New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 42L

42L Confirmation of freezing notices

(1) An appropriate court may, on an application under section 42I or 42K:

(a) confirm the freezing notice (with or without variation), or

(b) set aside the freezing notice.

(2) An appropriate court may confirm a freezing notice if it is satisfied that:

(a) the application is supported by an affidavit by an authorised officer that complies with this section, and

(b) having regard to the matters contained in the affidavit or other evidence given in the proceedings, there are reasonable grounds to believe the matters set out in the affidavit, and

(c) proceedings have been commenced against the defendant for a serious offence or the defendant has been convicted of a serious offence, and

(d) the property concerned is not affected by a restraining order, or an application for a restraining order under this Act or the Criminal Assets Recovery Act 1990 , and

(e) it is appropriate in the circumstances to confirm the notice.

(3) The affidavit of the authorised officer supporting the application must set out the officer’s belief, and the grounds for the belief, that the defendant committed the serious offence concerned (including details of any conviction) and as to one or more of the following in relation to property the subject of the freezing notice:

(a) in the case of property of the defendant, that the property is tainted property in relation to the offence or the defendant derived benefits because of having committed the offence or the property is the defendant’s proceeds of drug trafficking,

(b) in the case of property of a person other than the defendant, that:

(i) the property is tainted property in relation to the offence or is the defendant’s proceeds of drug trafficking, or

(ii) the property is subject to the effective control of the defendant and the defendant has derived a benefit, directly or indirectly, from the commission of the serious offence.

(4) In determining whether there are reasonable grounds to believe that property is in the effective control of the defendant, the appropriate court must have regard to the matters referred to in section 10.

(5) The appropriate court must make orders of a kind referred to in section 42M in relation to property to which a freezing notice applies if it confirms the freezing notice. Any such order is taken, for the purposes of this Act, to be included in the terms of the freezing notice.

(6) If evidence is given at the hearing that property to which the application relates was in the possession of the defendant at or immediately after the commission of the offence:

(a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence-the court must presume that the property was used in, or in connection with, the commission of the offence, or

(b) in any other case-the court must not confirm a freezing notice in relation to the property unless it is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence.