New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 41

41 Return of seized property

(1) If:

(a) property has been seized pursuant to a warrant issued under this Part, and

(b) at the time when the property was seized, a person has not been charged with the relevant serious offence, and

(c) before the expiration of 7 days after the property was seized, a person has not been charged with that offence,

then, unless an application for a forfeiture order is made in respect of the property, the Commissioner of Police shall arrange for the property to be returned, at the expiration of that period, to the person from whose possession it was seized.

(2) If:

(a) property has been seized pursuant to a warrant issued under this Part, and

(b) either before the property was seized, or after it was seized but before the expiration of 7 days after it was seized, criminal proceedings have been commenced in respect of the relevant serious offence,

then, unless an application for a forfeiture order is made in respect of the property, the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized:

(c) if the person is convicted of the offence-at the expiration of 6 months after the relevant time, or

(d) if the person is discharged or acquitted of the offence-as soon as possible after the relevant time.

(3) If:

(a) property has been seized pursuant to a warrant issued under this Part, and

(b) a court having jurisdiction to do so refuses to make a forfeiture order in respect of the property in relation to the relevant serious offence,

the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as possible after the relevant time.

(4) Where property has been seized pursuant to a warrant under this Part, a person from whose possession the property was seized may apply to an appropriate court for an order under subsection (5).

(5) If the court is satisfied that neither it nor any other court having jurisdiction to do so would make a forfeiture order in respect of the property, the court may make an order:

(a) directing that the property be returned to the person from whose possession it was seized, or

(b) directing that the person be allowed access to the property,

on such terms and conditions (if any) as the court thinks fit.

(6) A person who applies to a court for an order under subsection (5) shall give notice, as prescribed by the regulations or by rules of court, of the making of the application and of the date, time and place fixed for the hearing of the application.

(7) A reference in this section to a person from whose possession property was seized includes a reference to any person who is entitled to the property.

(8) A reference in this section to the relevant time is a reference to:

(a) subject to paragraph (b), the date of the conviction, discharge or acquittal, or of the refusal to make the forfeiture order, as the case requires, or

(b) if there is a right of appeal:

(i) where the period provided for the lodging of the appeal has expired without such an appeal having been lodged-the expiration of that period, or

(ii) where an appeal has been lodged-the time when the appeal lapses or is finally determined.