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[2025] NSWSC 1583
General information, not legal advice.
Supreme Court of NSW
2025-12-19
McGuire J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Crime Commission v Kenny [2025] NSWSC 1583
Hearing dates: 12 November 2025
Date of orders: 12 November 2025
Decision date: 19 December 2025
Jurisdiction: Common Law
Before: McGuire J
Decision: (1) Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005, judgment for the Plaintiff on its claim for an order pursuant to section 22 of the Criminal Assets Recovery Act 1990 that the interest in property of Raphael Roy Kenny in the property specified in the Schedule hereto and any interest accrued thereon (being an interest in property of Raphael Roy Kenny, suspected by an authorised officer for the purposes of the Criminal Assets Recovery Act 1990, of being an available interest relating to serious crime use property within the meaning of “serious crime use property” as defined in section 9B of the Criminal Assets Recovery Act 1990) be forfeited to, and vest in, the Crown. (2) The balance of the Summons is dismissed and all future of these proceedings are vacated. (3) The Plaintiff and the Raphael Roy Kenny pay their own costs.
Catchwords: CIVIL – Criminal Assets Recovery Act 1990 (NSW) – application for summary judgment – forfeiture orders under s 22 – whether interests in property available interests for the purposes of the Act – whether property “used in, or in connection with” the serious crime related activity of the defendant – property seized cash reasonably suspected to be proceeds of crime – order that property be forfeited to and vest in the Crown
Legislation Cited: Crimes Act 1900 (NSW), s 903C
Criminal Assets Recovery Act 1990 (NSW), ss 3, 4, 6, 7, 9B, 10A, 22
Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited: New South Wales Crime Commission v Hitchen [2025] NSWSC 1268
Texts Cited: N/A
Category: Principal judgment
Parties: New South Wales Crime Commission (Plaintiff)
Raphael Roy Kenny (Defendant) (Self-represented)
Representation: Solicitors:
S Askew (Plaintiff)
No appearance (Defendant)
File Number(s): 2023/00068561
Publication restriction: N/A
By notice of motion filed on 30 September 2025, the plaintiff, the New South Wales Crime Commission, applied for summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in respect of its claim for an order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) in relation to the interest in specified property of the defendant, Raphael Roy Kenny.
The matter was listed before me as Common Law Duty Judge and on 12 November 2025 orders were made in accordance with the notice of motion and schedule thereto, noting that reasons for the making of those orders would be provided in due course. What follows are my reasons for making the orders.
The proceedings were commenced by summons filed on 1 March 2023. The plaintiff sought, inter alia, a restraining order under s 10A of the CAR Act in respect of all interests in property of the defendant. This order was sought on the basis that the defendant was suspected by an authorised officer within the meaning of s 4(1) of the CAR Act to have engaged in “serious crime related activity” as defined by s 6(2) of the CAR Act including, relevantly, dealing with property reasonably suspected to be proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW).
The restraining order was granted in relation to all interests in property of the defendant, including the defendant’s interest in two sums of seized cash specified in the Schedule attached to the summons, suspected to constitute the proceeds of crime. The summons also contained an application for asset forfeiture orders under s 22 of the CAR Act in relation to the interest in property of the defendant in those suspected proceeds of crime. By the notice of motion the plaintiff sought orders for:
(a) default judgment in relation to the asset forfeiture aspect of the summons, contending that the interests in property of the sums of seized cash specified in the Schedule are “available interest[s] relating to serious crime use property” for the purposes of ss 9B and 22(2B) of the CAR Act; and (b) the balance of the summons, comprising an application for a proceeds assessment order under s 27 of the CAR Act and an unexplained wealth order under s 28A, be dismissed.
13.1 Summary judgment
(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief--
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
(2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.
(3) In this rule, a reference to ”damages” includes a reference to the value of goods.
3 Principal objects
The principal objects of this Act are—
(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and
(a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion of one or more of the following, unless the person can establish the wealth was lawfully acquired—
(i) the person has engaged in a serious crime related activity,
(ii) the person has acquired proceeds from the serious crime related activity of another person,
(iii) the person’s current or previous wealth significantly exceeds the value of the person’s lawfully acquired wealth, and
(b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and
(b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and
(c) to enable law enforcement authorities effectively to identify and recover property.
22 Making of assets forfeiture order
(1) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown specified interests, a specified class of interests or all the interests, in property of a person (an assets forfeiture order).
