Forfeiture order

A forfeiture order is an order where the State may confiscate and dispose of property that is alleged to have been used in, or in connection with, the commission of a serious offence.

When Can an Application for a Forfeiture Order be Made?

The application must generally be made to the court that imposed the conviction within 6 months of the date of the conviction. Applications after 6 months are only allowed with the leave of the Supreme Court.

Order Pending Forfeiture

If a person has been convicted of a serious offence and it is likely that an application will be made to the court for a serious offence, an application can be made, for an in respect of the property.

If the court is satisfied that a forfeiture order might be made, it can order that the property listed in the application is not to be disposed of except in such manner as is specified in the order.

The Asset Forfeiture Process

Once an application has been made to the court for a forfeiture order, written notice of the application must be given to any person believed to have an interest in the property. A forfeiture order can only be granted after a hearing in court. Any person claiming an interest in the property can appear and give evidence at the hearing. In the absence of contradictory evidence the court will presume that the property was used in, or in connection with, the commission of the offence.

What does the Crown have to Prove?

A forfeiture order can only be granted if the court is satisfied on the balance of probabilities that the property is tainted property.

Tainted property means property that was:

• Used in, or in connection with, the commission of a serious offence; or
• Obtained, either directly or indirectly, by the defendant as a result of the commission of a serious offence.

A serious offence includes any offence against the laws of NSW that may be prosecuted on indictment.

What Happens if a Forfeiture Order is Made?

If the court makes a forfeiture order:

• The State may take possession of the property if it hasn’t done so already.
• The State may, after a certain period of time, dispose of the property.

Once a forfeiture order is made, the State is not allowed to dispose of the property straight away.

• If no appeal is lodged against either (1) the conviction of the serious offence; or (2) the forfeiture order, the property cannot be disposed of until the end of the period given to appeal the conviction or the forfeiture order.
• If an appeal is lodged against either (1) the conviction of the serious offence; or (2) the forfeiture order, the property cannot be disposed of until the determination of the appeal.

Appeals

An appeal can be lodged against the making of a forfeiture order by any person who has an interest in the property. An appeal must be lodged within 28 days of the making of the order.

Third parties

If a court makes a forfeiture order in respect of property, an innocent third party (“the applicant”) who claims an interest in the property may, within 6 months of the forfeiture order being made, apply to the court to have the order set aside as it applies to their interest.

The court must be satisfied on the balance probabilities that:

• The applicant was not involved in any way with the commission of the serious criminal offence; and
• The applicant had no reasonable suspicion that the property was tainted.

Production Order

A production order requires a person to produce or make available for inspection any property-tracking documents that are in their possession or control. A production order must specify the time, place and to whom the documents are to be produced.

The fact that the documents may be incriminating, or that the production would breach an obligation of the person not to disclose the existence or content of the document, does not excuse the person from having to comply with the order.

Failing to comply with the production order is an offence carrying a maximum penalty of two years imprisonment and/or 100 penalty units (or 500 penalty units for a corporation).

Seek Legal Advice

If you have been given written notice of an application for a it is essential that you seek legal advice immediately and attend the hearing.

If you are able to show the court the normal and intended use of the asset and/or demonstrate any hardship that may arise if the order is made, the court has the discretion not to grant the order.

Example: X borrowed his father’s car and used it in the commission of a number of drug offences. The NSW Police sought a forfeiture order in relation to the car. X was able to show that the car was not solely his, but he had borrowed it from his father, who was unaware of the drug offences. The court accepted that the normal and intended use of the car was to transport X’s younger siblings to and from school and for his father to get to work, and that hardship would arise to the family should the forfeiture order be granted. The court used its discretion and refused to grant the forfeiture order.