Assets forfeiture order

An assets forfeiture order is an order allowing the State to confiscate and dispose of property. Normally, such property will already be subject to a restraining order.

When Can an Application for Assets Forfeiture be made?

Normally an application for an assets forfeiture order will relate to property already subject to a restraining order. However, an assets forfeiture order may be made whether or not a restraining order has previously been made.

An application for an assets forfeiture order must be made to the Supreme Court within 6 years of the alleged serious criminal activity.

The Asset Forfeiture Process

Once an application has been made to the court for an assets forfeiture order, written notice of the application must be given to any person affected by the application. An assets forfeiture order can only be granted after a hearing in court. A person claiming an interest in the property may appear and adduce evidence at the hearing. Failure to do so may result in orders being made in the person’s absence.

What does the Crown have to Prove?

The court must be satisfied on the balance of probabilities that the person was engaged in a serious criminal activity within the 6 years before the application is made.

However, the court does not need to find that any particular offence was committed, nor that the assets named in the application derived from the alleged criminal activity.

What Happens if an Assets Forfeiture Order is made?

On an assets forfeiture order taking effect the property is forfeited to the Crown. The NSW Trustee and Guardian may take possession of the property on behalf of the Crown, if it has not already done so.

A person must not dispose of or interfere with property that is the subject of an assets forfeiture order. A person who does is guilty of an offence, punishable by a fine equivalent to the value of the property (as determined by the Supreme Court) and/or by imprisonment for a period of up to 2 years.

If an assets forfeiture order is made, the person against whom the order is made may apply for an exclusion order. The dependants or spouse of a person against whom an assets forfeiture order is made may apply for relief against forfeiture.

Potential Defences

A person who a restraining order is made against may file an application for an exclusion order, which may exclude some or all of the property from the order. The court must be satisfied on the balance of probabilities that the interest in question was not illegally or fraudulently obtained.

An exclusion order may be made before an assets forfeiture order is made (i.e. when the application for the assets forfeiture order is made). However, after the assets forfeiture order has been made, any application for an exclusion order can only be lodged within 6 months of when the order took effect, and only with leave of the Supreme Court.

Relief Against forfeiture

The dependants and spouse of a person who an assets forfeiture order is made against may apply to the Supreme Court for relief against forfeiture. The court must be satisfied that:

• The applicants will suffer hardship as a result of the assets forfeiture order; and
• That the applicants had no knowledge of any serious criminal related activities or illegal activities of the person subject to the asset forfeiture order.

Seek Legal Advice

If you have been given written notice of an assets forfeiture order application, it is essential that you seek legal advice immediately, attend the hearing and give evidence. If you are able to prove the source of funds used to acquire the property named in the application, the court has the discretion not to grant the assets forfeiture order.