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CONFISCATION ACT 1997 - SECT 40ZC Application for exclusion from unexplained wealth forfeiture

CONFISCATION ACT 1997 - SECT 40ZC

Application for exclusion from unexplained wealth forfeiture

    (1)     Subject to subsection (2), if property is forfeited to the Minister under section 40ZA, 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 unexplained wealth restraining order for a section 40ZD exclusion order excluding the interest in the property from unexplained wealth forfeiture.

    (2)     The application—

        (a)     must not be made except with the leave of the court; and

        (b)     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. 40ZC(3) amended by No. 44/2022 s. 17(1).

    (3)     Subject to subsections (4) and (4A), the court may grant a person leave under subsection (2)(a) 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 unexplained wealth restraining order was not due to neglect on the part of the applicant.

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

S. 40ZC(4A) inserted by No. 44/2022 s. 17(2).

    (4A)     The court may not grant a person leave under subsection (3) 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.

    (5)     An applicant must give written notice of the application, and, subject to subsection (10), of the grounds on which it is made—

        (a)     to the applicant for the unexplained wealth restraining order; and

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

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

    (6)     Any person notified under subsection (5) 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 40ZD exclusion order.

    (7)     If the applicant for the unexplained wealth restraining order proposes to contest an application under this section for a section 40ZD exclusion order, that applicant must give the applicant for the section 40ZD exclusion order written notice of the grounds on which the application for the section 40ZD exclusion order is to be contested.

    (8)     If 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.

    (9)     If 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.

    (10)     If—

        (a)     a person applies under this section for a section 40ZD exclusion order; and

        (b)     that person is charged with an offence relevant to the application for the section 40ZD exclusion order; and

        (c)     that person has made an application under subsection (11)—

the person need not give notice of the grounds on which the application for the section 40ZD exclusion order is made until the application under subsection (11) is determined.

    (11)     The applicant for the section 40ZD exclusion order or any person referred to in subsection (5)(a) or (b) may apply to the court for an order that the hearing of the application for the exclusion order be stayed until the charge referred to in subsection (10)(b)—

        (a)     is finally determined; or

        (b)     is withdrawn.

    (12)     The court may only order that the hearing of the application for a section 40ZD exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.

S. 40ZD inserted by No. 79/2014 s. 16.