PROCEEDS OF CRIME ACT 1987 - SECT 48 Court may make further orders

PROCEEDS OF CRIME ACT 1987 - SECT 48

  (1)   Where a court makes a restraining order, the court may, at the time when it makes the restraining order or at any later time, make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:

  (a)   an order varying the property to which the restraining order relates;

  (b)   an order varying any condition to which the restraining order is subject;

  (c)   an order for the examination on oath before the court or the registrar of the court of any person, including:

  (i)   a person whose property is the subject of the restraining order (in this section called the owner ); or

  (ii)   a person who is the defendant within the meaning of section   43 in relation to the offence to which the restraining order relates (in this subsection called the defendant );

    about the affairs (including the nature and location of any property) of:

  (iii)   anyone else who is either the owner or the defendant, or both; and

  (iv)   if the person to be examined is either the owner or the defendant or both--that person;

  (d)   an order with respect to the carrying out of any undertaking with respect to the payment of damages or costs given by the Commonwealth in connection with the making of the restraining order;

  (da)   an order directing:

  (i)   the owner; or

  (ii)   if the owner is not the defendant--the defendant; or

  (iii)   if the owner or the defendant is a body corporate--a director of the body corporate specified by the court;

    to give to:

  (iv)   where the restraining order is, or includes, an order made under paragraph   43(2)(b)--the Official Trustee; and

  (v)   in any other case--the applicant for the ancillary order or such other person as the court directs;

    within a period specified in the ancillary order, a statement sworn on oath setting out such particulars of the property, or dealings with the property, of the owner or the defendant, as the case may be, as the court thinks proper;

  (e)   where the restraining order directed the Official Trustee to take custody and control of property:

  (i)   an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order;

  (ii)   an order determining any question relating to the property to which the restraining order relates, including any question relating to:

  (A)   the liabilities of the owner; or

  (B)   the exercise of the powers, or the performance of the duties, of the Official Trustee;

    with respect to the property to which the restraining order relates;

  (iii)   an order directing the owner or another person to do any act or thing necessary or convenient to be done to enable the Official Trustee to take custody and control of the property in accordance with the restraining order.

  (2)   An order under subsection   ( 1) may be made on application by:

  (a)   the DPP;

  (b)   the owner;

  (c)   where the restraining order directed the Official Trustee to take custody and control of property--the Official Trustee; or

  (d)   with the leave of the court--any other person.

  (2A)   An ancillary order made before or after the commencement of this subsection in relation to a restraining order that is in force on or after that commencement does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under paragraph   57(2)(e) or (g).

  (3)   Where:

  (a)   a person (in this subsection called the defendant ) has been convicted of, or has been charged or is about to be charged with, an offence;

  (b)   a court, in reliance on the conviction, charging or proposed charging makes a restraining order against property; and

  (c)   a person having an interest in the property applies to the court for a variation of the order to exclude the person's interest from the order;

the court shall grant the application if:

  (d)   where the applicant is not the defendant and the offence is an ordinary indictable offence:

  (i)   if the restraining order was made against the property by virtue of subparagraph   44(7)(a)(ii)--the court is satisfied that the interest is not tainted property and that:

  (A)   a pecuniary penalty order cannot be made against the defendant; or

  (B)   the applicant's interest in the property is not subject to the effective control of the defendant; or

  (ii)   in any other case--the court is satisfied that the interest is not tainted property;

  (e)   where the applicant is the defendant and the offence is an ordinary indictable offence--the court is satisfied that:

  (i)   the interest is not tainted property; and

  (ii)   a pecuniary penalty order cannot be made against the defendant;

  (f)   where the applicant is not the defendant, the restraining order was not made by virtue of subsection   44(7A) and the offence is a serious offence--the court is satisfied that:

  (i)   the applicant was not, in any way, involved in the commission of the offence; and

  (ii)   where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the offence--the applicant acquired the interest:

  (A)   for sufficient consideration; and

  (B)   without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property;

  (fa)   where the applicant is not the defendant and the restraining order was made by virtue of subsection   44(7A)--the court is satisfied that:

  (i)   the applicant was not, in any way, involved in the commission of the offence;

  (ii)   the property is not tainted property in relation to the offence; and

  (iii)   the applicant's interest in the property is not subject to the effective control of the defendant; or

  (g)   in any case--the court is satisfied that it is in the public interest to do so having regard to all the circumstances, including:

  (i)   any financial hardship or other consequence of the interest remaining subject to the order;

  (ii)   the seriousness of the offence; and

  (iii)   the likelihood that the interest will be:

  (A)   subject to a forfeiture order;

  (B)   subject to section   30; or

  (C)   required to satisfy a pecuniary penalty order.

  (4)   Where:

  (a)   a person (in this subsection called the defendant ) has been convicted of, or has been charged or is about to be charged with, a serious offence;

  (b)   a court, in reliance on the conviction, charging or proposed charging, makes a restraining order against property;

  (c)   the defendant has an interest in the property;

  (d)   the defendant applies to the court for a declaration under this subsection in relation to the interest; and

  (e)   the court is satisfied that:

  (i)   the property was not used in, or in connection with, any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity; and

  (ii)   the defendant's interest in the property was lawfully acquired;

the court may, by order, declare that the restraining order, to the extent to which it relates to the property, shall be disregarded for the purposes of section   30.

  (5)   Where a person is examined before a court or the registrar of a court pursuant to an order under subsection   ( 1), the person is not excused from answering a question when required to do so by the court or the registrar, as the case may be, on the ground that the answer to the question might tend to incriminate the person or make the person liable to forfeiture or a penalty.

  (6)   Where a person is examined before a court or the registrar of a court pursuant to an order under subsection   ( 1), a statement or disclosure made by the person in answer to a question put in the course of the examination, and any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure, is not admissible against the person in any criminal proceedings except a proceeding for giving false testimony in the course of the examination.

  (6A)   A person whom an order under paragraph   ( 1)(da) directs to give a statement is not excused from giving the statement, or from setting out particulars in the statement, on the ground that the statement or particulars, as the case may be, might tend to incriminate the person or make the person liable to a forfeiture or penalty.

  (6B)   Where a person gives a statement under an order made under paragraph   ( 1)(da), neither the statement, nor any information, document or thing obtained as a direct or indirect consequence of the statement, is admissible against the person in any criminal proceedings except a proceeding in respect of the falsity of the statement.

  (7)   For the purposes of subsection   ( 6) or (6B), proceedings on an application for a restraining order, a forfeiture order or a pecuniary penalty order are not criminal proceedings.

  (8)   Where the DPP applies to a court for an order under subsection   ( 1), 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.