Western Australian Numbered Acts Western Australian Numbered Acts (1) The court may set
aside a freezing notice or freezing order for property that was frozen on the
ground that it is crime-used if the objector establishes that it is more
likely than not that the property is not crime-used.
(2) If the court finds
that the property is crime-used, or is not required to decide whether the
property is crime-used, the court may make an order under subsection (3)
or (4).
(3) The court may set
aside the freezing notice or freezing order for the property if the objector
establishes that it is more likely than not that —
(a) the
objector is the spouse or a dependant of an owner of the property;
(b) the
objector is an innocent party, or is less than 18 years old;
(c) the
objector was usually resident on the property at the time the
relevant confiscation offence was committed, or is most likely to have been
committed;
(d) the
objector was usually resident on the property at the time the objection was
filed;
(e) the
objector has no other residence at the time of hearing the objection;
(f) the
objector would suffer undue hardship if the property is confiscated; and
(g) it
is not practicable to make adequate provision for the objector by some other
means.
(4) The court may set
aside the freezing notice or freezing order if the objector establishes that
it is more likely than not that —
(a) the
objector is the owner of the property, or is one of 2 or more owners of the
property;
(b) the
property is not effectively controlled by a person who made criminal use of
the property;
(c) the
objector is an innocent party in relation to the property; and
(d) each
other owner (if there are more than one) is an innocent party in relation to
the property.
(5) If the objector
establishes the matters set out in subsection (4)(a), (b) and (c), but
fails to establish the matter set out in subsection (4)(d), the
court may order that, when the property is sold after confiscation, the
objector is to be paid an amount equal to the amount that bears to the value
of the property the same proportion as the objector’s share of the
property bears to the whole property.
(6) In an order under
subsection (5), the court is to specify the proportion that it finds to
be the objector’s share of the property.
(7) On the application
of the DPP or an owner of the property, the court may set aside the
freezing notice or freezing order for the property if it also orders the
objector to pay to the State an amount equal to the value of the property.
(8) Sections 22(6),
22(7), 23, 24, 25 and 26 apply in relation to making an order under subsection
(7) and to the objector as if the order was a
crime-used property substitution declaration and the objector was the
respondent in relation to the declaration.