New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 26

26 Exclusion of the value of innocent interests from assets forfeiture order

(1) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order is not attributable to the proceeds of an illegal activity, the Supreme Court may--

(a) make a declaration to that effect, and

(b) order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration.

(1A) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order on the ground that it was fraudulently acquired property was not fraudulently acquired property or is not attributable to the proceeds of an illegal activity, the Supreme Court may--

(a) make a declaration to that effect, and

(b) order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration.

(2) A declaration that an interest in property is not attributable to the proceeds of an illegal activity is to be made on the basis of the extent to which the interest in property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.

(3) The Supreme Court may make a declaration and order under this section in relation to an interest in property on the application of the person whose interest it was when forfeited under an assets forfeiture order.

(3A) Despite subsections (1)-(3), the Supreme Court is not to make a declaration or order under this section if the Supreme Court finds that it is more probable than not that the property to which the assets forfeiture order relates is serious crime use property or an interest in property that is capable of being the subject of a substituted serious crime use property declaration.

(4) After an assets forfeiture order has been made, an application for an order under this section may not be made by a person--

(a) if the person was given notice of the proceedings that led to the assets forfeiture order--unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court, or

(b) in any other case--unless it is made within 6 months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time.

(5) Notice of an application for an order under this section is to be given to the Commission and any other person required by the regulations to be given notice and a person entitled to be given notice may appear, and adduce evidence, at the hearing of the application.

(6) The applicant for an order under this section must give the Commission notice of the grounds on which the order is sought.

(7) If the Commission proposes to contest an application for an order under this section it must give the applicant notice of the grounds on which the application is to be contested.