New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 42C

42C Issue of freezing notices

(1) An authorised justice may issue a freezing notice if satisfied that--

(a) the defendant is likely to be charged with the offence or a related offence within 48 hours or has been charged with or convicted of a serious offence, and

(b) there are reasonable grounds for the belief of the officer as to the matters set out in subsection (2) (c) and (d) (i) or (e) (i) or (ii) (if applicable).

(2) An authorised justice must not issue a freezing notice unless--

(a) the application includes details of the authority of the applicant to make the application, and

(b) the application includes the grounds on which the notice is being sought, and

(c) the application is supported by a statement by the applicant that the applicant believes that the defendant has committed a serious offence, if the defendant has not been convicted of the offence, and

(d) in the case of property of the defendant, the application is supported by a statement by the applicant--

(i) that the applicant believes that the property to which the application relates is tainted property or substitutable tainted property in relation to that offence or the defendant derived benefits because of having committed the offence or, if the offence is a drug trafficking offence, the property is the defendant's proceeds of drug trafficking, and

(ii) setting out the grounds on which the applicant holds those beliefs, and

(e) in the case of property of a person other than the defendant, the application is supported by a statement by the applicant that the applicant believes that--

(i) the property is tainted property in relation to the offence with which the defendant has been charged or convicted or is the defendant's proceeds of drug trafficking, or

(ii) the property is subject to the effective control of the defendant and the defendant has derived a benefit, directly or indirectly, from the commission of the offence,

and setting out the grounds on which the applicant holds those beliefs, and

(f) the statements and any other information given by the applicant in or in connection with the application are verified before the authorised justice on oath or affirmation or by affidavit.

(3) In determining whether there are reasonable grounds to believe that property is in the effective control of the defendant, the authorised justice may have regard to the matters referred to in section 10.

(4) A freezing notice may not be issued in respect of property affected by a restraining order or forfeiture order or the subject of an application for a restraining order or forfeiture order under this Act.

(5) A freezing notice under this Act and a restraining order under the Criminal Assets Recovery Act 1990 may not be made so as to be in force in respect of the same interest in property at the same time.

(6) The issue of a freezing notice is a ministerial function and is not a judicial function.