CONFISCATION ACT 1997 - SECT 40A Application for exclusion from civil forfeiture order

CONFISCATION ACT 1997 - SECT 40A

    (1)     Subject to subsections (2) and (4), if property is forfeited to the Minister under section 38, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant civil forfeiture order under section 38 for a section 40B exclusion order excluding the interest in the property from the civil forfeiture order.

Note

Only the Supreme Court or the County Court can make a civil forfeiture order under section 38.

    (2)     Subject to subsection (3), the application must be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.

S. 40A(3) amended by Nos 77/2013 s. 9(1), 44/2022 s. 16(1).

    (3)     Subject to subsections (5A) and (5B), the court that made the relevant civil forfeiture order under section 38 may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay in making the application is not due to neglect on the part of the applicant.

    (4)     Except with the leave of the court, an application for a section 40B exclusion order in relation to an interest in property must not be made by a person who was given notice of—

        (a)     proceedings on the application for the civil forfeiture restraining order; or

        (b)     the making of the civil forfeiture restraining order.

S. 40A(5) amended by Nos 77/2013 s. 9(1), 44/2022 s. 16(1).

    (5)     Subject to subsections (5A) and (5B), the court may grant a person leave under subsection (4) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the property excluded from the civil forfeiture restraining order was not due to neglect on the part of the applicant.

S. 40A(5A) inserted by No. 77/2013 s. 9(2).

    (5A)     The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that has been disposed of in accordance with section 44.

S. 40A(5B) inserted by No. 44/2022 s. 16(2).

    (5B)     The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.

    (6)     An applicant must give written notice of the application, and, subject to subsection (11), of the grounds on which it is made—

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

S. 40A(6)(b) amended by No. 77/2013 s. 9(3)(a).

        (b)     to any person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited; and

S. 40A(6)(c) inserted by No. 77/2013 s. 9(3)(b).

        (c)     to a person prescribed for the purposes of section 44(1).

    (7)     Any person notified under subsection (6) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making a section 40B exclusion order.

    (8)     If the applicant for the civil forfeiture order proposes to contest an application under this section for a section 40B exclusion order, that applicant must give the applicant for the section 40B exclusion order written notice of the grounds on which the application for the section 40B exclusion order is to be contested.

    (9)     If—

S. 40A(9)(a) amended by No. 55/2014 s. 12(1)(a).

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

S. 40A(9)(b) amended by No. 55/2014 s. 12(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.

    (10)     If—

S. 40A(10)(a) amended by No. 55/2014 s. 12(2)(a).

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

S. 40A(10)(b) amended by No. 55/2014 s. 12(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.

    (11)     If—

S. 40A(11)(a) amended by No. 55/2014 s. 12(3)(a).

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

S. 40A(11)(b) amended by No. 55/2014 s. 12(3)(b).

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

        (c)     that person applies under this section for a section 40B 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.

    (12)     Any person referred to in subsection (6) may apply to the court for an order that the hearing of the application for a section 40B exclusion order be stayed until the charge referred to in subsection (11)(b)—

        (a)     is finally determined; or

        (b)     is withdrawn.

S. 40B inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21– 23).