New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 28C

28C General provisions applying to proceeds assessment and unexplained wealth orders

(1) In assessing the amount payable under an unexplained wealth order, the Supreme Court must deduct the following (but only if those amounts would otherwise be included in the assessment of the amount payable under the order)--

(a) the value of any interests in property of the defendant forfeited under another confiscation order under this Act or an interstate assets forfeiture order,

(b) any amounts paid or payable by the defendant under any previous proceeds assessment order or unexplained wealth order under this Act or any interstate proceeds assessment or unexplained wealth order,

(c) the value of any interests in property of the defendant forfeited under a confiscation order or interstate forfeiture order within the meaning of the Confiscation of Proceeds of Crime Act 1989 or under Part 2, Division 1A of that Act,

(d) any amounts paid or payable by the defendant under any drug proceeds order, pecuniary penalty order or interstate pecuniary penalty order within the meaning of the Confiscation of Proceeds of Crime Act 1989 .

(1A) In assessing the amount payable under an unexplained wealth order, the Supreme Court may, if the Supreme Court considers it necessary, deduct from the amount assessed under section 28B the reasonable necessities of life of--

(a) the person subject to the order, and

(b) the person's dependants, if any.

(2) The Supreme Court may not make a proceeds assessment order or unexplained wealth order in an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside this State (including outside Australia) in relation to the proceeds of the external serious crime related activity.

(3) For the purposes of subsection (2), an affidavit by an authorised officer that includes a statement that the officer has made due inquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside this State (including outside Australia) against any interests in property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

(4) The quashing or setting aside of a conviction for a serious crime related activity does not affect the validity of a proceeds assessment order or unexplained wealth order.

(5) The making of a proceeds assessment order or unexplained wealth order does not prevent the making under Division 1 of an assets forfeiture order based on the serious crime related activity, or on all or any of the serious crime related activities, in relation to which the proceeds assessment order or unexplained wealth order is made.

(6) The amount a person is required to pay under a proceeds assessment order or unexplained wealth order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.

(7) If a proceeds assessment order or unexplained wealth order is made against a dead person, subsection (6) has effect before final distribution of the estate as if the person had died the day after the making of the order.

(8) The net amount recovered under a proceeds assessment order or unexplained wealth order is to be paid to the Treasurer and credited to the Proceeds Account.

(9) Notice of an application for a proceeds assessment order or unexplained wealth order is to be given to the person against whom the order is sought and any other person required by the regulations to be given notice.

(10) The absence of a person entitled to be given notice of a proceeds assessment order or unexplained wealth order does not prevent the Supreme Court from making the order.

(11) The Supreme Court may, when it makes a proceeds assessment order or unexplained wealth order or at any later time, make any ancillary orders that the Court considers appropriate.

(12) Despite any rule of law, or any practice, relating to hearsay evidence, the Supreme Court may, for the purposes of an application for a proceeds assessment order or unexplained wealth order, receive evidence of the opinion of--

(a) a member of the NSW Police Force, or

(b) a member of the Australian Federal Police, or

(c) an officer of Customs within the meaning of the Customs Act 1901 of the Commonwealth, or

(d) a member or officer of the Commission,

who is experienced in the investigation of illegal activities involving plants or drugs, being an opinion with respect to--

(e) the amount that was the market value at a particular time of a particular kind of plant or drug, or

(f) the amount, or range of amounts, ordinarily paid at a particular time for the doing of anything in relation to a particular kind of plant or drug.