New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 33

33 Substituted tainted property declaration

(1) An appropriate officer may apply to an appropriate court for a substituted tainted property declaration against a person.

(2) A
"substituted tainted property declaration" is a declaration to the effect that property or an interest in property (or a combination of these) of a person who has been convicted of a serious offence is available for forfeiture instead of tainted property used in, or in connection with, the commission of that offence.

(3) Any application for a substituted tainted property declaration may be made--

(a) in conjunction with an application for a restraining order or forfeiture order, or

(b) at any other time.

(4) If an appropriate officer applies for a substituted tainted property declaration in respect of a property or interest in property (or a combination of these) of a person--

(a) the appropriate officer must give written notice of the application to the person and to any other person the appropriate officer has reason to believe may have an interest in the property or properties concerned, and

(b) the person, and any other person who claims an interest in the property or properties concerned, may appear and adduce evidence at the hearing of the application, and

(c) the court may, at any time before the final determination of the application, direct the appropriate officer to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate.

(5) The court must make a substituted tainted property declaration against a person if the court is satisfied that--

(a) the person has been convicted of a serious offence, and

(b) particular property became tainted property because it was used in, or in connection with, the commission of the serious offence, and

(c) the tainted property is not available for forfeiture because--

(i) the person does not own, and does not have effective control of, the property, or

(ii) the property has been sold or otherwise disposed of or cannot be found for any other reason.

(6) When making a substituted tainted property declaration against a person, the court is to--

(a) assess the value of the tainted property and specify its value in the declaration, and

(b) specify property or an interest in property (or combination of these) of the person that the court considers to be available for forfeiture instead of the tainted property.

(7) The value of the tainted property is to be assessed for the purposes of subsection (6) (a) by reference to its value at the time of the commission of the serious offence concerned.

(8) Property or an interest in property (or a combination of these) specified for the purposes of subsection (6) (b)--

(a) must not have a value (or a total combined value) that is greater than the value of the tainted property, and

(b) if it is practicable to do so, must be in relation to property of the same kind as the tainted property.

(9) If the court makes a substituted tainted property declaration, the property or interest in property (or combination of properties or interests) specified in the declaration as being available for forfeiture is to be treated as being the tainted property for the purposes of this Act (including in connection with the making of forfeiture orders) in relation to the serious offence concerned instead of the tainted property that is not available for forfeiture.