Criminal Assets Confiscation Act 2005

The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if—

a person applies for the order; and

the applicant has become a prescribed drug offender as a result of being convicted of the serious offence to which the restraining order relates;

the applicant owns the property; and

the court is satisfied that the property is neither proceeds nor an instrument of unlawful activity; and

the court is satisfied that it would be appropriate to reduce the effect of forfeiture because—

the person has cooperated with a law enforcement agency by providing a witness statement and an undertaking to provide oral testimony;

that cooperation was not taken into account by the court in sentencing the person; and

the cooperation relates directly to a serious and organised crime offence that has been committed or may be committed in the future.

In determining whether to exclude property under this section, the court must have regard to such of the following as may be relevant:

the nature and extent of the applicant's cooperation;

the timeliness of the cooperation;

the truthfulness, completeness and reliability of any information or evidence provided by the applicant;

the evaluation (if any) by the authorities of the significance and usefulness of the applicant's cooperation;

any benefit that the applicant has gained or is likely to gain by reason of the cooperation;

the degree to which the safety of the applicant (or some other person) has been put at risk of violent retribution as a result of the applicant's cooperation;

the likelihood that the applicant will commit further offences, and may have regard to any other factor or principle the court thinks relevant.

To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this

If the court is of the view that an exclusion order made in respect of particular property in accordance with this section would alert other persons to the applicant's cooperation and as a result put the applicant at risk of violent retribution, it may make an exclusion order—

specifying the nature, extent and value (at the time of making the order) of the property concerned; and

direct the Crown to pay the applicant an amount equal to the value specified in paragraph (a).

The applicant must give written notice to the DPP of both the application and the grounds on which the order is sought.

The DPP—

may appear and adduce evidence at the hearing of the application;

must give the applicant notice of any grounds on which it proposes to contest the application.

This section is in addition to, and does not derogate from, section 76.