Commonwealth Consolidated Acts Commonwealth Consolidated Acts (1)
Where a person (in this section and section 44 called the
defendant ):
(a) has been convicted of an indictable offence; or
(b) has been, or is about to be, charged with an indictable offence;
the DPP may apply to the relevant Supreme Court for an order under
subsection (2) against one or more of the following:
(c) specified property of the defendant;
(d) all the property of the defendant (including property acquired
after the making of the order);
(e) all the property of the defendant (including property acquired
after the making of the order) other than specified property;
(f) specified property of a person other than the defendant.
(2)
Where the DPP applies to a court for an order under this subsection
against property, the court may, subject to section 44, by order:
(a) direct that the property, or such part of the property as is
specified in the order, is not to be disposed of, or otherwise dealt with, by
any person, except in such manner and in such circumstances (if any) as are
specified in the order; and
(b) if the court is satisfied that the circumstances so
require—direct the Official Trustee to take custody and control of the
property, or of such part of the property as is specified in the order.
(2A) The DPP is
not empowered to make an application under this section after the commencement
of the Proceeds of Crime Act 2002 .
(3)
A restraining order against a person’s property may be made
subject to such conditions as the court thinks fit and, without limiting the
generality of this, may make provision for meeting, out of the property or a
specified part of the property, all or any of the following:
(a) the person’s reasonable living expenses (including the
reasonable living expenses of the person’s dependants (if any)) and
reasonable business expenses;
(b) the person’s reasonable expenses in defending a criminal
charge;
(c) a specified debt incurred by the person in good faith (being a debt
to which neither paragraph (a) nor (b) applies).
(4)
A court shall not make provision of a kind referred to in
subsection (3) unless it is satisfied that the defendant cannot meet the
expense or debt concerned out of property that is not subject to a restraining
order.
(5)
Notwithstanding anything in the Bankruptcy Act, money that has come
into the custody and control of the Official Trustee under a restraining order
shall not be paid into the Common Investment Fund established under
section 20B of that Act.
(6)
Where the Official Trustee is given a direction under
paragraph (2)(b) in relation to property, the Official Trustee may do
anything that is reasonably necessary for the purpose of preserving the
property including, without limiting the generality of this:
(a) becoming a party to any civil proceedings affecting the property;
(b) ensuring that the property is insured;
(c) if the property consists, wholly or partly, of securities or
investments—realising or otherwise dealing with the securities or
investments; and
(d) if the property consists, wholly or partly, of a business:
(i) employing, or terminating the employment of, persons in the
business; and
(ii) doing any other thing that is necessary or convenient for carrying
on the business on a sound commercial basis.
(6A) Where the
Official Trustee is given a direction under paragraph (2)(b) in relation
to shares in a company, it is entitled:
(a) to exercise the rights attaching to the shares as if it were the
registered holder of the shares; and
(b) to do so to the exclusion of the registered holder.
(6B) Neither of
paragraph (6)(c) and subsection (6A) limits the generality of the
other.
(7)
Where the DPP applies to a court for an order under
subsection (2), a witness shall not be required to answer a question or
to produce a document if the court is satisfied that the answering of the
question or the production of the document may prejudice the investigation of,
or the prosecution of a person for, an offence.