New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 42M

42M Orders for the management of property

(1) An appropriate court that confirms a freezing notice is to make an order directing the Commissioner of Police--

(a) to take control of the property (if it is not under the control of the Commissioner) and, in any case, dispose of the property or the part of the property specified in the order, in the manner specified in the order, and

(b) to retain any proceeds until they are payable under this Act to another person or the State.

(2) An appropriate court may, if it thinks it appropriate to do so in the circumstances of the case, make one or more of the following orders instead of the order referred to in subsection (1)--

(a) an order directing that the property, or the part of the property specified in the order, is not to be disposed of, or otherwise dealt with, by the defendant or any other person, except in the manner and circumstances (if any) specified in the order,

(b) an order directing the NSW Trustee and Guardian or the Commissioner of Police to retain control or to take control of the property or the part of the property specified in the order,

(c) an order directing that the property or the part of the property specified in the order be returned to or retained by the defendant or another person,

(d) an order that the defendant or another person be allowed access to the property or the part of the property specified in the order.

(3) In determining whether it is appropriate in the circumstances to make an order of a kind referred to in subsection (1) or (2), the appropriate court is to have regard to the following matters--

(a) whether a defendant who is in custody is likely to be granted bail,

(b) any hardship that is reasonably likely to be caused to the defendant or a third party,

(c) if the defendant is an Aboriginal person or a Torres Strait Islander, when considering any hardship that is reasonably likely to be caused to the defendant or a third party, the responsibilities arising from the defendant's ties to extended family and kinship,

(d) the nature of the property and whether it is unique in nature,

(e) the case against the defendant,

(f) the expenses relating to storage and maintenance of the property,

(g) the use that is ordinarily or had been intended to be made of the property.

(4) In addition to any other order under this section, the appropriate court may make one or more of the following orders--

(a) an order providing for the provision, out of the property, of the defendant's reasonable living expenses, business expenses or reasonable expenses in defending a criminal charge,

(b) if the freezing notice directs the NSW Trustee and Guardian or the Commissioner of Police to take control (but not to dispose) of the property--

(i) an order regulating the manner in which the NSW Trustee and Guardian or Commissioner is to exercise his or her functions under the notice or order, or

(ii) an order determining any question relating to the property to which the notice relates, including any question relating to the liabilities of the owner or the exercise of the functions of the NSW Trustee and Guardian or Commissioner, or

(iii) an order directing the owner or a director of a body corporate that is the owner to give to the NSW Trustee and Guardian or Commissioner, within a period specified in the order, a statement, verified by the oath or affirmation of the person making the statement, setting out the particulars of the property, or dealings with the property, that the court thinks proper,

(c) such other ancillary or consequential orders as the court thinks appropriate in the circumstances.

(5) An order under this section directing the sale of property must require it to be sold for not less than its value at the time of the sale.