Part 17 Property in police custody
Division 1 Confiscated knives and other dangerous articles and implements
(cf Summary Offences Act 1988, s 28B)
(1) This Division applies to the following:(a) a dangerous article seized under this Act,(b) a dangerous implement confiscated under section 28.(2) If provision is made by or under any other Act for the seizure or confiscation of a dangerous article or a dangerous implement to which this Division applies, the article or implement is to be dealt with as so provided and the provisions of this Division do not apply to the confiscation.
212 Application for return of seized dangerous articles or confiscated dangerous implements
(cf Summary Offences Act 1988, s 28C)
(1) The person from whom a dangerous article or dangerous implement is seized or confiscated or its owner may, within 28 days after it is seized or confiscated, apply to the Local Area Commander of Police in the area in which it was seized or confiscated for its return.(2) An application for the return of the article or implement must be in writing and state why the article or implement should in all the circumstances be returned.(3) If the person seeking the return of the article or implement is under the age of 18 years, the application for its return may be made only by a parent or guardian of the person, or a person who has lawful care or custody of the person, on his or her behalf.(4) The Local Area Commander is not required to return an article or implement if:(a) proceedings have been commenced against the person in respect of the article or implement and the proceedings have not been withdrawn or finally determined by the person’s having been found not guilty of the offence, or(b) the person making the application, or on whose behalf an application is made, is the subject of a firearms prohibition order under the Firearms Act 1996, or(c) possession of the article or implement would otherwise constitute an offence.
213 Appeals to Local Court against refusals to return seized dangerous articles or confiscated dangerous implements
(cf Summary Offences Act 1988, s 28D)
(1) If the Local Area Commander of Police fails or refuses to return a seized dangerous article or confiscated dangerous implement at the expiration of 28 days after it is seized or confiscated to a person who has made an application for its return under this Division, the person may appeal against the failure or refusal to a Local Court within a further 28 days.(2) On hearing such an appeal, a Local Court may order that the article or implement:(a) be forfeited to the Crown, or(b) be returned to the applicant or some other appropriate person.(3) The Local Court may not order that the article or implement be returned to the person if proceedings have been commenced against a person in respect of the article or implement and the proceedings have not been withdrawn or finally determined by the person’s having been found not guilty of the offence.
214 Forfeiture of seized dangerous articles and confiscated dangerous implements
(cf Summary Offences Act 1988, s 28E)
(1) A seized dangerous article or confiscated dangerous implement is forfeited to the Crown:(a) if an application for the return of the article or implement is not made within 28 days after it is seized or confiscated—at the expiration of that period, or(b) in a case where such an application is made within that period and the article or implement is not returned within that period:(i) if an appeal under this Division is not made within the period permitted by this Division—at the expiration of that period, or(ii) if an appeal under this Division is made within the period permitted by this Division—when an order made by a Local Court that the article or implement be forfeited to the Crown takes effect.(2) The Local Area Commander of Police (or such other person as the Commissioner may direct) may dispose of an article or implement forfeited to the Crown under this section in accordance with the directions of the Commissioner.(3) In this section, a reference to the disposal of an article or implement includes a reference to its destruction.(4) The proceeds of any sale of an article or implement disposed of under this section are to be paid to the Treasurer for payment into the Consolidated Fund.
Division 2 Other property in police custody
In this Division:livestock means animals (including birds and fish).
ownership of livestock includes any form of lawful entitlement.
(1) This Division applies to the following property:(a) property that is in the custody of a police officer or member of NSW Police in connection with an offence, whether or not proceedings for the offence have been commenced,(b) property that is lawfully in the custody of a police officer or member of NSW Police other than in connection with an offence.(2) However, this Division does not apply to the following property:(a) a dangerous article or dangerous implement to which Division 1 applies,(b) livestock to which section 19 of the Stock Diseases Act 1923 applies.
