New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 43

43 Restraining orders

(1) If a person (in this section referred to as the
"defendant" ) has been, or is about to be, charged with, or has been convicted of, a serious offence, an appropriate officer may apply to the Supreme Court, ex parte, for an order in respect of-

(a) specified property of the defendant, or

(b) all the property of the defendant (including property acquired after the making of the order), or

(c) specified property of the defendant and all other property of the defendant (including property acquired after the making of the order), or

(d) all the property of the defendant (including property acquired after the making of the order) other than specified property, or

(e) specified property of a person other than the defendant.

(2) If-

(a) an application made to the Supreme Court under subsection (1) in reliance on the charging, or the proposed charging, of the defendant with a serious offence is supported by an affidavit of an authorised officer stating that the authorised officer believes that-

(i) the defendant committed the offence, and

(ii) the property to which the application relates is tainted property or substitutable tainted property in relation to the offence or the defendant derived benefits because of having committed the offence or, if the offence is a drug trafficking offence, is the defendant’s proceeds of drug trafficking, and

(iii) the property is the property of the defendant,

and setting out the grounds on which the authorised officer holds those beliefs, and

(b) the Court considers that, having regard to the matters contained in the affidavit and any evidence adduced under section 44 (1) (b), there are reasonable grounds for holding those beliefs,

the Court may, by order-

(c) direct that the property, or such part of the property as is specified in the order, is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order, and

(d) if the Court considers that the circumstances so require-direct the NSW Trustee and Guardian to take control of the property, or such part of the property as is specified in the order.

(3) Where an application is made under subsection (1) in reliance on the proposed charging of a person with a serious offence, the Supreme Court shall not make a restraining order unless it is satisfied that the person is likely to be charged with the offence or a related offence within 48 hours.

(4) If an application under this section seeks a restraining order against specified property of a person other than the defendant, the Supreme Court shall not make a restraining order against the property unless-

(a) the application is supported by an affidavit of an authorised officer stating that-

(i) the authorised officer believes that the property is tainted property in relation to the serious offence with which the defendant has been, or is about to be, charged or has been convicted of or is the defendant’s proceeds of drug trafficking, or

(ii) the authorised officer believes that-

(A) the property is subject to the effective control of the defendant, and

(B) the defendant has derived a benefit, directly or indirectly, from the commission of the serious offence, and

(b) the Court is satisfied, having regard to the matters contained in the affidavit and any evidence adduced under section 44 (1) (b), that there are reasonable grounds for holding that belief.

(5) In determining whether there are reasonable grounds to believe that property is in the effective control of the defendant the Supreme Court may have regard to the matters referred to in section 10 (meaning of “effective control of property”).

(6) A restraining order may be made subject to such conditions as the Supreme Court thinks fit and, without limiting the generality of this, may make provision for meeting out of the property, or a specified part of the property, to which the order applies all or any of the following-

(a) the defendant’s reasonable living expenses (including the reasonable living expenses of the defendant’s dependants (if any)) and reasonable business expenses,

(b) the defendant’s reasonable expenses in defending a criminal charge.

(7) The Supreme Court may refuse to make a restraining order if the State refuses or fails to give to the Court such undertakings as the Court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.

(8) For the purposes of an application under subsection (1), an appropriate officer may, on behalf of the State, give to the Supreme Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.

(9) A restraining order may not be made in respect of property affected by a freezing notice or the subject of a current application for a freezing notice under this Act.