An Act to amend the Confiscation of Proceeds of Crime Act 1989, the Civil Liability Act 2002, the Crimes Act 1900 and the Forfeiture Act 1995 with respect to the seizure and restraint of property connected with criminal activity, the supervision of damages paid to offenders suffering from mental illness, money laundering offences and the application of the forfeiture rule to persons found not guilty of murder by reason of mental illness; and for other purposes.
1 Name of Act
This Act is the Confiscation of Proceeds of Crime Amendment Act 2005.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90
The Confiscation of Proceeds of Crime Act 1989 is amended as set out in Schedule 1.
4 Amendment of Civil Liability Act 2002 No 22
The Civil Liability Act 2002 is amended as set out in Schedule 2.
5 Amendment of Crimes Act 1900 No 40
The Crimes Act 1900 is amended as set out in Schedule 3.
6 Amendment of Forfeiture Act 1995 No 65
The Forfeiture Act 1995 is amended as set out in Schedule 4.
Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989
(Section 3)
[1] Section 4 Definitions
Insert at the end of paragraph (b) (iii) of the definition of appropriate court in section 4 (1):, or(iv) a drug proceeds order against a person convicted of a drug trafficking offence or an application for a drug proceeds order,
[2] Section 4 (1), definition of “appropriate court”
Insert after paragraph (b):, or(c) in relation to a freezing notice, the court or Magistrate in which or before whom proceedings (including committal proceedings) for a serious offence on which the freezing notice is based are held.
[3] Section 4 (1), definition of “appropriate officer”
Insert “or freezing notices” after “restraining orders” in paragraph (b).
[4] Section 4 (1), definition of “authorised officer”
Insert “, Division 1A of Part 3” after “orders)” in paragraph (b).
[5] Section 4 (1), definitions of “bank”, “building society” and “credit union”
Omit the definitions.
[6] Section 4 (1), definition of “confiscation order”
Omit “or a pecuniary penalty order”.Insert instead “, pecuniary penalty order or drug proceeds order”.
[7] Section 4 (1), definition of “drug trafficking offence”
Omit the definition. Insert instead:drug trafficking offence means an offence under section 24A (possession of precursors for manufacture or production of prohibited drugs) or 25A (offence of supplying prohibited drugs on an ongoing basis) of the Drug Misuse and Trafficking Act 1985 or an offence, involving more than a small quantity of a prohibited plant or prohibited drug within the meaning of that Act, under any of the following sections of that Act:(a) section 23 (offences with respect to prohibited plants),(b) section 24 (manufacture and production of prohibited drugs),(c) section 25 (supply of prohibited drugs),(d) section 26 (conspiring),(e) section 27 (aiding, abetting etc commission of offence in New South Wales),(f) section 28 (conspiring to commit and aiding etc commission of offence outside New South Wales).
[8] Section 4 (1)
Insert in alphabetical order:facsimile includes a reference to any electronic communication device which transmits information in a form from which written material is capable of being reproduced with or without the aid of any other device or article.freezing notice means a notice issued under section 42C.means a declaration or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.telephone includes radio, facsimile and any other communication device.
[9] Section 4 (1), definition of “financial institution”
Omit paragraphs (a)–(c). Insert instead:(a) an authorised deposit-taking institution, or
[10] Section 4 (1), definition of “interstate forfeiture order”
Insert “or other instrument” after “order”.
[11] Section 4 (1), definition of “interstate pecuniary penalty order”
Insert “or other instrument” after “order”.
[12] Section 4 (1), definition of “interstate restraining order”
Insert “or other instrument” after “order”.
[13] Section 4 (1), definition of “tainted property”
Insert “substantially” before “derived” wherever occurring in paragraphs (b), (c) and (d).
[14] Section 4 (2)
Omit “being issued with a court attendance notice”.Insert instead “being issued with a court attendance notice or being a person against whom an information has been laid”.
[15] Section 4 (8)
Omit “is regarded as a State”.Insert instead “and the Australian Capital Territory are regarded as States”.
[16] Section 4 (9)
Insert after section 4 (8):(9) For the purposes of this Act, the value of property (other than cash) in relation to any person holding the property:(a) if any other person holds an interest in the property, is the market value of the first-mentioned person’s beneficial interest in the property (less the amount required to discharge any encumbrance, other than a forfeiture order, on that interest), and(b) in any other case, is its market value.
[17] Section 6 Meaning of “absconding”
Omit “an information has been laid” from section 6 (1) (a).Insert instead “a court attendance notice or information has been filed or laid”.
[18] Section 6 (1) (b)
Insert “or notice” after “information”.
[19] Section 7 Meaning of “serious offence” and “serious drug offence”
Omit “section 73 (money laundering) in relation to the proceeds of an offence” from paragraph (e) of the definition of serious drug offence.Insert instead “section 193B (money laundering) or 193D (dealing with property that subsequently becomes an instrument of crime) of the Crimes Act 1900 in relation to the proceeds of an offence, or an offence,”.
[20] Section 13 Applications for confiscation orders
Omit section 13 (2). Insert instead:(2) If a person is convicted of a drug trafficking offence, an appropriate officer may apply to an appropriate court for one or both of the following orders:(a) a forfeiture order against property that is tainted property in respect of any drug trafficking offences,(b) a drug proceeds order against the person in respect of benefits derived by the person from the commission of any drug trafficking offences.
[21] Section 13 (3A) (a) (ii)
Insert “or 30 (1) (b)” after “section 25 (2) (a1)”.
[22] Sections 14 (2) and 15 (2) (b) and (5)
Insert “or drug proceeds order” after “pecuniary penalty order” wherever occurring.
[23] Section 18 Forfeiture orders
Omit “section 13 (1) (a) or (2)” wherever occurring in section 18 (1) and (4).Insert instead “section 13 (1) (a) or (2) (a)”.
[24] Section 18 (2A)
Insert after section 18 (2):(2A) In considering any hardship reasonably likely to arise on the part of an Aboriginal person or a Torres Strait Islander convicted of a serious offence, the court must take into account responsibilities arising from the person’s ties to extended family and kinship.
[25] Section 27 Court may lift corporate veil etc
Insert “or freezing notice” after “restraining order” in section 27 (3) (b).
[26] Sections 29 and 30
Omit the sections. Insert instead:29 Drug proceeds orders(1) If an application is made for a drug proceeds order against a person (in this Division called the defendant) convicted of a drug trafficking offence, the court must:(a) determine whether the defendant has derived any benefit in connection with drug trafficking at any time, and(b) if the court believes the defendant has so benefited, assess the value of any such benefit, and(c) order the defendant to pay to the State a pecuniary penalty equal to the amount so assessed.(2) If:(a) property that is the proceeds of drug trafficking has been forfeited under this Act or a law of the Commonwealth, a Territory or another State, orthe pecuniary penalty to be made is taken to be reduced by an amount equal to the value of the property as at the time of the making of the forfeiture order.(b) a forfeiture order is proposed to be made against property that is proceeds of drug trafficking,(3) If:(a) a court makes an order under this section in relation to an offence, and(b) in calculating the penalty amount, the court took into account a proposed forfeiture order in respect of property, andan appropriate officer may apply to the court for a variation of the order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly.(c) an appeal against the forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made,(4) An amount payable by a defendant to the State in accordance with an order made under this section is, for all purposes, taken to be a civil debt due by the defendant to the State.(5) An order made by a court under this section may be enforced as if it were an order made by the court in civil proceedings instituted by the State against the defendant to recover a debt due by the person to the State.30 Assessment of proceeds of drug trafficking(1) A court is to assess the benefits (if any) derived in connection with drug trafficking by having regard to information before the court concerning all or any of the following matters:(a) the money, or the value of property other than money, that came into the possession or control of the defendant, or another person at the request or by the direction of the defendant, at any time in connection with drug trafficking by the defendant,(b) the value of any benefit that was provided for the defendant, or for another person at the request or direction of the defendant, in respect of the defendant’s involvement or participation in a public promotion relating to drug trafficking (or such part of the value of the benefit as is commensurate with the proportion of the defendant’s involvement or participation that is concerned with drug trafficking),(c) the value of any benefit, other than a benefit of a kind referred to in paragraph (a) or (b), that was provided for the defendant, or another person at the request or by the direction of the defendant, because of drug trafficking by the defendant,(d) the market value, at the time of the drug trafficking, of substances similar or substantially similar to the prohibited drug or prohibited plant involved in the drug trafficking offence or offences,(e) the amount that was, or the range of amounts that were, ordinarily paid for the doing of an act or thing similar or substantially similar to the doing of the act or thing constituting the drug trafficking,(f) the value of the defendant’s property appearing to the court:(i) to have been held by the defendant at any time since his or her conviction, or(ii) to have been transferred to the defendant at any time since the beginning of the period of 6 years that ended when the proceedings were instituted against the defendant,(g) the value of the defendant’s income and expenditure:(i) at any time since his or her conviction, or(ii) at any time since the beginning of the period of 6 years that ended when the proceedings were instituted against the defendant.(2) In considering whether to treat a benefit of the kind referred to in subsection (1) (b) as a benefit derived in connection with drug trafficking, a court may have regard to any matter that it thinks fit, including the public interest and any research, educational or rehabilitative purpose of the public promotion concerned.(3) If evidence is given that the value of the defendant’s property or the defendant’s income or expenditure:(a) after the defendant committed drug trafficking offences, orexceeded the value of the defendant’s property or income or expenditure before the defendant committed the drug trafficking offences or before the commencement of that period then the court must treat the value of the benefits derived by the defendant because of drug trafficking by the defendant as being not less than the amount of the excess.(b) during and after the end of the period of 6 years that ended when proceedings for the drug trafficking offences were last instituted against the defendant,(4) Subsection (3) does not apply to the whole or a part of the excess referred to in that subsection if the defendant satisfies the court that it was due to causes unrelated to drug trafficking or the commission of other serious offences.(5) For the purposes of assessing the value of the proceeds of drug trafficking in a case where a drug proceeds order has previously been made against the defendant, the court must leave out of account any of the defendant’s proceeds of drug trafficking that are shown to the court:(a) to have been taken into account in determining the amount to be recovered in respect of drug trafficking under a previous drug proceeds order or pecuniary penalty order, or(b) to have been recovered under an order made under the Criminal Assets Recovery Act 1990.(6) In assessing the value of the proceeds of drug trafficking of a defendant convicted of a drug trafficking offence or offences, any expenses or outgoings of the defendant in connection with the commission of the offence or offences must not be deducted.(7) This section applies to and in relation to property that comes into the possession or under the control of a person either within or outside New South Wales, and to benefits that are provided for a person either within or outside New South Wales.
[27] Section 31 Statements relating to drug trafficking
Omit “payment or other reward was received” from section 31 (3) (b) and (6) wherever occurring.Insert instead “benefit was derived”.
[28] Section 31 (4) and (7)–(9)
Omit the subsections.
[29] Section 31A
Insert after section 31:31A Evidence as to value of drugs and other matters(1) In proceedings for an application for a drug proceeds order, a member of NSW Police, a member of the Australian Federal Police or a Customs officer may give evidence (whether in person or in a statement tendered to the court by the prosecution under this Division):(a) as to the market value, at the time of a drug trafficking offence in relation to a substance, or substantially similar substances, and(b) as to the amount, or the range of amounts, ordinarily paid for the doing of a similar or substantially similar act or thing to the offence.(2) The evidence may be given by a person who is experienced in the investigation of indictable offences under (or similar to offences under) the Drug Misuse and Trafficking Act 1985.(3) Any such person may give evidence, to the best of his or her information, knowledge and belief:(a) as to the amount that was the market value of a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 at a particular time or during a particular period, ordespite any rule of law or practice relating to hearsay evidence and the testimony is, in the absence of evidence to the contrary, evidence of the matter testified to.(b) as to the amount, or the range of amounts, ordinarily paid at a particular time, or during a particular period, for the doing of an act or thing in relation to any such prohibited drug or prohibited plant,
[30] Section 32
Omit sections 32–34. Insert instead:32 Court may look at property subject to effective control of defendant(1) In assessing the value of benefits derived by a person because of drug trafficking, a court may treat as property of the defendant any property that, in the opinion of the court, is subject to the effective control of the defendant.(2) On application by an appropriate officer, a court may make an order declaring that specified property is available to satisfy a drug proceeds order, if it is of the opinion that the property is subject to the effective control of a defendant against whom the court has made a drug proceeds order.(3) If a court declares that property is available to satisfy a drug proceeds order:(a) the order may be enforced against the property as if the property were property of the person against whom the order is made, and(b) a freezing notice or restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.(4) An appropriate officer must give written notice of an application under this section to the defendant and to any other person the appropriate officer has reason to believe may have an interest in the property.(5) The defendant and any other person who claims an interest in the property may appear and adduce evidence at the hearing of the application.
[31] Section 35 Definitions
Insert “substantially” before “derived” wherever occurring in the definition of tainted property in section 35 (1).
[32] Section 35 (1), definition of “tainted property”
Insert after paragraph (c) of the definition of tainted property:, or(d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender’s thoughts, opinions or emotions regarding the offence, in any public promotion.
[33] Section 41 Return of seized property
Omit “an information has been laid in respect of the relevant serious offence (or criminal proceedings have otherwise been commenced in respect of the relevant serious offence)” from section 41 (2) (b).Insert instead “criminal proceedings have been commenced in respect of the relevant serious offence”.
[34] Part 3, Division 1A
Insert after Division 1:Division 1A Freezing notices42A DefinitionsIn this Division:means an authorised officer within the meaning of the Criminal Procedure Act 1986.defendant has the same meaning as in section 42B.42B Applications for freezing notices(1) An authorised officer may apply to an authorised justice for a freezing notice in respect of specified property of a person if the person (the defendant) has been, or is about to be, charged with, or has been convicted of, a serious offence and the authorised officer has reasonable grounds for believing that:(a) if the defendant has not been convicted of the offence, the defendant committed the offence, and(b) the property is tainted property in relation to that offence or the defendant derived benefits because of having committed the offence or, if the offence is a drug trafficking offence, the property is the defendant’s proceeds of drug trafficking.(2) An authorised officer may apply to an authorised justice for a freezing notice in respect of the property of a person if another person (the defendant) has been, or is about to be, charged with, or has been convicted of, a serious offence and the authorised officer has reasonable grounds for believing that:(a) the property is tainted property in relation to the offence with which the defendant has been or is about to be charged, or of which the defendant has been convicted, or is the defendant’s proceeds of drug trafficking, or(b) the property is subject to the effective control of the defendant and the defendant has derived a benefit, directly or indirectly, from the commission of the serious offence.(3) An application for a freezing notice (other than a telephone freezing notice) must be in writing in the form prescribed by the regulations and must be made by the applicant in person.(4) The applicant must provide (either orally or in writing) any further information that the authorised justice requires concerning the grounds on which the freezing notice is sought.42C Issue of freezing notices(1) An authorised justice may issue a freezing notice if satisfied that:(a) the defendant is likely to be charged with the offence or a related offence within 48 hours or has been charged with or convicted of a serious offence, and(b) there are reasonable grounds for the belief of the officer as to the matters set out in subsection (2) (c) and (d) (i) or (e) (i) or (ii) (if applicable).(2) An authorised justice must not issue a freezing notice unless:(a) the application includes details of the authority of the applicant to make the application, and(b) the application includes the grounds on which the notice is being sought, and(c) the application is supported by a statement by the applicant that the applicant believes that the defendant has committed a serious offence, if the defendant has not been convicted of the offence, and(d) in the case of property of the defendant, the application is supported by a statement by the applicant:(i) that the applicant believes that the property to which the application relates is tainted property in relation to that offence or the defendant derived benefits because of having committed the offence or, if the offence is a drug trafficking offence, the property is the defendant’s proceeds of drug trafficking, and(ii) setting out the grounds on which the applicant holds those beliefs, and(e) in the case of property of a person other than the defendant, the application is supported by a statement by the applicant that the applicant believes that:(i) the property is tainted property in relation to the offence with which the defendant has been charged or convicted or is the defendant’s proceeds of drug trafficking, orand setting out the grounds on which the applicant holds those beliefs, and(ii) the property is subject to the effective control of the defendant and the defendant has derived a benefit, directly or indirectly, from the commission of the offence,(f) the statements and any other information given by the applicant in or in connection with the application are verified before the authorised justice on oath or affirmation or by affidavit.(3) In determining whether there are reasonable grounds to believe that property is in the effective control of the defendant, the authorised justice may have regard to the matters referred to in section 10.(4) A freezing notice may not be issued in respect of property affected by a restraining order or forfeiture order or the subject of an application for a restraining order or forfeiture order under this Act.(5) A freezing notice under this Act and a restraining order under the Criminal Assets Recovery Act 1990 may not be made so as to be in force in respect of the same interest in property at the same time.(6) The issue of a freezing notice is a ministerial function and is not a judicial function.42D Form of freezing notice(1) A freezing notice must direct that:(a) specified property not be disposed of, or otherwise dealt with by the defendant or by any other person, except in the manner and circumstances (if any) specified in the notice, and(b) the property be held in the custody of the Commissioner of Police or the defendant or another person, pending the determination of an application for confirmation of the freezing notice.(2) A freezing notice is to be in the form prescribed by the regulations.42E Telephone freezing notices(1) An authorised officer may make an application by telephone for a freezing notice.(2) An authorised justice must not issue a freezing notice on an application made by telephone unless the authorised justice is satisfied that the notice is required urgently and that it is not practicable for the application to be made in person.(3) An application under this section must be made by facsimile if the facilities to do so are readily available for that purpose.(4) If it is not practicable for an application for a freezing notice to be made by telephone directly to an authorised justice, the application may be transmitted to the authorised justice by another person on behalf of the applicant.(5) An authorised justice who issues a freezing notice on an application made by telephone must:(a) complete and sign the notice, and(b) furnish the notice to the person who made the application or inform that person of the terms of the notice and of the date and time when it was signed.(6) If a freezing notice is issued on an application made by telephone, the applicant is to complete a form of freezing notice in the terms indicated by the authorised justice under subsection (5) (b) and write on it the name of that authorised justice and the date and time when the notice was signed.(7) A form of freezing notice so completed is taken to be a freezing notice issued in accordance with this Act.(8) A freezing notice is to be furnished by an authorised justice by transmitting it by facsimile, if the facilities to do so are readily available, and the copy produced by that transmission is taken to be the original document.42F Notice of issue of freezing notice(1) An applicant for a freezing notice must give notice of the issuing of the notice to the defendant, any owner of property affected by the notice and any other person subject to the notice.(2) Notice must be given in accordance with the regulations.42G False or misleading information in applications(1) A person must not, in or in connection with an application for a freezing notice, give information to an authorised justice that the person knows to be false or misleading in a material particular.Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.(2) This section applies to an application by telephone as well as in person.(3) This section applies whether or not the information given is also verified on oath or affirmation or by affidavit.42H Record of proceedings before authorised justice(1) An authorised justice who issues a freezing notice must cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the notice.(2) The regulations may make provision for or with respect to:(a) the keeping of records in connection with the issue and execution of freezing notices, and(b) the inspection of any such records, and(c) any other matter in connection with any such records.(3) Any matter that might disclose the identity of a person must not be recorded pursuant to this section if the authorised justice is satisfied that the safety of any person might be jeopardised by doing so.42I Application to confirm freezing notice(1) An application for confirmation of the notice is to be made to the appropriate court by an authorised officer, not later than 14 days after a freezing notice is issued.(2) The application is to be set down for hearing on the first date for committal or trial proceedings for the serious offence on which the freezing notice was based that occurs after the application is made, or as soon as practicable after the application is made.(3) An applicant for confirmation of a freezing notice must give notice of the application to the defendant, any owner of property affected by the notice and any other person subject to the notice.(4) A person given notice under this section is entitled to appear and to adduce evidence at the hearing of the application.(5) Notice must be given in accordance with rules of court.42J Notice to third partiesIf an application has been made to an appropriate court to confirm a freezing notice in respect of property:(a) the court may, if it thinks fit, require the officer making the application to give notice of the application to a person who the court has reason to believe has an interest in the property or part of the property, and(b) a person to whom the court requires notice to be given under this section is entitled to appear and to adduce evidence at the hearing of the application.42K Appeals against freezing notices issued by authorised justices(1) A defendant, an authorised officer or another person claiming an interest in property affected by a freezing notice may, at any time before the notice is confirmed, apply to the appropriate court to have the freezing notice set aside or varied.(2) An application may be heard before the day set down for hearing the application to confirm the notice.(3) On an application, the appropriate court must proceed to deal with the matter under section 42L, whether or not an application has been made under section 42I.42L Confirmation of freezing notices(1) An appropriate court may, on an application under section 42I or 42K:(a) confirm the freezing notice (with or without variation), or(b) set aside the freezing notice.(2) An appropriate court may confirm a freezing notice if it is satisfied that:(a) the application is supported by an affidavit by an authorised officer that complies with this section, and(b) having regard to the matters contained in the affidavit or other evidence given in the proceedings, there are reasonable grounds to believe the matters set out in the affidavit, and(c) proceedings have been commenced against the defendant for a serious offence or the defendant has been convicted of a serious offence, and(d) the property concerned is not affected by a restraining order, or an application for a restraining order under this Act or the Criminal Assets Recovery Act 1990, and(e) it is appropriate in the circumstances to confirm the notice.(3) The affidavit of the authorised officer supporting the application must set out the officer’s belief, and the grounds for the belief, that the defendant committed the serious offence concerned (including details of any conviction) and as to one or more of the following in relation to property the subject of the freezing notice:(a) in the case of property of the defendant, that the property is tainted property in relation to the offence or the defendant derived benefits because of having committed the offence or the property is the defendant’s proceeds of drug trafficking,(b) in the case of property of a person other than the defendant, that:(i) the property is tainted property in relation to the offence or is the defendant’s proceeds of drug trafficking, or(ii) the property is subject to the effective control of the defendant and the defendant has derived a benefit, directly or indirectly, from the commission of the serious offence.(4) In determining whether there are reasonable grounds to believe that property is in the effective control of the defendant, the appropriate court must have regard to the matters referred to in section 10.(5) The appropriate court must make orders of a kind referred to in section 42M in relation to property to which a freezing notice applies if it confirms the freezing notice. Any such order is taken, for the purposes of this Act, to be included in the terms of the freezing notice.(6) If evidence is given at the hearing that property to which the application relates was in the possession of the defendant at or immediately after the commission of the offence:(a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence, or(b) in any other case—the court must not confirm a freezing notice in relation to the property unless it is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence.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 Public Trustee 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 Public Trustee or the Commissioner of Police to take control (but not to dispose) of the property:(i) an order regulating the manner in which the Public Trustee 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 Public Trustee or Commissioner, or(iii) an order directing the owner or a director of a body corporate that is the owner to give to the Public Trustee 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.42N Undertakings as to payment of damages or costs(1) An appropriate court may refuse to confirm a freezing notice if the State refuses or fails to give 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 notice.(2) For the purposes of an application to confirm a freezing notice, an appropriate officer may, on behalf of the State, give to the appropriate court such undertakings with respect to the payment of damages or costs, or both, as are required by the court.42O Contravention of freezing notices(1) A person who knowingly contravenes a freezing notice is guilty of an offence and punishable, on conviction, by a fine equivalent to the value of the property subject to the notice (as determined by the appropriate court) or by imprisonment for a period not exceeding 2 years, or both.(2) If:(a) a freezing notice is made against property, and(b) the property is disposed of, or otherwise dealt with, in contravention of the notice, andan appropriate officer may apply to the Supreme Court for an order that the disposition or dealing be set aside.(c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,(3) The Supreme Court may, on an application under subsection (2), make an order:(a) setting aside the disposition or dealing as from the day on which the disposition or dealing took place, or(b) setting aside the disposition or dealing as from the day of the order and declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order.42P Duration of freezing noticesA freezing notice ceases to be in force if any of the following occurs:(a) if the defendant has not been charged with a serious offence at the end of the period of 48 hours after the issuing of the notice,(b) on an appropriate court refusing to confirm the freezing notice or if an application for confirmation of the notice has not been made within 14 days after it is issued,(c) if the charge is withdrawn and the defendant is not charged with a related offence by the time of the withdrawal,(d) if the defendant is acquitted of the charge or the charge is dismissed and the defendant is not charged with a related offence by the time of the acquittal or dismissal,(e) if the appropriate court refuses to make a forfeiture order in relation to the property to which it relates and:(i) an appeal against the refusal is finally determined, or(ii) the time for making an appeal against the refusal expires and an appeal is not made before the time expires,(f) if a court makes an order setting aside the freezing notice in respect of the whole of the property to which it relates.42Q Effect of other orders on freezing notices(1) If, while a freezing notice in respect of property is in force, a court makes a forfeiture order in respect of the property or makes a pecuniary penalty order or a drug proceeds order against the defendant subject to the notice, the court or an appropriate court may:(a) if it considers it appropriate, make an order setting aside the freezing notice in respect of the whole or a specified part of the property, and(b) make any other order or orders it considers appropriate in relation to the operation of the freezing notice.(2) If, while a freezing notice in respect of property is in force, a court refuses to make a forfeiture order in respect of the property or refuses to make a pecuniary penalty order or drug proceeds order against the defendant, the court or an appropriate court may:(a) if it considers it appropriate, make an order in relation to the period for which the freezing notice is to remain in force, and(b) make any other order or orders it considers appropriate in relation to the operation of the freezing notice.(3) An order under this section may:(a) set aside the freezing notice wholly or in part, or(b) take effect:(i) on the making of the forfeiture order, pecuniary penalty order or drug proceeds order, or(ii) at a specified time, or(iii) if relevant, on the payment of a penalty amount to the State, or(iv) on the happening of some other specified event.42R Purchase of property(1) The payment to the State of an amount equal to the value of property subject to a freezing notice operates to discharge the freezing notice (except in so far as the court otherwise directs).(2) For the purposes of this section, the value of property is the value agreed between the Attorney General and the person seeking to discharge the freezing notice.(3) A payment may not be made under this section before a freezing notice is confirmed by a court.42S Return of property(1) If a freezing notice ceases to be in force and the property concerned is not subject to any other order under this Act, the person who is lawfully entitled to it may apply to the Attorney General for the return of the property or for payment of an amount equal to the value of the property together with interest calculated from the date, and at the rate, prescribed by the regulations.(2) The Attorney General must, if satisfied that the person is lawfully entitled to the property, return the property or pay the amount, as the case requires, not later than 6 months after receipt of the application.(3) If the person who is lawfully entitled to property or to be paid an amount under this section cannot be ascertained or an application is not made within 6 months of the freezing notice ceasing to be in force, the property is to be dealt with as if it had been forfeited under this Act.42T Arrangements for management of propertyThe Commissioner of Police may enter into arrangements with the Public Trustee or any other person with respect to the management of property that is under the control of the Commissioner under a freezing notice.42U Appeals against refusal to confirm freezing notice(1) The Attorney General, the Director of Public Prosecutions or the Commissioner of Police may appeal to the appeal court against a refusal by an appropriate court to confirm a freezing notice.(2) On an appeal, the appeal court may make any order that an appropriate court may make on an application for confirmation of a freezing notice.(3) An order made by the appeal court under this section is taken to have been made by the appropriate court, but is not on that account subject to further appeal.(4) In this section, the appeal court is:(a) in relation to a Magistrate, Local Court, the Children’s Court or District Court—the Supreme Court, and(b) in relation to the Supreme Court—the Court of Criminal Appeal.42V Court may make further orders relating to freezing notices(1) An appropriate court that confirms a freezing notice or a court that is dealing with proceedings for a serious offence in relation to which a freezing notice has been issued may, at any time, make any orders ancillary to the freezing notice that the court considers appropriate.(2) Without limiting the generality of subsection (1), the court may make any one or more of the following orders:(a) an order varying the terms of the freezing notice, including the property to which it relates and any conditions of the notice,(b) an order with respect to the carrying out of any undertaking with respect to the payment of costs or damages given by the State in connection with the confirmation of the freezing notice,(c) an order setting aside the freezing notice in respect of the whole or part of the property.(3) An order under this section may be made on the application of any of the following persons:(a) an appropriate officer,(b) the owner,(c) a person directed by the freezing notice to take control of property subject to the notice,(d) any other person with the leave of the court.(4) A person who makes an application under this section must give notice of the application, as prescribed by the regulations or rules of court, to each other person who is entitled, by virtue of subsection (3) (a)–(c), to make an application under this section.
[35] Section 43 Restraining orders
Insert “, or has been convicted of,” after “charged with” in section 43 (1).
[36] Section 43 (4) (a) (i)
Insert “or has been convicted of” after “charged”.
[37] Section 43 (9)
Insert after section 43 (8):(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.
[38] Section 45 Supreme Court may make further orders relating to restraining orders
Omit section 45 (6) and (7). Insert instead:(6) A person who makes an application under this section in relation to a restraining order must give notice of the application, as prescribed by the regulations or rules of court, to each other person who is entitled, by virtue of subsection (3) (a)–(c), to make an application under this section in relation to the order.
[39] New section 45A
Renumber section 50 as section 45A and insert after section 45.
[40] New section 45B
Renumber section 55 as section 45B and insert after new section 45A.
[41] Part 3, Division 3, heading
Insert before section 46:Division 3 General provisions applying to restraining orders and freezing notices
[42] Section 46
Omit the section. Insert instead:46 Order for taxation of legal expenses to be met out of restrained or frozen property(1) If:(a) the Supreme Court makes a restraining order directing the Public Trustee to take control of property or an appropriate court makes a freezing notice directing the Public Trustee or Commissioner of Police to take control of property, andthe Public Trustee or Commissioner may apply to the court for an order under subsection (3).(b) the order or notice makes provision for meeting, out of the property or part of it, a person’s reasonable expenses in defending a criminal charge,(2) The Public Trustee or Commissioner must give to the person written notice of an application under this section.(3) On an application, the court may order that the expenses be taxed as provided in the order or notice or may dismiss the application.(4) An applicant for an order need not, except as ordered by the court after the application is made, take any steps for the purpose of meeting the expenses as provided by the restraining order or freezing notice unless and until:(a) an order under subsection (3) in relation to the expenses is complied with, or(b) the application, and any appeal arising out of it, are finally determined, or otherwise disposed of, otherwise than by the making of such an order.
[43] Section 47 Public Trustee or Commissioner of Police to discharge confiscation order
Insert “or Commissioner of Police” after “Public Trustee” where firstly occurring in section 47 (1) (a).
[44] Section 47 (1) (a) and (4) (a)
Insert “or freezing notice” after “restraining order” wherever occurring.
[45] Section 47 (1) (b)
Omit “or drug proceeds order”.
[46] Section 47 (1)
Insert “or Commissioner” after “Public Trustee” where secondly and thirdly occurring.
[47] Section 47 (2), (4), (5) and (6)
Insert “or Commissioner” after “Public Trustee” wherever occurring.
[48] Section 47 (4) (a)
Insert “or Commissioner’s” after “Public Trustee’s” wherever occurring.
[49] Section 47 (6)
Omit “or drug proceeds order” wherever occurring.
[50] Section 48 Charge on property subject to restraining order or freezing notice
Omit section 48 (1) (a). Insert instead:(a) in reliance on the charging, or the proposed charging, of a person with, or the conviction of a person of, a serious offence, a court has made a restraining order or confirmed a freezing notice in respect of property of a person, and
[51] Section 48 (1)
Insert “or freezing notice” after “restraining order” where secondly occurring.
[52] Section 48 (2) (c) (iii)
Omit the subparagraph. Insert instead:(iii) if the restraining order or freezing notice directed the Public Trustee or the Commissioner of Police to take control of the property—by the owner of the property with the consent of the Public Trustee or the Commissioner, or
[53] Section 48 (4) (a)
Insert “or Commissioner” after “Public Trustee”.
[54] Section 49 Registration of restraining orders and freezing notices
Insert “or freezing notice” after “restraining order” wherever occurring in section 49 (1).
[55] Section 49 (2)
Omit “a restraining order”. Insert instead “an order or notice”.
[56] Section 49 (2)
Omit “section 50”. Insert instead “section 42O or 45A”.
[57] Section 49 (2)
Omit “the restraining order”. Insert instead “the order or notice”.
[58] Section 49 (3)
Insert “or freezing notice” after “restraining order”.
[59] Section 49 (3)
Insert “or notice” after “the order”.
[60] Section 51 Hindering or obstructing Public Trustee or Commissioner of Police
Omit section 51 (1). Insert instead:(1) A person must not hinder or obstruct the Public Trustee or the Commissioner of Police in the performance of their obligations under a restraining order or freezing notice.Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
[61] Section 51A
Insert after section 51:51A Orders to furnish statements to Public Trustee or Commissioner of Police(1) A person directed by an order under section 42M or 45 to furnish a statement to the Public Trustee or Commissioner of Police is not excused from:(a) furnishing the statement, oron the ground that the statement or particulars might tend to incriminate the person or make the person liable to a forfeiture or penalty.(b) setting out particulars in the statement,(2) A statement furnished to the Public Trustee or Commissioner under any such order, and any information, document or thing obtained as a direct or indirect consequence of the statement, is not admissible against the person in any criminal proceedings except a proceeding in respect of the falsity of the statement.
[62] Section 52 Protection of Public Trustee and Commissioner of Police from liability in certain cases
Insert “or Commissioner of Police” after “Public Trustee” wherever occurring in section 52 (2) and (3).
[63] Section 52 (2) and (3)
Insert “or freezing notice” after “restraining order” wherever occurring.
[64] Section 53 Fees payable to Public Trustee or Commissioner of Police
Insert “or Commissioner of Police” after “Public Trustee” wherever occurring.
[65] Section 53
Insert “or freezing notice” after “restraining order”.
[66] Section 54 Court may revoke orders or notices
Omit “the Supreme Court has made a restraining order, the Court may, on application made to it by the person, revoke the order”.Insert instead “a court has made a restraining order or confirmed a freezing notice, the court may, on application made to it by the person, revoke the order or notice”.
[67] Section 54 (a) and (b)
Omit “Court” wherever occurring. Insert instead “court”.
[68] Section 54 (2)
Insert at the end of section 54:(2) A person who makes an application under this section must give notice of the application, as prescribed by the regulations or rules of court.
[69] Section 56 Notice of applications under this Part
Omit the section.
[70] Section 57 Certificate by Public Trustee or Commissioner of Police
Insert “or freezing notice” after “restraining order” wherever occurring.
[71] Section 57 (2)
Insert at the end of section 57:(2) If a freezing notice is in force directing the Commissioner of Police to take control of property, a certificate by the Commissioner:(a) certifying that the freezing notice has been made and is in force, andis to be accepted by all courts, officers and other persons, whether acting under any Act or not, as evidence of the matters so certified and stated and of the Commissioner’s right to act under the notice, without production of any further proof.(b) stating the terms of the freezing notice,
[72] Section 62 Effect of production orders on proceedings etc
Insert “or to confirm a freezing notice” after “drug proceeds order” in section 62 (3).
[73] Section 69 Making of monitoring orders
Omit “section 73 (money laundering)” from section 69 (3).Insert instead “Division 1A of Part 4 of the Crimes Act 1900”.
[74] Section 72 Protection where financial information given
Omit “section 73 (money laundering)”.Insert instead “Division 1A of Part 4 of the Crimes Act 1900”.
[75] Part 5, Division 1 Money laundering
Omit the Division.
[76] Part 5, Division 2, heading
Omit the heading.
[77] Section 74 Proceedings for offences
Omit “under section 50 (contravention of restraining orders)” from section 74 (2).Insert instead “under section 42O or 45A”.
[78] Section 74 (3)
Omit “under section 50 shall”.Insert instead “under section 42O or 45A must”.
[79] Section 74 (4)
Omit “or 73 (money laundering)”.
[80] Section 77 Registration of interstate instruments
Insert “, interstate crime related property declaration” after “interstate forfeiture order” wherever occurring in section 77 (1) and (3).
[81] Section 77 (1) and (4)
Insert “or declaration” after “the order” wherever occurring.
[82] Section 77 (2) and (2A)
Omit section 77 (2). Insert instead:(2) An interstate forfeiture order, interstate crime related property declaration or interstate restraining order is to be regarded as registered under this Act when a copy of the order or declaration (being a copy sealed by the court or person that made the order or declaration) is registered in accordance with the rules of the Supreme Court.(2A) A sealed copy of an interstate forfeiture order, interstate crime related property declaration or interstate restraining order is not required for the purposes of registration if it is not the practice of the court or body that issued the order or declaration to seal copies of the order or declaration.
[83] Section 78A
Insert after section 78:78A Effect of registration of interstate crime related property declarations(1) A registered interstate crime related property declaration is, subject to the regulations, to be enforced as if it were a registered interstate forfeiture order and this Part applies accordingly.(2) Regulations may be made for or with respect to the circumstances in which a registered interstate crime related property declaration is to be treated as a registered interstate forfeiture order.
[84] Section 79 Effect of registration of interstate restraining orders
Omit “48, 54, 55” from section 79 (2). Insert instead “45B, 48, 54”.
[85] Section 80 Revocation or variation of registered orders or declarations
Insert “, registered interstate crime related property declaration” after “interstate forfeiture order”.
[86] Section 80
Insert “or declaration” after “an order”.
[87] Section 81 Duration of registration
Insert “, interstate crime related property declaration” after “interstate forfeiture order” in section 81 (a).
[88] Section 81
Insert “or declaration” after “order” where thirdly, fourthly and fifthly occurring.
