CONFISCATION ACT 1997 - SECT 33 Determination of application for forfeiture order
CONFISCATION ACT 1997 - SECT 33
Determination of application for forfeiture orderS. 33(1) amended
by Nos 43/1998
s. 36(b), 44/2022 s. 22(1).
(1) On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property, or such portion of the property as is specified by the court in the order, be forfeited to the Minister.
S. 33(2) substituted by No. 44/2022 s. 22(2).
(2) A forfeiture order—
(a) must specify interests in property to which it applies; and
(b) may specify the nature, extent or value of the property to which it applies.
(3) If an application is made under section 32(1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may make a forfeiture order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.
S. 33(4) amended by No. 69/2009 s. 54(Sch. Pt 1 item 9.1).
(4) On an application under section 32(1) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit, including evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.
(5) In considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to—
(a) the use that is ordinarily made, or had been intended to be made, of the property; and
S. 33(5)(b) substituted by No. 55/2014 s. 14(1).
(b) subject to subsection (5A), any undue hardship that may reasonably be likely to be caused to any person by the order; and
(c) the claim of any person to an interest in the property having regard to the matters specified in section 50(1).
S. 33(5A) inserted by No. 55/2014 s. 14(2).
(5A) For the purposes of subsection (5)(b), when having regard to any hardship caused to the person convicted of the offence in relation to which the forfeiture order is sought, the court must not take into account the impact on that person of the sentence given for that offence.
S. 33(6) amended by No. 54/2000 s. 25(2).
(6) A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 32(1) until the application under the Sentencing Act 1991 has been determined.
(7) The making of a forfeiture order does not prevent the making of a pecuniary penalty order.