(1A) The application must specify that the interest in property is an interest in property of any one or more of the following kinds—
(a) an interest in property of a person suspected by an authorised officer, at the time of the application, of having engaged in a serious crime related activity or serious crime related activities,
(b) an interest in property suspected by an authorised officer, at the time of the application, of being serious crime derived property because of a serious crime related activity or serious crime related activities of a person,
(c) an interest in property held in a false name that is suspected by an authorised officer, at the time of the application, to be fraudulently acquired property that is illegally acquired property,
(d) an interest in property suspected by an authorised officer, at the time of the application, of being—
(i) an available interest relating to serious crime use property, or
(ii) an interest that is capable of being the subject of a substituted serious crime use property declaration in relation to the serious crime related activity concerned.
(1B) An assets forfeiture order may be made whether or not an application for a restraining order relating to the interests in property the subject of the application for the assets forfeiture order has been made or granted.
(2) The Supreme Court must make an assets forfeiture order in respect of an interest in property referred to in subsection (1A) (a) or (b) if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the application for the assets forfeiture order was, at any time not more than 6 years before the making of the application, engaged in—
(a) a serious crime related activity involving an indictable quantity, or
(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.
(2A) The Supreme Court must make an assets forfeiture order if the Court finds it more probable than not that interests in property subject to an application are fraudulently acquired property that is also illegally acquired property.
(2B) The Supreme Court must make an assets forfeiture order in respect of an interest in property if the Court finds it more probable than not that the interest is an available interest relating to serious crime use property.
(3) A finding of the Court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based—
(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or
(b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity.
(3A) A finding of the Supreme Court for the purposes of subsection (2A) need not be based on a particular finding as to the commission of a particular offence and can be based on a finding that some offence or other constituting illegal activity was committed.
(4) When an assets forfeiture order is made it must be made so as to apply to specified interests in property.
(5) The reference in subsection (2) to a period of 6 years includes a reference to a period that began before the commencement of this section.
(6) The raising of a doubt as to whether a person engaged in a serious crime related activity or whether a quantity is an indictable quantity is not of itself sufficient to avoid a finding by the Supreme Court under subsection (2).
(6A) The raising of a doubt as to whether a person engaged in an illegal activity is not of itself sufficient to avoid a finding by the Supreme Court under subsection (2A) or (2B).
(7) The quashing or setting aside of a conviction for a serious crime related activity or illegal activity does not affect the validity of an assets forfeiture order that was made before or after the conviction was quashed or set aside and was based on the activity.
(8) The making of an assets forfeiture order does not prevent the making of a proceeds assessment order or unexplained wealth order under Division 2 which assesses the value of the proceeds of, or is based on, the serious crime related activity or illegal activity on which the assets forfeiture order was based.
(9) Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application.
(10) The absence of a person entitled to be given notice of an application for an assets forfeiture order does not prevent the Court from making the order.
9B Meaning of “serious crime use property” and “available interest relating to serious crime use property”
(1) In this Act, a reference to serious crime use property is a reference to property that was used in, or in connection with, a serious crime related activity.
(2) In this Act, an interest in property is an available interest relating to serious crime use property if—
(a) the interest is an interest of a person who has engaged in serious crime related activity (the offender), and
(b) the offender’s activity resulted in the property, or any other property, becoming serious crime use property for the purposes of this Act, and
(c) the property is either the serious crime use property or, if that property is not available for forfeiture as referred to in subsection (3), any other property that is the subject of a substituted serious crime use property declaration.
(3) Serious crime use property is not available for forfeiture if—
(a) the offender does not own, and does not have effective control of, the property, or
(b) the property has been sold or otherwise disposed of or cannot be found for any other reason.
Meaning of “interest in property”
(1) In this Act, a reference to an interest of a person in property is a reference to—
(a) an interest the person has in real or personal property, or
(b) a chose in action enforceable at the suit of the person, or
(c) an interest of the person that is within a class of interests prescribed as interests in property for the purposes of this Act.
(2) Without limiting the generality of subsection (1), a reference in this Act to an interest of a person in property includes a reference to—
(a) the person’s money, and
(b) an interest that the person has in the goodwill of a business, and
(c) an interest that the person has in a licence required to be held in order to carry on a business.
(2A) A reference in this Act to an interest of a person in property includes a reference to an interest of a person in property situated outside New South Wales (including outside Australia).
(3) For the purposes of this Act, if—
(a) but for this subsection, a person would have an interest in property as provided by subsection (1), and
(b) the interest is subject to the effective control of another person,
the interest is an interest of the person who has effective control and is not an interest of the person referred to in paragraph (a).
