New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 27

27 Making of proceeds assessment order

(1) The Commission may apply to the Supreme Court for 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 by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A).

(2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the 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 a proceeds assessment order against a person who is 18 years or older if the Court finds it more probable than not that:

(a) the person derived proceeds from an illegal activity or illegal activities of another person, and

(b) the person knew or ought reasonably to have known that the proceeds were derived from an illegal activity or illegal activities of another person, and

(c) the other person was, at any time not more than 6 years before the making of the application for the order, engaged in:

(i) a serious crime related activity involving an indictable quantity, or

(ii) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

(2B) The Supreme Court may not make a proceeds assessment order in an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside this State (including outside Australia) in relation to the proceeds of the external serious crime related activity.

(2C) For the purposes of subsection (2B), an affidavit by an authorised officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside this State (including outside Australia) against any interests in property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

(3) A finding of the Court for the purposes of subsection (2) or (2A) 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.

(4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section.

(4A) The reference in subsection (2A) to a period of 6 years includes a reference to a period that began before the commencement of that subsection.

(5) The quashing or setting aside of a conviction for a serious crime related activity does not affect the validity of a proceeds assessment order.

(6) The making of a proceeds assessment order does not prevent the making under Division 1 of an assets forfeiture order based on the serious crime related activity, or on all or any of the serious crime related activities, in relation to which the proceeds assessment order is made.

(7) The amount a person is required to pay under a proceeds assessment order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.

(8) If an order under this section is made against a dead person, subsection (7) has effect before final distribution of the estate as if the person had died the day after the making of the order.

(9) The net amount recovered under a proceeds assessment order is to be paid to the Treasurer and credited to the Proceeds Account.

(10) Notice of an application under this section is to be given to the person against whom the order is sought and any other person required by the regulations to be given notice.

(11) The absence of a person entitled to be given notice of a proceeds assessment order does not prevent the Court from making the order.

(12) The Supreme Court may, when it makes a proceeds assessment order at any later time, make any ancillary orders that the Court considers appropriate.