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Confiscation of Proceeds of Crime

Under the Confiscation of Proceeds of Crime Act 1989, the court is empowered to order the confiscation of a property derived from or used to commit a serious offence. It also means orders to preserve property to prevent it from being disposed of prior to the making of a confiscation order. However, not all confiscation orders apply only after a person is convicted with an offense. Some apply even without a conviction or an indictment under:

  • Criminal Assets Recovery Act 1990 (NSW)
  • Customs Act 1901 (Cth) ss.229A and 243B

Property used in or in connection with the commission of an offence is called “tainted property”. Section 4 of Confiscation of Proceeds of Crime Act defines tainted property as those substantially derived or realised, whether directly or indirectly, by any person:

  • from property used in or in connection with the commission of a serious offence

An example of which in relation to drug an offence is a vehicle used to transport drugs to the point of a result of the commission of a serious offence (such as items purchased with the proceeds of sale)

Cases under these laws are civil, not criminal actions. This means that a person does not get a criminal record if the court orders forfeiture of their property, or the payment of a monetary penalty. It also means that the court must only be satisfied on the balance of probabilities (not beyond reasonable doubt) that the property in question is tainted.

NSW cases are conducted in the Supreme Court, with proceedings brought by the NSW Crime Commission. Federal cases are run in the Federal Court.

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.

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