New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 20

20 Effects of forfeiture orders on third parties

(1) If, in reliance on the conviction of a person for a serious offence, a court makes a forfeiture order in respect of property, any other person (in this section referred to as the
"applicant" ) who claims an interest in the property may, at any time within the period of 6 months after the day on which the forfeiture order was made, apply to the court for an order under this section in respect of that interest.

(2) If the court to which the application is made is satisfied, on the balance of probabilities, that--

(a) the applicant was not, in any way, involved in the commission of the relevant serious offence, and

(b) if the applicant acquired the interest at the time of or after the commission of the offence, the applicant acquired the interest--

(i) for sufficient consideration, and

(ii) without knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property,

the court shall make an order declaring the nature, extent and value of the applicant's interest in the property and--

(c) if the property is still in the possession of the State--directing that the property be transferred to the applicant or declaring that there is payable to the applicant the amount specified in the order as the value of the applicant's interest in the property, or

(d) in any other case--declaring that there is payable to the applicant the amount specified in the order as the value of the applicant's interest in the property.

(3) In deciding, for the purpose of subsection (2) (c), whether to direct that property be transferred to an applicant or to declare that an amount is payable to an applicant, the court shall have regard to--

(a) the nature, extent and value of the applicant's interest in the property, and

(b) if the court is aware that any other person claims an interest in the property--the nature, extent and value of that claimed interest, and

(c) any other matter that seems to the court to be relevant.

(4) A person who applies to a court for an order under this section shall give notice, as prescribed by the regulations or by rules of court, of the making of the application and of the date, time and place fixed for the hearing of the application.

(5) A court may not make an order under this section in respect of the interest of an applicant who--

(a) has been given notice under section 14 (1) (a) in relation to the application for the forfeiture order, or

(b) has appeared under section 14 (1) (b) at the hearing of the application for the forfeiture order,

unless the court is satisfied that the making of the order is justified on special grounds.

(6) Special grounds referred to in subsection (5) include any of the following that are relevant--

(a) that the applicant was unable to appear at the hearing of the application for the forfeiture order,

(b) that the applicant did not appear at that hearing for a good reason,

(c) that particular evidence adduced by the applicant in connection with the application under subsection (1) was not available to the applicant at the time of the hearing of the application for the forfeiture order.

(7) A reference in this section to the transfer of property includes, without limiting the meaning of that expression, the transfer of land or an estate or interest in land by a conveyance, transfer or other appropriate transaction.