CONFISCATION ACT 1997 - SECT 36U Application for exclusion from civil forfeiture restraining order

CONFISCATION ACT 1997 - SECT 36U

    (1)     If the Supreme Court or the County Court makes a civil forfeiture restraining order against property, any person claiming an interest in the property may apply to the Court that made that order for a section 36V exclusion order.

    (2)     An application under subsection (1) must be made—

        (a)     if notice is required to be given under section 36N, within 30 days after service of notice of the making of the civil forfeiture restraining order; or

        (b)     in any other case, within 30 days after the making of the civil forfeiture restraining order.

S. 36U(3) amended by No. 77/2013 s. 7(1).

    (3)     Subject to subsection (3A), the court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.

S. 36U(3A) inserted by No. 77/2013 s. 7(2).

    (3A)     The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.

    (4)     An applicant must give notice of the application, and, subject to subsection (9), of the grounds on which it is made—

        (a)     to the applicant for the civil forfeiture restraining order; and

        (b)     to any other person whom the applicant has reason to believe has an interest in the property.

    (5)     Any person referred to in subsection (4) is entitled to appear and to give evidence at the hearing of an application for a section 36V exclusion order but the absence of that person does not prevent the court from making a section 36V exclusion order.

    (6)     If the person referred to in subsection (4)(a) proposes to contest an application for a section 36V exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.

    (7)     If—

S. 36U(7)(a) amended by No. 55/2014 s. 8(1)(a).

        (a)     a court makes a civil forfeiture restraining order against property; and

S. 36U(7)(b) amended by No. 55/2014 s. 8(1)(b).

        (b)     a person claiming an interest in the property is charged with an offence—

any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

    (8)     If—

S. 36U(8)(a) amended by No. 55/2014 s. 8(2)(a).

        (a)     a court makes a civil forfeiture restraining order against property; and

S. 36U(8)(b) amended by No. 55/2014 s. 8(2)(b).

        (b)     a person claiming an interest in the property is charged with an offence—

any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

    (9)     If—

S. 36U(9)(a) amended by No. 55/2014 s. 8(3)(a).

        (a)     a court makes a civil forfeiture restraining order against property; and

S. 36U(9)(b) amended by No. 55/2014 s. 8(3)(b).

        (b)     a person claiming an interest in the property is charged with a Schedule 2 offence; and

        (c)     that person applies for a section 36V exclusion order—

the person need not give notice of the grounds on which the application is made until the charge against the person is finally determined or is withdrawn.

    (10)     Any person referred to in subsection (4) may apply to the court for an order that the hearing of the application for a section 36V exclusion order be stayed until the charge referred to in subsection (9)(b)—

        (a)     is finally determined; or

        (b)     is withdrawn.

Notes

1     Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property.

2     Section 36W enables the court to make orders varying the property to which the civil forfeiture restraining order relates.

S. 36V inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21– 23).