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Once an application has been made to the court for a forfeiture order, written notice of the application must be given to the defendant and any other person believed to have an interest in the property. A forfeiture order can only be granted after a hearing in court. Both the defendant and any other person claiming an interest in the property may appear and adduce evidence at the hearing. In the absence of contradictory evidence the court will presume that the property was used in, or in connection with, the commission of the offence.
A forfeiture order may be made:
If the Court makes a forfeiture order in respect of property:
A person must not dispose of or otherwise interfere with an interest in property that is the subject of a forfeiture order. A person who does is guilty of an offence punishable by a fine of up to 300 penalty units and/or imprisonment for up to 5 years.
Once a forfeiture order is made the property cannot be disposed of straight away.
If a forfeiture order is made, the person who a forfeiture order is made against may apply for an exclusion order. Certain dependents of the person may also be able to receive relief against forfeiture.
A person who a forfeiture order is made against may file an application for an exclusion order, which is an order to exclude some or all of the property from the forfeiture order. The applicant must satisfy the court that their interest in the property is not the proceeds of unlawful activity.
An exclusion order may be made at any time before an assets forfeiture order is made. However, unless the court gives leave, the person cannot apply for an exclusion order if he or she either was notified of the application for the forfeiture, but did not appear at the hearing of that application, or if the person appeared at the hearing of that application.
If the court makes a forfeiture order another order must be also made directing the Commonwealth to pay a specified amount to a dependent of the person if:
An appeal can be lodged against the making of a forfeiture order by any person who has an interest in the property. An appeal must be lodged within 28 days of the making of the forfeiture order.
If you have been given written notice of a forfeiture order application it is essential that you seek legal advice immediately, attend the hearing and give evidence. If you are able to show the court the normal and intended use of the asset and/or demonstrate any hardship that may reasonably be likely to arise if the order is made, the court has the discretion not to grant the forfeiture order.
Example: X borrowed his father’s car and used it in the commission of a number of drug offences. The NSW Police sought a forfeiture order in relation to the car. X was able to show that the car was not solely his, but he had borrowed it from his father, who was unaware of the drug offences. The court accepted that the normal and intended use of the car was to transport X’s younger siblings to and from school and for his father to get to work, and that hardship would arise to the family should the forfeiture order be granted. The court used its discretion and refused to grant the forfeiture order.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.