CONFISCATION ACT 1997 - SECT 22A Determination of exclusion application—serious drug offence restraining order

CONFISCATION ACT 1997 - SECT 22A

S. 22A(1) substituted by No. 44/2022 s. 15.

    (1)     On an application made under section 20 the court may make an order excluding the applicant's interest in property from the operation of a serious drug offence restraining order made in relation to a serious drug offence—

        (a)     if the court is satisfied that—

              (i)     the property is not tainted property or derived property; and

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

              (iii)     the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

    (A)     the date that the accused was charged with the serious drug offence; or

    (B)     the date that the serious drug offence restraining order was made in relation to the property; and

              (iv)     where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; or

        (b)     if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—

              (i)     where the applicant acquired the interest before the commission, or alleged commission, of the serious drug offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the serious drug offence; and

              (ii)     where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the serious drug offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

              (iii)     the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

    (A)     the date that the accused was charged with the serious drug offence; or

    (B)     the date that the restraining order was made in relation to the property; and

              (iv)     where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; and

              (v)     the applicant was not, in any way, involved in the commission of the serious drug offence.

    (2)     If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.

Note

Property excluded from a serious drug offence restraining order may continue to be restrained if a restraining order has also been made in relation to the property for the purpose referred to in section 15(1)(b).

S. 23 amended by No. 42/2007 s. 7(1).