(4) In this section—
interest, in relation to property, means—
(a) a legal or equitable estate or interest in the property, or
(b) a right, power or privilege in connection with the property,
whether present or future and whether vested or contingent.
6 Meaning of “serious crime related activity”
(1) In this Act, a reference 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—
(a) has been tried, or
(b) has been tried and acquitted, or
(c) has been convicted (even if the conviction has been quashed or set aside).
(2) In this section—
…
serious criminal offence means the following offences—
… (d) an offence punishable by imprisonment for 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another person, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide,
The defendant was provided with notice of the application as required by s 22(9) of the CAR Act. Despite being given notice, the defendant did not appear at the hearing of the notice of motion. His appearance is not necessary for the making of an asset forfeiture order: s 22(10).
The plaintiff read and relied on the affidavit of Nigel Mark Robinson affirmed on 30 September 2025 in support of the application for summary judgment. Written submissions for the plaintiff dated 6 November 2025 were provided. The plaintiff contends that Mr Robinson’s affidavit provides evidence of the facts on which the claim for an assets forfeiture order is based as required by r 13.1(1)(a) of the UCPR.
Mr Robinson is a Senior Forensic Accountant with the New South Wales Crime Commission and an authorised officer within the class of persons defined in s 4(1) of the CAR Act. He deposes to his belief that the interest in property of the defendant in the seized cash specified in the Schedule to his affidavit is an “available interest relating to serious crime use property” within the meaning of s 9B of the CAR Act, enlivening the Court’s obligation under s 22(2B) to make an asset forfeiture order if it is found to be more probable than not that this is the case.
Mr Robinson deposes to his belief that at a time not more than 6 years before the making of the application, the defendant engaged in serious crime related activity, namely, dealing with property reasonably suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act, an offence punishable by imprisonment for 5 years and involving money laundering, thereby falling within subsection (d) of the definition of a serious criminal offence contained in s 6(2) of the CAR Act.
That belief is based on a certificate of conviction in relation to the defendant dated 28 June 2024 recording one count of dealing with property suspected of being the proceeds of crime contrary to s 193C(1), namely $150,000 in cash seized by NSW Police from the defendant’s residence during the execution of a search warrant, and one count on a form one of dealing with property suspected of being the proceeds of crime contrary to s 193C(2), namely $4,800 in cash seized from the defendant’s vehicle during the search of a car registered in the defendant’s name.
As a result of this conviction, the defendant was sentenced in the District Court to an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 9 months, to commence on 24 November 2022.
The plaintiff submits that this conviction renders it self-evident that the defendant has engaged in serious crime related activity as required by s 9B(2)(a) of the CAR Act.
The plaintiff further submits, relying on Mr Robinson’s affidavit and the agreed facts of the conviction referred to, that for the purposes of ss 9B(1) and 9B(2)(b) of the CAR Act, the seized cash was used in or in connection with a serious crime related activity and it was the defendant’s serious crime related activity (namely, the activity which resulted in his conviction) that resulted in the seized cash becoming serious crime use property. Since the conviction relates to dealing with suspected proceeds of crime, being the seized cash specified in the Schedule to the plaintiff’s motion, the connection between the property and the serious crime related activity is clear, along with the defendant’s conduct that resulted in the seized cash becoming serious crime use property.
The plaintiff further submits that Mr Robinson’s affidavit establishes that the seized cash is an interest in property of the defendant for the purposes of s 9B(3) and as defined by s 7 of the CAR Act. It is submitted that since the $4,800 in cash was seized from a vehicle registered in the defendant’s name and being driven by him at the time of his arrest, and the $150,000 in cash was located inside the defendant’s locked bedroom at his residence in Canberra, it can be said that the defendant held at least a “possessory interest” in the seized cash at the time of his arrest.
The plaintiff accordingly submits that the defendant has no defence to the plaintiff’s claim for an asset forfeiture order under s 22 of the CAR Act, and that the Court would be satisfied that the seized cash is an available interest relating to serious crime use property. The Court being so satisfied, it must make an assets forfeiture order in respect of the seized cash: s 22(2B).
For the purposes of r 13.1 of the UCPR, Mr Robinson is a “responsible person”as required by r 13.1(1)(b), being an authorised officer within the class of persons defined in s 4(1) of the CAR Act, giving evidence as to his belief that the defendant has no defence to the plaintiff’s application under s 22. This belief results from the foregoing evidence and the “administrative nature” of the order sought.
