PROCEEDS OF CRIME ACT 1987 - SECT 44 Grounds for making restraining order
PROCEEDS OF CRIME ACT 1987 - SECT 44
Grounds for making restraining order(1) Where the offence concerned is a serious offence, the court shall, subject to subsections ( 3), (4), (7A) and (10), make a restraining order against the property.
(2) Where the offence concerned is an ordinary indictable offence the court shall, subject to subsections ( 3), (4), (5), (6), (7) and (10), make a restraining order against the property unless the court is satisfied that it is not in the public interest to make such an order.
(3) If the defendant has not been convicted of the offence concerned, the court shall not make a restraining order unless:
(a) the application for the order is supported by an affidavit of a police officer stating that the officer believes that the defendant committed the offence; and
(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.
(4) Where the application is made in reliance on the proposed charging of the defendant with the offence concerned, the court shall not make a restraining order unless it is satisfied that the defendant will be charged with the offence or a related offence within 48 hours.
(a) the offence concerned is an ordinary indictable offence; and
(b) the application seeks a restraining order against specified property of the defendant;
the court shall not make a restraining order against the property unless:
(c) the application is supported by an affidavit of a police officer stating that the officer believes that:
(i) the property is tainted property in relation to the offence; or
(ii) the defendant derived a benefit, directly or indirectly, from the commission of the offence; and
(d) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.
(a) the offence is an ordinary indictable offence; and
(b) the application seeks a restraining order against:
(i) all the property of the defendant;
(ii) all the property of the defendant other than specified property; or
(iii) specified property of the defendant and all other property of the defendant;
the court shall not make a restraining order against the property unless:
(c) the application is supported by an affidavit of a police officer stating that the officer believes that the defendant derived a benefit, directly or indirectly, from the commission of the offence; and
(d) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.
(7) Where the application seeks a restraining order against specified property of a person other than the defendant and the offence concerned is an ordinary indictable offence, the court shall not make a restraining order against the property unless:
(a) the application is supported by an affidavit of a police officer stating that:
(i) the officer believes that the property is tainted property in relation to the offence; or
(ii) the officer believes that:
(A) the property is subject to the effective control of the defendant; and
(B) the defendant derived a benefit, directly or indirectly, from the commission of the offence; and
(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.
(7A) Where the application seeks a restraining order against specified property of a person other than the defendant and the offence concerned is a serious offence, the court shall not make a restraining order against the property unless:
(a) the application is supported by an affidavit of a police officer stating that:
(i) the officer believes that the property is tainted property in relation to the offence; or
(ii) the officer believes that the property is subject to the effective control of the defendant; and
(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.
(9) The court may make a restraining order in respect of property whether or not there is any risk of the property being disposed of, or otherwise dealt with, in such manner as would defeat the operation of this Act.
(10) A court may refuse to make a restraining order if the Commonwealth refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.
(11) For the purposes of an application under section 43, the DPP may, on behalf of the Commonwealth, give to the court such undertakings with respect to the payment of damages or costs, or both, as are required by the court.
(12) An affidavit made by a police officer for the purposes of
this section that states that the officer believes a particular matter shall
set out the grounds on which the officer holds that belief.