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CRIMINAL PROCEDURE (POLICE CUSTODY OF
PROPERTY) AMENDMENT BILL 1991 (No. 2)
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The objects of this Bill are:
(a) to transfer the provisions of section 358A of the Crimes Act 1900 relating to
the disposal of property in the custody of the police from that Act to the
Criminal Procedure Act 1986; and
(b) to amend those provisions to enable the police to dispose of livestock before
proceedings relating to the livestock have been determined.
At present, because of the operation of section 358A of the Crimes Act 1900,
property held in police custody in connection with an offence (for example, stolen
goods) may not be delivered to a person in the absence of a court order. Such an order is
usually not made until after the conclusion of the proceedings relating to the property.
The provisions of this Bill will operate to reduce the time for which police are required
to hold livestock (for example, stolen cattle) in custody pending the disposal of criminal
proceedings relating to the livestock, and to reduce the costs to the police of maintaining
the livestock while in custody, without prejudicing the rights of persons who may be
lawfully entitled to the livestock and without weakening the evidence for the
prosecution.
The Bill amends the Criminal Procedure Act 1986 to insert a new Part, Part
13--Police Custody of Property, into that Act. Section 358A of the Crimes Act 1900 is
repealed consequentially.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act.
Clause 3 amends the Criminal Procedure Act 1986 to insert a new Part into that
Act. The new Part contains the following provisions:
Division 1--General
Proposed section 61 provides that the Part is to apply to property which is in
police custody in connection with an offence (other than livestock to which section
19 of the Stock Diseases Act 1923 applies).
Proposed section 62 provides that a court may, on application, order property in
police custody to be delivered to a person who appears to be lawfully entitled to it.
Proposed section 63 provides that property remaining in police custody within 1
month after proceedings against a person for an offence concerning the property are
determined, if the property is money, is to be paid into the Consolidated Fund or, if
other property, may be sold at public auction. After sale, the expenses of keeping the
property in police custody may be deducted and any balance is to be paid into the
Consolidated Fund.
Proposed section 64 enables a person who is lawfully entitled to any money paid
into the Consolidated Fund in accordance with proposed section 63 to recover it from
that Fund.
Proposed section 65 specifies which court has jurisdiction to deal with an
application under the proposed Part by reference to the value of the property
concerned.
Proposed section 66 provides that no restriction on other powers of a court to make
orders relating to property in police custody is to be imputed from the provisions of
the Part.
Division 2--Livestock
Proposed section 67 contains definitions of "livestock" and "ownership".
Proposed section 68 specifies the procedure that is to apply if there is no dispute as
to the ownership of the livestock and the owner is known. The police may deliver the
livestock to the owner after a suitable record has been made of the livestock for
evidentiary purposes. The costs of custody are to be borne by the police.
Proposed section 69 specifies the procedure that is to apply if there is no dispute as
to the ownership of the livestock but the owner is not known. A court, on the
application of a police officer, is empowered to order the sale of the livestock after 28
days' notice of the intention to seek the court's order has been given to any possible
owners and to the public at large. A suitable record is required to be made for
evidentiary purposes. The police are to bear the costs of keeping the livestock in
custody for the first 28 days and may recover the costs incurred after that time from
the proceeds of sale. Otherwise, the proceeds are to be paid into the Consolidated
Fund.
Proposed section 70 specifies the procedure that is to apply if there is a dispute as
to the ownership of the livestock. A court, on the application of a police officer, is
empowered to order the sale of the livestock if no party to the dispute undertakes to
pay the expenses of keeping the livestock in police custody or a party who has given
such an undertaking fails to comply with it. A court may order that the parties
disputing ownership are to pay the expenses of keeping the livestock in police
custody in such proportions as the court determines. The same provisions as under
Proposed section 71 provides that any benefit (such as produce or progeny)
derived from livestock while in police custody is to belong to the owner.
Proposed section 72 requires notice to
given to parties disputing ownership of
livestock which is sold under the Part of the rights of the owner to recover the sale
proceeds from the Treasurer.
Proposed section 73 enables the owner of livestock which is sold under the Part to
recover the sale proceeds from the Treasurer.
Proposed section 74 provides that the provisions of Division 2 are in addition to
those of Division 1.
Clause 4 repeals section 358A of the Crimes Act 1900.
Clause 5 is a transitional provision which provides that the amendments made by
the proposed Act apply in relation to property (including livestock) which, on the
commencement of the proposed Act, is in police custody in connection with an offence.