New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 9

9 Meaning of "serious crime derived property" and "illegally acquired property"

(1) An interest in property is serious crime derived 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 derived property.

(2) The references in subsection (1) (b) and (c) to serious crime derived property are not limited to serious crime derived property described in subsection (1) (a) but also include interests in property that are serious crime derived property because of a previous operation or previous operations of subsection (1) (b) or (c) or their combined operation.

(2A) Without limiting subsection (1), an interest in property is taken to be wholly or partly acquired using serious crime derived property if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using all or part of the proceeds of a serious crime related activity or serious crime derived property.

(3) Once an interest in property becomes serious crime derived property it remains serious crime derived property even if the interest is disposed of or otherwise dealt with (including by being used to acquire an interest in property), but this is qualified by subsection (5).

(4) The meaning of
"illegally acquired property" is ascertained by substituting, in subsections (1)-(3),
"illegally acquired property" for
"serious crime derived property" and
"illegal activity" for
"serious crime related activity" .

(5) An interest in property ceases to be serious crime derived property or illegally acquired property--

(a) when it is acquired by a person for sufficient consideration without knowing, and in circumstances that would not arouse a reasonable suspicion, that the interest was, at the time of acquisition, serious crime derived property or illegally acquired property, or

(b) when it vests in a person as a result of the distribution of the estate of a deceased person, or

(c) when the interest is sold or otherwise disposed of under the authority of this Act (including when discharging a proceeds assessment order or unexplained wealth order), or

(d) when it is the proceeds of the sale or other disposition of serious crime derived property or illegally acquired property under the authority of this Act, except if--

(i) the sale or other disposition is pursuant to an order of the Supreme Court under this Act and the order does not expressly provide for the property to cease to be serious crime derived property or illegally acquired property on its sale or disposition, or

(ii) the sale or other disposition is under section 10B (4) (b) or 14, or

(e) when it is acquired by a person as payment of reasonable legal expenses incurred in connection with an application under this Act or incurred in defending a criminal charge, or

(f) in such other circumstances as may be prescribed.

(6) If an interest in property that is not serious crime derived property or illegally acquired property was once owned by a person and was then serious crime derived property or illegally acquired property, the property becomes serious crime derived property or illegally acquired property, respectively, if and when it is again acquired by the person.

(7) The proceeds of a sale or other dealing do not lose their identity as such merely as a result of being credited to an account.

(8) It does not matter whether the serious crime related activity, illegal activity, disposition or other dealing or acquisition by reason of which an interest in property becomes serious crime derived property or illegally acquired property took place before or after the commencement of this section.

(9) The following are examples of the practical operation of this section showing the ways in which an interest in property can become serious crime derived property and stop being serious crime derived property--

(a) if money that is the proceeds of a serious crime related activity is used to buy land, the land becomes serious crime derived property and the money used (which is now in the hands of some other person) continues to be serious crime derived property,

(b) if the land is then sold it continues to be serious crime derived property and the money paid for it becomes serious crime derived property,

(c) if the money paid for the land is then used to buy a car, the car becomes serious crime derived property and the money used to buy it (now in the hands of the car's former owner) continues to be serious crime derived property unless the purchase was for sufficient consideration from an innocent person.