The supporting affidavit material establishes that a proper basis exists for an order for summary judgment under r 13.1 of the UCPR.
The affidavit provides evidence of the facts upon which the summary judgment application is based. The application for summary judgment relates to the two sums of seized cash, which was the same cash which formed the basis of the convictions. The conviction for the offence contrary to s 193C(1) related to $150,000 in cash seized from the defendant’s residence. The conviction for the offence contrary to s 193C(2) related to $4,800 in cash seized from the defendant’s motor vehicle.
I accept the evidence contained in the supporting affidavit that the deponent, a senior forensic accountant employed by the New South Wales Crime Commission, has the belief that the defendant has no defence to the claim relating to the seized cash.
I am also satisfied on the evidence that the two quantities of seized cash are available interests relating to serious crime use property for the purposes of s 9B and s 22(2B) of the CAR Act.
In New South Wales Crime Commission v Hitchen [2025] NSWSC 1268 Wright J observed that the term “used in, or in connection with, a serious crime related activity” required a connection which would make mandatory forfeiture in the relevant interest appropriate and justified having regard to the scope and purpose of the CAR Act. His Honour held that that broad purpose did not require the “connection” with the relevant activity to be “substantial”: at [105].
I have taken into account the scope and principal objects of the CAR Act as set out in s 3 in considering the nature of the “connection”.
The defendant’s convictions of the offences, which carried maximum penalties of 5 years imprisonment, fall within the definition of a serious criminal offence in s 6(2) of the CAR Act.
The seized cash was used in, or in connection with, a serious crime related activity and that was the defendant’s serious crime related activity. Here the defendant’s conviction for the money laundering offences was the activity that resulted in the seized cash becoming serious crime use property. It was the defendant’s conduct in possessing the cash which formed the basis of the conviction and establishes the connection between his activity in possessing the cash and the serious crime related activity involved.
The evidence establishes that the amount of $4,800 was found in and seized from a motor vehicle registered in the defendant’s name and which was driven by him at the time of his arrest. The amount of $150,000 was found in and seized from the defendant’s residence in a locked bedroom. That evidence establishes that the cash seized is a relevant interest in property of the defendant for the purposes of s 9B(3) of the CAR Act.
I accept and agree with the belief of the deponent that the defendant has no defence to the plaintiff’s claim.
The seized cash is an available interest relating to serious crime use property. Accordingly, pursuant to s 22(2B) of the CAR Act, the Court must make the assets forfeiture order in respect of the cash.
The orders sought in the balance of the summons relate to a proceeds assessment order and an unexplained wealth order. I am satisfied that the evidence establishes that the defendant’s only interest in property was his interest in the seized cash. In those circumstances any further remedies under the CAR Act are unavailable, inappropriate or unnecessary. Accordingly the balance of the summons is to be dismissed.
For the reasons expressed above on 12 November 2025 I made the following orders:
Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005, judgment for the Plaintiff on its claim for an order pursuant to section 22 of the Criminal Assets Recovery Act 1990 that the interest in property of Raphael Roy Kenny in the property specified in the Schedule hereto and any interest accrued thereon (being an interest in property of Raphael Roy Kenny, suspected by an authorised officer for the purposes of the Criminal Assets Recovery Act 1990, of being an available interest relating to serious crime use property within the meaning of “serious crime use property” as defined in section 9B of the Criminal Assets Recovery Act 1990) be forfeited to, and vest in, the Crown.
The balance of the Summons is dismissed and all future of these proceedings are vacated.
The Plaintiff and the Raphael Roy Kenny pay their own costs.
Note: The relevant assets the operation of order 1 are those in paras 1 and 2 of the schedule attached to the notice of motion and as follows:
SCHEDULE 1. Cash in the approximate amount of $150,000 seized by members of the NSW Police Force on 24 November 2022 during the execution of a search warrant at 10 Mary Kitsman Street, Watson ACT 2602, and currently held trust by the NSW Trustee and Guardian pursuant to orders made in these proceedings. 2. Cash in the approximate amount of $4,800 seized by members of the NSW Police Force on 24 November 2022 during the search of 2015 Mitsubishi Lancer with ACT registration YKM94X, registered at the time in the name of Raphael Roy Kenny, currently held on trust by the NSW Trustee and Guardian pursuant to orders made in these proceedings.
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New South Wales Crime Commission
Kenny [2025] NSWSC 1583