50,000 and therefore this should be deducted from the figure of confiscation I have otherwise indicated. 66 In addition, I think that it is undoubted that some profits were raised from the fish mongering business although it is my view that the defendants' evidence as to the quantum of those profits is grossly exaggerated. In the inflation of figures from $1,000 per week profit to $10,000 it is difficult to assess a proper figure. The Court is willing to give weight to the evidence of Mr Evans that he would could generate approximately 25 per cent profit on expenditure. Taking an expenditure of approximately $12,000 the Court will consider a profit from the seafood business in the amount of $4,000 . Accordingly, I would deduct $4,000 from the figure as being a rough and ready estimate of the amount that might have been earned form the sale of fish and prawns. 67 Thus, the Court can make an assessment that the amount of income generated by the defendants from criminal related activity in the amount of $96,000." 56 The Crime Commission attacks this conclusion in two ways. First it claims that the figure produced is a net figure or, as it were, profit from the sale of drugs and takes no account of what the "proceeds" of those sales were. In a sense this is true but Mr Singleton, who appeared for the Crime Commission, conceded that no evidence was given to indicate the sale price of the drugs allegedly traded or the percentage that the net profit could be expected to be of the total sales receipts. Such evidence would have been available to the Crime Commission but was not called. His Honour had no choice but to assess the value of the proceeds derived from illegal activity on the material presented by the Crime Commission. His Honour acknowledged that this represented the minimum figure for net profits. In my opinion, this ground of appeal would have no prospect of success. 57 Finally the Crime Commission pointed out that there was a mathematical error in the result his Honour reached namely, the amount of $96,000. According to his Honour's reasons the figure should have been $161,782 less $54,000 (the sum of $50,000 which came from New Zealand and $4,000 the estimate of the amount that might have been earned from the sale of fish and prawns). This produces, and in this the Crime Commission seems to be right, a total of $107,782. 58 In regard to this judgment the defendants' application for leave to appeal was directed to Mr Davies' calculation of receipts from the seafood run at $12,000 outlay. Further, it was said that the evidence of a witness, Barry Norris, should have been before the trial Judge. During an examination before a Deputy Registrar he is said to have given evidence that he had brought in some $25,000 from New Zealand which should have been added to the allowance of $50,000 for imported money. The defendants did not press matters set out in par 4 of their document headed "Summary of grounds for Justice Shaw". 59 In support of the defendants' argument we were referred to the transcript of Mr Norris's evidence before the Deputy Registrar and to material placed before Shaw J which indicated that all the records of the seafood business had been seized by the Crime Commission and were not available to the defendants in support of their case. They also referred to material in Council records and taxation records pointing to the longevity of the seafood business. 60 The Crime Commission submitted that Shaw J reached the $4,000 figure in the following way: · He accepted that the defendants had produced to Mr Davis approximately $12,000 worth of receipts for their expenditure on seafood (ie their business inputs). · He accepted evidence from another seafood seller in the relevant district, Leonard (Bert) Evans, that he could make a 25 to 30 per cent profit on selling seafood. · He applied a profit rate of 25 per cent to the known $12,000 outlay producing a profit of $4,000. 61 His Honour was satisfied the defendants had grossed $16,000 from selling seafood and found not an $8,000 loss but a $4,000 profit. He allowed the defendants the benefit of that amount in calculating what they must have derived from illegal activities in order to fund their known expenditure. This demonstrates that the particular error relied upon has no substance. The defendants argued before us that the business of Mr Evans at the time he gave evidence was not comparable and was less profitable than the defendants' business. But on the evidence before Shaw J, where no doubt these arguments were advanced, there is nothing to suggest that the method adopted by the trial Judge was erroneous in the way suggested. 62 In the hearing before Shaw J the defendants were represented by counsel. Mr Temby QC, who appeared for the Crime Commission, tendered the examination transcripts of each of the defendants and George Rangi, Glenda's father. He said on 11 February 2003 (page 24 of the transcript): "There was one other examinee, a man named Norris. There has been nothing brought forward concerning him by way of affidavit material from the other side. They are not relying upon him and, accordingly, I do not need to. I am not tendering that small part of the examination transcript which relates to Norris which, for my learned friend's benefit, is from pages 85 to 97 inclusive of the examination on 7 May 2001." 63 On 27 March 2003 Mr Temby said: "My present purpose is to say that there is no non-family evidence as to the importation of money and there is little with respect to seafood evidence and nothing which goes beyond what the Commission suggests that the court will accept, that there was a little seafood selling for a confined period in 1996. So far as the lack of supporting evidence is concerned, it is a notable fact that a Barry Norris, who is a cousin of Mr George Rangi, is said to have brought money into the country from New Zealand on behalf of Mr George Rangi, has not been called to give evidence. He is referred to quite extensively in the examination transcripts of George Rangi and to an extent Lillian Rangi and also Glenda Rangi, but he has not been brought to court to support the evidence which has been given in that respect. He lives here in Sydney and the evidence discloses that. He is an available witness who has not been called and a comment is available and of course made, that there has to be reasons for that. You are left only with the evidence that is given by the Rangis." 64 Later on 27 February 2003 (transcript 281) Mr Healey, who appeared for the defendants, in the course of submissions said: "Might I digress for a moment. There was no evidence brought by Mr Norris in relation to the bringing of monies into Australia. The transcript of the hearing before the Registrar on 7 May 1999 commences at page 85." 65 Mr Temby said: "It is not in evidence. It didn't include the transcript of Mr Norris' evidence. It is not before you." 66 Mr Healey then said: "I beg your pardon, I thought the whole of the transcript was before you. That is my mistake if that is the case. I have not checked that. If that be the case that would be a gross unfairness because there is an explanation provided and that should be before you." 67 The Judge said he would entertain an application to re-open. Mr Healey asked if he could leave that to the end. No such application was made and the trial Judge reserved his decision on 27 February 2003. 68 I am not persuaded that on the evidence before the trial Judge there was any error in the findings he made nor am I persuaded that the defendants were denied any opportunity to put before the Court any evidence they wished to rely upon. 69 I am not persuaded that the projected appeal by the defendants against the judgment of Shaw J of 17 March 2003 had any real prospects of success and would accordingly reject the application for leave to appeal.

