Western Australian Current Acts

CRIMINAL PROPERTY CONFISCATION ACT 2000 - SECT 22

22 .         Crime-used property substitution declarations, making

        (1)         On hearing an application under section 21, the court must declare that property owned by the respondent is available for confiscation instead of crime-used property if —

            (a)         the crime-used property is not available for confiscation as mentioned in subsection (2); and

            (b)         it is more likely than not that the respondent made criminal use of the crime-used property.

        (2)         For the purposes of subsection (1)(a), the crime-used property is not available for confiscation if —

            (a)         the respondent does not own, and does not have effective control of, the property; or

            (b)         where the property was or is owned or effectively controlled by the respondent, and was or is frozen — the freezing notice or freezing order has been or is to be set aside under section 82(3) in favour of the spouse, a de facto partner or a dependant of the respondent; or

            (c)         in any other case — the property has been sold or otherwise disposed of, or cannot be found for any other reason.

        (3)         If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.

        (4)         If the respondent has not been convicted of the relevant confiscation offence, but the applicant establishes that it is more likely than not that the crime-used property was in the respondent’s possession at the time that the offence was committed or immediately afterwards, then it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.

        (5)         In any circumstances except those set out in subsection (3) or (4), the applicant bears the onus of establishing that the respondent made criminal use of the property.

        (6)         When making a declaration, the court is to —

            (a)         assess the value of the crime-used property in accordance with section 23; and

            (b)         specify the assessed value of the crime-used property in the declaration.

        (7)         The court may make any necessary or convenient ancillary orders.

        [Section 22 amended: No. 28 of 2003 s. 40.]