217 Right to inspect seized documents
Unless a Magistrate otherwise orders, a police officer who, in exercising a function conferred by or under this Act, seizes a document must allow a person who would be entitled to the document:(a) to inspect it at any reasonable times and from time to time, and(b) to take extracts from or make copies of it.
(1) A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that:(a) its retention as evidence is not required, and(b) it is lawful for the person to have possession of the thing.(2) This section is subject to any order made under section 219.
219 Disposal of property on application to court
(1) A court may, on application by any person, make an order that property to which this Division applies:(a) be delivered to the person who appears to be lawfully entitled to the property, or(b) if that person cannot be ascertained, be dealt with as the court thinks fit.(2) In determining an application the court may do any one or more of the following things:(a) adjust rights to property as between people who appear to be lawfully entitled to the same property or the same or different parts of property,(b) make a finding or order as to the ownership and delivery of property,(c) make a finding or order as to the liability for and payment of expenses incurred in keeping property in police custody,(d) order, if the person who is lawfully entitled to the property cannot be ascertained, that the property be forfeited to the Crown,(e) make any necessary incidental or ancillary orders.(3) Property ordered to be forfeited to the Crown:(a) in the case of money, is to be paid to the Treasurer for payment into the Consolidated Fund, or(b) in any other case, may be sold by or on behalf of the Commissioner at public auction and the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund.(4) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner.
220 Disposal of property connected with an offence after determination of proceedings
(1) Property that is in the custody of a police officer or member of NSW Police in connection with an offence and that is not delivered to the person lawfully entitled to it (by virtue of section 218, an order of a court under this Division or otherwise) within 1 month after determination of proceedings against a person for an offence connected with the property, or within 1 month after the police officer determines that it is no longer required for use as evidence, is to be dealt with in accordance with subsection (2).(2) The property:(a) in the case of money, is to be paid to the Treasurer for payment into the Consolidated Fund, or(b) in any other case, may be sold by or on behalf of the Commissioner at public auction and the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund.(3) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner.
221 Disposal of unclaimed property not connected with an offence
(1) Property that is lawfully in the custody of a police officer or a member of NSW Police other than in connection with an offence and that is not delivered to the person lawfully entitled to it (by virtue of section 218, an order of a court under this Division or otherwise) may be dealt with in accordance with this section.(2) The Commissioner may use any such property for the purposes of an integrity testing program conducted under section 207A of the Police Act 1990.(3) The property:(a) in the case of money, is to be paid to the Treasurer for payment into the Consolidated Fund, or(b) in any other case, may be sold at public auction by the Commissioner and the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund.(4) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner.
222 Procedure where no dispute as to ownership of livestock and owner known
(cf Criminal Procedure Act 1986, s 140)
(1) A police officer may deliver livestock at any time before the determination of proceedings against a person for an offence concerning the livestock to a person who the officer believes on reasonable grounds is the owner of the livestock if there does not appear to the officer to be any dispute as to ownership of the livestock.(2) Livestock is not to be delivered until a suitable record of the livestock has been made for evidentiary purposes. The record is to include a valuation of the livestock made by a competent valuer.(3) Expenses incurred in keeping the livestock in police custody, in making the record and in obtaining the valuation under subsection (2) are to be borne by the Commissioner.
223 Procedure where no dispute as to ownership of livestock but owner not known
(cf Criminal Procedure Act 1986, s 141)
(1) A police officer may apply to a court at any time before the determination of proceedings against a person for an offence concerning livestock for an order to sell the livestock at public auction if, after making reasonable inquiries, there does not appear to the officer to be any dispute as to the ownership of the livestock but the officer does not know who or where the owner is.(2) The court may make an order for the sale of the livestock at public auction but must not make such an order unless it is satisfied that 28 days notice of the intention to make the application for the order has been given:(a) to any person who, in the court’s opinion, may be an owner of the livestock, and(b) in a newspaper circulating throughout the State.(3) In making an order for the sale of livestock, the court must specify the amount that is to be deducted from the proceeds of sale and paid to the Commissioner in reimbursement of the expenses incurred by the Commissioner in keeping the livestock in police custody. Expenses incurred in keeping the livestock in police custody for the first 28 days are to be borne by the Commissioner.(4) Livestock must not be sold following an order of the court until a suitable record of the livestock has been made for evidentiary purposes. The record need not include a valuation of the livestock.(5) The proceeds of sale of the livestock (after deducting, to the extent of the funds available, and paying to the Commissioner any amount specified by the court) together with a copy of the record made under this section are to be forwarded to the Treasurer and the proceeds are to be paid into the Consolidated Fund.
