New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 18

18 Forfeiture orders

(1) If a person has been convicted of a serious offence and an application is made to a court under section 13 (1) (a) or (2) (a) in relation to specified property and--

(a) the court is satisfied that the property is tainted property in relation to the offence, and

(a1) if the application relates to property of the kind referred to in paragraph (d) of the definition of
"tainted property" in section 4 (1)--the court is satisfied that, having regard to subsection (1A), it is appropriate to treat the property as having been derived or realised by the defendant (or by a person at the request or by the direction of the defendant) because of the commission of a serious offence, and

(b) the court has taken into consideration (having regard to information before the court)--

(i) the use that is ordinarily or had been intended to be made of the property, and

(ii) any hardship that may reasonably be likely to arise (whether on the part of that or any other person) following the making of the order,

the court may order that the property is forfeited to the State.

(1A) In considering whether to treat property of the kind referred to in paragraph (d) of the definition of
"tainted property" in section 4 (1) as property derived or realised by the defendant (or by a person at the request or by the direction of the defendant) because of the commission of a serious offence, a court may have regard to any matter that it thinks fit, including--

(a) whether or not it is in the public interest to treat it as such property, and

(b) whether or not the depiction of the offence, or the expression of the defendant's thoughts, opinions or emotions regarding the offence, in the public promotion for which the property was derived or realised has any general social or educational value, and

(c) the nature and purposes of the public promotion for which the property was derived or realised, including its use for research, educational or rehabilitative purposes.

(2) In considering any hardship that may be likely to arise on the part of a person convicted of a serious offence, the court shall not take into account the sentence imposed in respect of the offence.

(2A) In considering any hardship reasonably likely to arise on the part of an Aboriginal person or a Torres Strait Islander convicted of a serious offence, the court must take into account responsibilities arising from the person's ties to extended family and kinship.

(3) If the court orders that property (other than money) is forfeited to the State, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.

(4) If, at the hearing of an application made under section 13 (1) (a) or (2) (a) in reliance on the conviction of a person for a serious offence, evidence is given that property to which the application relates was in the possession of the person at or immediately after the commission of the offence, then--

(a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence--the court shall presume that the property was used in, or in connection with, the commission of the offence, or

(b) in any other case--the court shall not make an order under this section in relation to the property unless it is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence.

(5) A court making a forfeiture order in respect of property may specify in the order the extent of the estate, interest or rights in the property that are affected by the order and, where the order is to apply to land, the court shall do so.