CONFISCATION ACT 1997 - SECT 97 Return of seized property

CONFISCATION ACT 1997 - SECT 97

    (1)     If property has been seized under a warrant and—

S. 97(1)(a) amended by No. 87/2004 s. 22(2)(f).

        (a)     by the end of the period of 7 days after the property was seized, no person has been charged with the Schedule 1 offence in reliance on the commission of which the warrant was issued, and an application for a restraining order or a forfeiture order has not been made in respect of the property; or

        (b)     a person has been charged with and convicted of such an offence but by the end of the period of 6 months after the date of conviction or the end of the appeal period (if any) an application for a restraining order or a forfeiture order has not been made in respect of the property or such an application has been made but a forfeiture order has not been made or the property has been excluded from the restraining order or the forfeiture order or has been discharged or excluded on appeal under section 142; or

S. 97(1)(c) amended by Nos 87/2004 s. 22(2)(g), 68/2010 s. 58.

        (c)     a person has been charged with such an offence and acquitted and by the end of the period of 7 days after the acquittal the property is not restrained by a civil forfeiture restraining order in relation to a Schedule 2 offence; or

S. 97(1)(d) amended by Nos 87/2004 s. 22(2)(g), 68/2009 s. 97(Sch. item 23.61), 68/2010 s. 58.

        (d)     a person has been charged with and convicted of such an offence but the conviction is set aside and a new trial has not been ordered at the time of the setting aside of the conviction and by the end of the period of 7 days after the setting aside of the conviction the property is not restrained by a civil forfeiture restraining order in relation to a Schedule 2 offence—

then the Chief Commissioner of Police must arrange for the property to be returned to the person from whose possession it was seized or to such other person as the Minister or a prescribed person authorised by the Minister for the purposes of this subsection directs.

    (2)     If—

S. 97(2)(a) amended by No. 63/2003 s. 26(1).

        (a)     property has been seized under a search warrant or a seizure warrant; and

        (b)     an application has been made under this Act to a court for a forfeiture order or civil forfeiture order in respect of the property; and

        (c)     the court refuses to make the order being sought—

the court must make an order directing that the property be returned to the person from whose possession it was seized or to such other person as the Minister or a prescribed person authorised by the Minister for the purposes of this subsection directs forthwith or, if the refusal was a refusal to make a civil forfeiture order, at the time and in the circumstances specified in the order if the court considers that an application may yet be made for a forfeiture order.

S. 97(3) amended by No. 63/2003 s. 26(2).

    (3)     If property has been seized under a search warrant or a seizure warrant other than property seized under a warrant referred to in subsection (11) or sold under section 96, the person from whose possession the property was seized or any other person who claims an interest in the property may apply to the Magistrates' Court for an order—

        (a)     directing that the property be returned to that person; or

        (b)     directing that the person be allowed access to the property—

and the Court may, if it considers it appropriate, make such an order on such terms and conditions (if any) as it thinks fit.

S. 97(3A) inserted by No. 63/2003 s. 26(3).

    (3A)     If property has been seized under a search warrant or a seizure warrant (other than property seized under a warrant referred to in subsection (11) or sold under section 96), a prescribed person may apply to the Magistrates' Court for an order—

        (a)     directing that the property be returned to—

              (i)     the person from whose possession the property was seized; or

              (ii)     any other person who claims an interest in the property; or

        (b)     directing that access to the property be given to—

              (i)     the person from whose possession the property was seized; or

              (ii)     any other person who claims an interest in the property—

and the Court may, if it considers it appropriate, make such an order on such terms and conditions (if any) as it thinks fit.

S. 97(4) amended by No. 63/2003 s. 26(4)(a).

    (4)     The applicant for an order under subsection (3) or (3A) must give written notice of the application and of the date, time and place fixed for the hearing of it—

        (a)     to the DPP, to a prescribed person or a person belonging to a prescribed class of persons or to the appropriate officer, as the case requires; and

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

S. 97(5) amended by No. 63/2003 s. 26(4)(a).

    (5)     Any person notified under subsection (4) 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 an order under subsection (3) or (3A).

S. 97(6) amended by No. 63/2003 s. 26(4)(a).

    (6)     If the Magistrates' Court makes an order under subsection (3) or (3A), an application for a variation, or the revocation, of the order may at any time be made to the Magistrates' Court by—

        (a)     the person referred to in subsection (4)(a); or

        (b)     the person from whose possession the property was seized; or

        (c)     any other person who claims an interest in the property.

    (7)     An applicant under subsection (6) must give written notice of the application and of the date, time and place fixed for the hearing of it—

        (a)     if the person referred to in subsection (4)(a) is the applicant, to the person from whose possession the property was seized and any other person whom the applicant has reason to believe has an interest in the property; and

        (b)     in any other case, to the person referred to in subsection (4)(a).

    (8)     Any person notified under subsection (7) 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 an order under subsection (9).

    (9)     On an application under subsection (6) the Magistrates' Court may, if it considers it appropriate—

        (a)     if the application is for a variation of the order, vary the order on any terms and conditions that it thinks fit; or

        (b)     if the application is for the revocation of the order, revoke the order on any terms and conditions that it thinks fit.

S. 97(10) amended by No. 63/2003 s. 26(4)(a).

    (10)     A person must not knowingly contravene an order made under subsection (3) or (3A).

Penalty:     Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

S. 97(11) amended by No. 63/2003 s. 26(4)(b)(i)(ii).

    (11)     This section (except subsections (3) and (3A)) applies to a search warrant or a seizure warrant issued in reliance on the commission of an interstate offence as if the references in it to a forfeiture order included references to an interstate forfeiture order.

Pt 11A (Headings and ss 97A– 97W) inserted by No. 63/2003 s. 27.

Part 11A—Property management warrants

Division 1—Search and inspection warrants

S. 97A inserted by No. 63/2003 s. 27.