New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 22

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 all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect.

(1A) An application may be made under subsection (1) before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted.

(2) The Supreme Court must make an assets forfeiture order 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 restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, 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.

(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).

(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 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.