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Sydney: (02) 9261 4555
The application must generally be made to the court that imposed the conviction within 6 months of the date of the conviction. Applications after 6 months are only allowed with the leave of the Supreme Court.
If a person has been convicted of a serious offence and it is likely that an application will be made to the court for a serious offence, an application can be made, for an in respect of the property.
If the court is satisfied that a forfeiture order might be made, it can order that the property listed in the application is not to be disposed of except in such manner as is specified in the order.
Once an application has been made to the court for a forfeiture order, written notice of the application must be given to any person believed to have an interest in the property. A forfeiture order can only be granted after a hearing in court. Any person claiming an interest in the property can appear and give 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 can only be granted if the court is satisfied on the balance of probabilities that the property is tainted property.
Tainted property means property that was:
A serious offence includes any offence against the laws of NSW that may be prosecuted on indictment.
If the court makes a forfeiture order:
Once a forfeiture order is made, the State is not allowed to dispose of the property straight away.
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 order.
If a court makes a forfeiture order in respect of property, an innocent third party ("the applicant") who claims an interest in the property may, within 6 months of the forfeiture order being made, apply to the court to have the order set aside as it applies to their interest.
The court must be satisfied on the balance probabilities that:
A production order requires a person to produce or make available for inspection any property-tracking documents that are in their possession or control. A production order must specify the time, place and to whom the documents are to be produced.
The fact that the documents may be incriminating, or that the production would breach an obligation of the person not to disclose the existence or content of the document, does not excuse the person from having to comply with the order.
Failing to comply with the production order is an offence carrying a maximum penalty of two years imprisonment and/or 100 penalty units (or 500 penalty units for a corporation).
If you have been given written notice of an application for a it is essential that you seek legal advice immediately and attend the hearing.
If you are able to show the court the normal and intended use of the asset and/or demonstrate any hardship that may arise if the order is made, the court has the discretion not to grant the 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.