The result 70 The overall result is that the Crime Commission has succeeded in demonstrating a relatively small error in the calculation made by Shaw J in assessing the value of the proceeds derived from the illegal activities pursuant to s27 of the Act. We were informed that the Crime Commission applied to the Judge to correct this error but he decided not to do so. While ordinarily demonstration of such an error might not attract leave, in the circumstance that it was brought to the attention of the trial Judge and in the circumstance of the ventilation of all issues between the parties in this Court on the basis that there be a concurrent hearing of the leave applications and any appeal if leave was granted, I think it appropriate that the Crime Commission be granted leave to cross-appeal on that limited ground and that the appeal be upheld and the value of the proceeds adjusted accordingly.

CA 40108/03 1. Crime Commission's application for leave to appeal allowed. 2. Appeal dismissed with costs. 3. Defendants' application for leave to cross-appeal dismissed.

CA 40285/03 1. Extend the time for the defendants to apply for leave to appeal up to and including the date of the filing of the application. 2. Defendants' application for leave to appeal dismissed with costs.

CA 40284/03 1. Defendants' application for leave to appeal dismissed with costs. 2. Crime Commission's application for leave to cross-appeal allowed on ground 1 only, namely that his Honour erred in calculating the value of the proceeds derived from the illegal activities. 3. On that ground and to that extent appeal allowed. 4. Amend order 2 by substituting "for the amount of $96,000 the amount of $107,782". 5. No order as to costs. 72 SANTOW JA: I agree with Sheller JA. 73 TOBIAS JA: I agree with Sheller JA. *********

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