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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

CDPP - forfeiture order


A forfeiture order is an order allowing the Commonwealth to confiscate and dispose of property.

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.

What does the Crown have to prove?

A forfeiture order may be made:

  • in respect of property that has been the subject of a restraining order if the court is satisfied that the person was involved in a serious offence within the past 6 years, unless the defendant can show that the property in question has not been derived from criminal activity;
  • if a person has been convicted of an indictable offence and the court is satisfied that the property specified in the order is proceeds of the offence.

What happens if a forfeiture order is made?

If the Court makes a forfeiture order in respect of property:

  • The Commonwealth may take possession of the property, if it has not done so already.
  • The Commonwealth may, after a certain period of time, dispose of the 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 no appeal is lodged against either (1) the conviction of the serious offence, or (2) the forfeiture order, the property cannot be disposed of until the end of the period given to appeal the conviction or the forfeiture order.
  • If an appeal is lodged against either (1) the conviction of the serious offence, or (2) the forfeiture order, the property cannot be disposed of until the determination of the appeal.

If a forfeiture order is made, the person against whom a forfeiture order is made may apply for an exclusion order. Certain dependents of the person may also be able to receive relief against forfeiture.

Exclusion order

A person against whom a forfeiture order is made 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.

Relief against forfeiture

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:

  • the forfeiture order would cause hardship to the dependent; and
  • the specified amount would relieve that hardship; and
  • the dependent had no knowledge of the person’s conduct that is the subject of the forfeiture order.

Appeals

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.

Seek Legal Advice

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 drug offences. 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.

For advice or representation in any legal matter, please contact Armstrong Legal.

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