New South Wales Crime Commission v Kenny

1. [1]

   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.

2. [2]

   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.

Background

1. [3]

   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).

2. [4]

   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:

3. [5]

   The making of the orders sought in the notice of motion will finalise the proceedings.

Relevant legislation

1. [6]

   The power to order summary judgment is contained in r 13.1 of the UCPR which provides:

2. [7]

   The objects of the CAR Act are contained in s 3 of that Act:

3. [8]

   Section 22 of the CAR Act oversees the making of the order sought by the plaintiff and provides as follows:

4. [9]

   An “available interest relating to serious crime use property” is defined in s 9B as follows:

5. [10]

   The meaning of “interest in property” is contained in s 7 which provides:

6. [11]

   The meaning of “serious crime related activity” is contained in s 6 of the CAR Act which provides, relevantly:

The application

1. [12]

   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).

2. [13]

   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.

3. [14]

   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.

4. [15]

   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.

5. [16]

   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.

6. [17]

   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.

7. [18]

   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.

8. [19]

   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.

9. [20]

   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.

10. [21]

    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).

11. [22]

    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.

Consideration

1. [23]

   The supporting affidavit material establishes that a proper basis exists for an order for summary judgment under r 13.1 of the UCPR.

2. [24]

   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.

3. [25]

   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.

4. [26]

   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.

5. [27]

   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].

6. [28]

   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”.

7. [29]

   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.

8. [30]

   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.

9. [31]

   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.

10. [32]

    I accept and agree with the belief of the deponent that the defendant has no defence to the plaintiff’s claim.

11. [33]

    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.

12. [34]

    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.

Orders

1. [35]

   For the reasons expressed above on 12 November 2025 I made the following orders:

   1. (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. (2)

      The balance of the Summons is dismissed and all future of these proceedings are vacated.

   3. (3)

      The Plaintiff and the Raphael Roy Kenny pay their own costs.

   4. (4)

      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: