What is an asset forfeiture order?
If a person has been convicted of a serious offence, the State can apply to seize possessions that are believed to be connected with the crime. This is done through an Asset Forfeiture Order (AFO).
An AFO is a court-issued document giving the State permission to confiscate and dispose of property that has allegedly been used in or connected to the commission of a serious offence. The law relating to AFO’s are governed by the Criminal Assets Recovery Act (NSW) 1990.
When are asset forfeiture orders used?
AFO’s can be used in a number of different circumstances.
They are commonly used when property or possessions have allegedly been used to carry out offences, for example a vehicle that was used by a drug dealer to carry out drugs offences may become the subject of an AFO once the person has been convicted.
They can also be used in the case of property that it is believed to have been purchased by the proceeds of a major offence, for instance the profits made from drug trafficking or another serious crime.
Once confiscated, interest in the property is transferred to the Crown and vested with the NSW Trustee and Guardian who can sell or otherwise dispose of the property. Any proceeds made on the sale of confiscated property go to the State Treasury.
How can an AFO be obtained?
To obtain an AFO, the NSW Crime Commission is required to make an application to the Supreme Court. Once this application has been received, written notice will be given to anyone who has an interest in the property.
AFO’s are issued after a court hearing and it is expected that anyone who has an interest in the property and wishes to contest the AFO will appear at the hearing and provide evidence to support their claim.
Can you stop an asset forfeiture order from going ahead?
Yes, it is possible to appeal an AFO and prevent it going ahead, although it usually requires the help of an experienced criminal defence lawyer.
Depending on the situation, there are a few different grounds for appealing an AFO, including that the property wasn’t derived from proceeds of crime or used in the commission of a serious offence, and that it would cause extreme hardship if the assets were forfeited to the State.
An appeal must be lodged within 28 days of the AFO being made.
If you own property that is the subject of an AFO, or if you have received notification that property you have an interest in is under application for an AFO, it’s a good idea to speak to a criminal lawyer or in the case of a serious drugs offence, a drug defence lawyer. It may be possible to appeal the AFO, and keep your property.