[89] Section 82 Cancellation of registration
Insert “, interstate crime related property declaration” after “interstate forfeiture order” in section 82 (1).
[90] Section 82 (1) (b) and (2)
Insert “or declaration” after “order” wherever occurring.
[91] Section 85 Interim registration of facsimile copies
Insert “, interstate crime related property declaration” after “interstate forfeiture order” in section 85 (1) (a).
[92] Section 85 (1) (b)
Insert “or declaration” after “order”.
[93] Section 85 (1)
Omit “the rules of the Supreme Court”.Insert instead “the requirements of the court or body that issued it”.
[94] Section 85 (4)
Insert “or interstate crime related property declaration” after “interstate forfeiture order”.
[95] Section 85 (4)
Insert “or declaration” after “the order”.
[96] Section 87 Provisions relating to courts
Omit “$10,000” from section 87 (2) and (3) wherever occurring.Insert instead “the maximum amount that may be awarded by a Local Court when exercising its general civil jurisdiction”.
[97] Section 89 Interstate operation of New South Wales orders and notices
Omit “or restraining order” wherever occurring.Insert instead “, restraining order or freezing notice”.
[98] Section 89 (1), (2), (3) (a), (b) and (c)
Insert “or notice” after “the order” wherever occurring.
[99] Section 90 Costs incurred on variation of orders or notices on application by third parties
Omit “the Supreme Court” from section 90 (1) (a). Insert instead “a court”.
[100] Section 90 (1) (a)
Omit “or restraining order”.Insert instead “, restraining order or freezing notice”.
[101] Section 90 (1)
Omit “Supreme Court may”. Insert instead “court may”.
[102] Section 90 (2), (3), (4) and (5)
Omit “Supreme Court” wherever occurring. Insert instead “court”.
[103] Section 90 (6)
Omit the subsection. Insert instead:(6) In this section:third party, in relation to a forfeiture order, restraining order or freezing notice, means a person who is not the subject of the order or notice.vary includes limit the manner in which an order or notice applies.
[104] Section 91 Duty not payable
Omit “stamp duty is payable under the Stamp Duties Act 1920”.Insert instead “duty is payable under the Duties Act 1997”.
[105] Section 91 (b)
Insert “or section 42S (return of property)” after “orders)”.
[106] Schedule 1 Savings, transitional and other provisions
Insert before clause 1:Part 1 Preliminary
[107] Schedule 1, clause 2 (1)
Insert at the end of clause 2 (1):Confiscation of Proceeds of Crime Amendment Act 2005 (but only to the extent that it amends this Act)
[108] Schedule 1, Part 2
Insert after clause 3:Part 2 Provisions consequential on Confiscation of Proceeds of Crime Amendment Act 20054 DefinitionIn this Part:amending Act means the Confiscation of Proceeds of Crime Amendment Act 2005.5 Freezing noticesDivision 1A of Part 3, as inserted by the amending Act, applies to or in respect of:(a) property acquired or seized before or after the commencement of that Division, and(b) persons who committed serious offences (whether or not they were charged with those offences) before or after the commencement of that Division.6 Interstate orders and other instrumentsThis Act, as amended by the amending Act, applies to or in respect of interstate forfeiture orders, interstate crime related property declarations and interstate restraining orders in force immediately before the commencement of this clause.
Schedule 2 Amendment of Civil Liability Act 2002
(Section 4)
[1] Part 7, Division 1, heading
Insert before section 51:Division 1 Limitations on damages
[2] Part 7, Division 2
Insert after section 54A:Division 2 Supervision of damages arising out of criminal conduct by persons suffering from mental illness54B DefinitionsIn this Division:award of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).damages supervision order means an order granted under section 54D.serious offence means an offence punishable by imprisonment for 6 months or more.54C Application of Division(1) This Division applies to an award of damages to which this Part applies if:(a) the award is made in respect of a civil liability that arises out of injury or damage to the person, and(b) the injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and(c) the conduct contributed materially to the injury or damage or to the risk of injury or damage.(2) This Division does not apply to offender damages within the meaning of Division 6 of Part 2A.(3) This Division does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned:(a) constitutes an offence (whether or not a serious offence), or(b) would have constituted an offence (whether or not a serious offence) if the defendant had not been suffering from a mental illness at the time of the conduct.(4) This Division does not apply to an award of damages made before the commencement of this Division.54D Damages supervision orders(1) A court that makes an award of damages must make an order directing the Public Trustee to take control of the amount of damages if it is satisfied, on the balance of probabilities, that the amount of damages is an amount to which this Division applies and that it is in the best interests of the person to whom the damages were awarded to make the order.(2) The Public Trustee must ensure that an amount of damages subject to a damages supervision order is used to cover the costs of past, present and future medical or other therapeutic treatment, rehabilitation costs and care costs of the person awarded the damages, subject to the terms of the order.(3) A damages supervision order may not take effect before the later of the final determination of any appeal relating to the award of damages or the end of the period during which any such appeal may be made.(4) A damages supervision order may be made whether or not the person awarded the damages is a mentally ill person (within the meaning of the Mental Health Act 1990) or a mentally incapacitated person when the order is made.(5) Any part of an award payable or paid for properly payable legal expenses incurred in connection with proceedings for damages may not be made subject to a damages supervision order.(6) The Public Trustee holds the amount of damages in trust for the person awarded the damages.54E Additional matters relating to damages supervision orders(1) A damages supervision order may:(a) require an amount of damages to be paid to the Public Trustee instead of, or by or on behalf of, the person awarded the damages, and(b) regulate the manner in which the Public Trustee may exercise his or her functions under the order, and(c) determine any matter relating to the payment of amounts of the damages, including:(i) the purposes for which amounts may be disbursed, and(ii) the obligations of the Public Trustee and the person awarded the damages, and(d) make such other provision as the court thinks fit in the circumstances of the case.(2) A damages supervision order ceases to have effect:(a) if it is revoked by a court, or(b) on the death of the person awarded the damages.(3) If a damages supervision order ceases to have effect, any remaining amount of damages, or the proceeds of an amount of damages, is (subject to any order of a court and to payment of any fees or other expenses of the Public Trustee) to be paid to the person awarded the damages or the legal personal representative of the person.54F Estates under supervision of Protective Commissioner(1) A damages supervision order may be made in relation to a person even though the estate of the person is subject to management under the Protected Estates Act 1983.(2) The Protected Estates Act 1983 does not apply to or in respect of property of a person whose estate is subject to management under that Act to the extent that the property is the subject of a damages supervision order.54G Hindering or obstructing Public Trustee(1) A person must not hinder or obstruct the Public Trustee in the performance of the Public Trustee’s obligations under a damages supervision order.Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.(2) In this section:Public Trustee includes members of staff within the meaning of the Public Trustee Act 1913 and agents of the Public Trustee.54H Evidence of Public Trustee’s right to actIf a damages supervision order is made directing the Public Trustee to take control of property, a certificate under the hand of the Public Trustee or an officer referred to in section 50 of the Public Trustee Act 1913 and sealed with the Public Trustee’s seal:(a) certifying that the damages supervision order has been made and is in force, andis to be accepted by all courts, officers and other persons, whether acting under any Act or not, as evidence of the matters so certified and stated and of the Public Trustee’s right to act under the damages supervision order, without production of any other proof.(b) stating the terms of the order,
