Western Australian Current Acts

CRIMINAL PROPERTY CONFISCATION ACT 2000 - SECT 82

82 .         Crime-used property, release of

        (1)         The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime-used if the objector establishes that it is more likely than not that the property is not crime-used.

        (2)         If the court finds that the property is crime-used, or is not required to decide whether the property is crime-used, the court may make an order under subsection (3) or (4).

        (3)         The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that —

            (a)         the objector is the spouse, a de facto partner or a dependant of an owner of the property; and

            (b)         the objector is an innocent party, or is less than 18 years old; and

            (c)         the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed; and

            (d)         the objector was usually resident on the property at the time the objection was filed; and

            (e)         the objector has no other residence at the time of hearing the objection; and

            (f)         the objector would suffer undue hardship if the property is confiscated; and

            (g)         it is not practicable to make adequate provision for the objector by some other means.

        (4)         The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that —

            (a)         the objector is the owner of the property, or is one of 2 or more owners of the property; and

            (b)         the property is not effectively controlled by a person who made criminal use of the property; and

            (c)         the objector is an innocent party in relation to the property; and

            (d)         each other owner (if there are more than one) is an innocent party in relation to the property.

        (5)         If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector’s share of the property bears to the whole property.

        (6)         In an order under subsection (5), the court is to specify the proportion that it finds to be the objector’s share of the property.

        (7)         On the application of the DPP or an owner of the property, the court may set aside the freezing notice or freezing order for the property if it also orders the objector to pay to the State an amount equal to the value of the property.

        (8)         Sections 22(6), 22(7), 23, 24, 25 and 26 apply in relation to making an order under subsection (7) and to the objector as if the order was a crime-used property substitution declaration and the objector was the respondent in relation to the declaration.

        [Section 82 amended: No. 28 of 2003 s. 41.]