Asset forfeiture seizure order
Confiscation of fraudulently, serious crime derived and illegally acquired property under the Criminal Asset Recovery Act 1990 (NSW).The forfeiture proceeding under Criminal Assets Recovery Act 1990 is a civil proceeding, not a criminal proceeding and thus the quantum of evidence necessary is only preponderance of evidence.
An asset forfeiture order is an order issued by the Court of New South Wales confiscating the property of the person named in the order. The State has the right under the law through the NSW Crime Commission to confiscate fraudulently acquired property, serious crime derived property and illegally acquired property. It is clear then that an order from the court is necessary before the State can confiscate the subject property. The process is summary in nature and thus full blown trial is not necessary.
There are certain properties under the possession of a person or an interest therein by a person may be the subject of assets forfeiture order. Under the Criminal Assets Recovery Act 1990, a property is considered fraudulently acquired property if the interest is held in a false name and any of the following was knowingly used for the purposes of acquiring, or dealing with, that property:
a) A false instrument (including birth certificate or other identity document) or signature
b) A birth certificate or other identity of another person (Section 9A )
A property is considered serious crime derived property and illegally acquired property if:
a. It is all or part of the proceeds of a serious crime related activity, or
b. It is all or part of the proceeds of the disposal of or other dealing in serious crime derived property, or
c. It was wholly or partly acquired using serious crime derive property
The NSW Crime Commission is authorized to make an application to the Supreme Court for the issuance of the assets forfeiture order. The application must contain all the necessary specifications required by the law to make sure that an asset forfeiture order is obtained. The Supreme Court, in addition to the asset forfeiture order, may also issue ancillary orders it may deem appropriate.
For example, the Court may make ancillary orders for and with respect to facilitating the transfer to the Crown of interests in property forfeited to the Crown under such an order. (Section 23, Criminal Assets Recovery Act 1990)
The forfeiture order authorizes the forfeiture of the subject property of the application. The interest in the property shall be forfeited in favour of the Crown and vested in the NSW Trustee and Guardian on behalf of the Crown. The interest forfeited shall be disposed by NSW Trustee and Guardian in accordance with the directions of the Treasurer and the proceeds are to be paid to the Treasurer and credited to the Proceeds Account
A person whose property is the subject of the assets forfeiture order application by the Commission with the Supreme Court has a remedy. A person may make an application with the Supreme Court for an order declaring that his interest in the property subjected to the assets forfeiture order is not attributable to the proceeds of an illegal activity or that the property is not a fraudulently or illegally acquired property.
The application for an order of such declaration must be made by the person whose property was subjected to the assets forfeiture order within six (6) months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court or in any other case-unless it is made within 6 months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time and provided that he or she was given notice of the proceeding that led to the assets forfeiture order (Section 26 (4) Criminal Assets Recovery Act 1990)
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.