224 Procedure if there is a dispute as to ownership of livestock
(cf Criminal Procedure Act 1986, s 142)
(1) A police officer may apply to a court at any time before the determination of proceedings against a person for an offence concerning livestock for an order to sell the livestock at public auction if there is a dispute as to the ownership of livestock and:(a) no party to the dispute undertakes to pay the expenses of keeping the livestock in police custody, or(b) a party who has given such an undertaking fails to comply with the undertaking.(2) The court may make an order for the sale of the livestock at public auction or it may make an order that one or more of the parties disputing ownership pay the expenses of keeping the livestock in police custody in such proportions as it determines.(3) The court must not make an order for the sale of the livestock at public auction unless it is satisfied that 28 days notice of the intention to make the application for the order has been given:(a) to any person who, in the court’s opinion, may be an owner of the livestock, and(b) in a newspaper circulating throughout the State.(4) In making an order for the sale of the livestock, the court must specify the amount that is to be deducted from the proceeds of the sale and paid to the Commissioner in reimbursement of the expenses incurred by the Commissioner in keeping the livestock in police custody.(5) Livestock must not be sold following an order of the court until a suitable record of the livestock has been made for evidentiary purposes. The record need not include a valuation of the livestock.(6) The owner of the livestock is (except insofar as a court otherwise determines) entitled to recover, jointly or severally, from the other parties to the dispute the expenses incurred by the owner in keeping the livestock in police custody.(7) The proceeds of the sale of the livestock (after deducting, to the extent of the funds available, and paying to the Commissioner any amount specified by the court) together with a copy of the record made under this section are to be forwarded to the Treasurer to be paid into the Consolidated Fund.
225 Disposition of benefit derived from livestock
(cf Criminal Procedure Act 1986, s 143)
Any income or benefit derived from livestock while in police custody (such as offspring born during custody or, in the case of poultry, eggs) is to be held or applied on behalf of the owner of the livestock.
226 Notification of right to recover proceeds of sale
(cf Criminal Procedure Act 1986, s 144)
If, at the time at which livestock are sold in accordance with section 223:(a) the parties disputing ownership of the livestock have not resolved their dispute, and(b) a court has not determined who the owner of the livestock is,a police officer is required to notify each such party of the rights of the owner under section 225.
227 Livestock provisions in addition to other provisions
Sections 222–226 are in addition to the other provisions of this Division relating to property.
228 Application to Treasurer for recovery of money or proceeds of sale
A person who is lawfully entitled to any property that has been dealt with in accordance with section 219, 220, 221 or 222–226 may recover from the Treasurer the money or proceeds of sale held by the Treasurer. This Act authorises the Treasurer to pay the amount out of the Consolidated Fund (which is appropriated to the necessary extent).
229 Courts having jurisdiction under this Division
(1) The court to which an application under this Division may be made is:(a) a Local Court for the district in which the property is held, if the estimated value of the property (or the amount of the money) does not exceed $40,000, or(b) the District Court, if the estimated value of the property (or the amount of the money) exceeds $40,000 but does not exceed $250,000, or(c) the Supreme Court, if the estimated value of the property (or the amount of the money) exceeds $250,000.(2) Despite subsection (1), a court that is dealing with an offence may deal with an application relating to property connected with that offence even though the value of the property exceeds or is less than the amount specified by subsection (1) in relation to that court.