[3] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):Confiscation of Proceeds of Crime Amendment Act 2005 (but only to the extent that it amends this Act)
Schedule 3 Amendment of Crimes Act 1900
(Section 5)
Part 4, Division 1A
Insert after Division 1:Division 1A Money laundering193A DefinitionsIn this Division:deal with includes:(a) receive, possess, conceal or dispose of, or(b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or(c) engage directly or indirectly in a transaction, including receiving or making a gift.instrument of crime means property that is used in the commission of, or to facilitate the commission of, a serious offence.proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.serious offence means:(a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or(b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or(c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales.193B Money laundering(1) A person who deals with proceeds of crime:(a) knowing that it is proceeds of crime, andis guilty of an offence.(b) intending to conceal that it is proceeds of crime,Maximum penalty: imprisonment for 20 years.(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.Maximum penalty: imprisonment for 15 years.(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.Maximum penalty: imprisonment for 10 years.(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.193C Dealing with property suspected of being proceeds of crime(1) A person who deals with property that is property that there are reasonable grounds to suspect is proceeds of crime is guilty of a summary offence.Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.(2) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country.193D Dealing with property that subsequently becomes an instrument of crime(1) If:(a) a person deals with property intending that the property will become an instrument of crime, andthe person is guilty of an offence.(b) the property subsequently becomes an instrument of crime,Maximum penalty: imprisonment for 15 years.(2) If:(a) a person deals with property being reckless as to whether the property will become an instrument of crime, andthe person is guilty of an offence.(b) the property subsequently becomes an instrument of crime,Maximum penalty: imprisonment for 10 years.(3) Proceedings for an offence under this section must not be commenced without the consent of the Director of Public Prosecutions.(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.(5) In this section:property means money or other valuables.193E Alternative verdicts(1) If on the trial of a person for an offence under section 193B (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (2) or (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.(2) If on the trial of a person for an offence under section 193B (2), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193B (3), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.(3) If on the trial of a person for an offence under section 193D (1), the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 193D (2), it may find the accused not guilty of the offence charged but guilty of the other offence, and the accused is liable to punishment accordingly.193F Proof of other offences not required(1) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Division that property is proceeds of crime, to establish that:(a) a particular offence was committed in relation to the property, or(b) a particular person committed an offence in relation to the property.(2) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Division that property will be an instrument of crime, to establish:(a) an intention or risk that a particular offence will be committed in relation to the property, or(b) an intention or risk that a particular person will commit an offence in relation to the property.193G Transitional provisionThis Division applies to or in respect of acts or omissions in relation to proceeds of crime arising from serious offences committed before or after the commencement of this Division.
Schedule 4 Amendment of Forfeiture Act 1995
(Section 6)
[1] Long title
Insert “to apply the forfeiture rule to certain persons who are found not guilty on the grounds of mental illness;” after “benefits;”.
[2] Part 1, heading
Insert before section 1:Part 1 Preliminary
[3] Section 3 Definitions
Insert in alphabetical order:forfeiture application order means an order made under section 11.
[4] Part 2, heading
Insert before section 5:Part 2 Forfeiture modification orders
[5] Part 3
Omit section 10. Insert instead:Part 3 Forfeiture application orders10 DefinitionsIn this Part:interested person does not include an offender or a person claiming through an offender.offender means a person who has killed another person and been found not guilty of murder by reason of mental illness.11 Power of Supreme Court to apply forfeiture rule(1) If a person who has killed another person is not subject to the forfeiture rule because the person has been found not guilty of murder by reason of mental illness, any interested person may make an application to the Supreme Court for an order that the rule apply as if the offender had been found guilty of murder.(2) On any such application, the Court may make an order applying the forfeiture rule to the offender if it is satisfied that justice requires the rule to be applied as if the offender had been found guilty of murder.(3) In determining whether justice requires the rule to be applied, the Court is to have regard to the following matters:(a) the conduct of the offender,(b) the conduct of the deceased person,(c) the effect of the application of the rule on the offender or any other person,(d) such other matters as to the Court appear material.(4) If a forfeiture application order is made, the forfeiture rule is to apply in respect of the offender for all purposes (including purposes relating to anything done before the order was made) as if the offender had been found guilty of murder.12 Time for applications for forfeiture application orders(1) Unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture application order must be made within 6 months after the day on which it is determined that the offender was not guilty of murder.(2) The Court may give leave for a late application if the Court considers it just in all the circumstances to give leave.13 Revocation of forfeiture application orders(1) If the Supreme Court has made a forfeiture application order, an interested person may make an application to the Court for the revocation of the order if the Court considers it just in all the circumstances to give leave for such an application to be made.(2) On any such application, the Court may revoke the forfeiture application order concerned.(3) Section 11 (2) and (3) apply to the determination of any such application in the same way as they apply to the making of a forfeiture application order. In determining whether to revoke the forfeiture application order, the Court is also to have regard to the effect on the offender and other persons of any such revocation.(4) If a forfeiture application order is revoked, the forfeiture rule has, and is taken to have had, no effect in relation to the offender for all purposes (including purposes relating to anything done before the order was revoked), subject to the terms on which the Court revokes the order.14 Transitional provision(1) A forfeiture application order may be made in respect of any of the following:(a) a killing occurring before or after the commencement of this Part,(b) the application of the forfeiture rule in probate or administration proceedings commenced before or after the commencement of this Part, but not probate or administration proceedings determined before the commencement of this Part.(2) Nothing in this Part affects any determination of a court concerning the application of the forfeiture rule in any proceedings that was made before the commencement of this Part.