Commonwealth Numbered Acts

PROCEEDS OF CRIME ACT 1987 No. 87, 1987 - SECT 40

40. (1) Where property has been seized under this Division (otherwise than
because it may afford evidence of the commission of an offence), a person who
claims an interest in the property may apply to the relevant Supreme Court for
an order that the property be returned to the person.

(2) Where a person makes an application under subsection (1) and the court is
satisfied that:

   (a)  the person is entitled to possession of the property;

   (b)  the property is not tainted property in relation to the relevant
        offence; and

   (c)  the person in respect of whose conviction, charging or proposed
        charging the seizure of the property was made has no interest in the
        property; the court shall order the responsible custodian to return
        the property to the person and where such an order is made the
        responsible custodian shall arrange for the property to be returned to
        the person.

(3) Where:

   (a)  property has been seized under this Division (otherwise than because
        it may afford evidence as to the commission of an offence);

   (b)  at the time when the property was seized, an information had not been
        laid in respect of a relevant offence; and

   (c)  at the end of the period of 48 hours after the time when the property
        was seized, an information has not been laid in respect of a
        relevant offence; the responsible custodian shall, subject to
        subsections (5) and (6), arrange for the property to be returned to
        the person from whose possession it was seized as soon as practicable
        after the end of that period.

(4) Where:

   (a)  property has been seized under this Division (otherwise than because
        it may afford evidence as to the commission of an offence);

   (b)  before the property was seized a person had been convicted of a
        relevant offence or an information had been laid in respect of a
        relevant offence; and

   (c)  no forfeiture order has been made against the property within the
        period of 14 days after the property was seized; the
        responsible custodian shall, subject to subsections (5) and (6),
        arrange for the property to be returned to the person from whose
        possession it was seized as soon as practicable after the end of that
        period.

(5) Where:

   (a)  property has been seized under this Division (otherwise than because
        it may afford evidence as to the commission of an offence);

   (b)  but for this subsection, the responsible custodian would be required
        to arrange for the property to be returned to a person as soon as
        practicable after the end of a particular period; and

   (c)  before the end of that period, a restraining order is made in relation
        to the property; the following provisions have effect:

   (d)  if the restraining order directs the Official Trustee to take custody
        and control of the property-the responsible custodian shall arrange
        for the property to be given to the Official Trustee in accordance
        with the restraining order;

   (e)  if the court that made the restraining order has made an order under
        subsection (6) in relation to the property-the responsible custodian
        shall arrange for the property to be kept until it is dealt with in
        accordance with another provision of this Act.

(6) Where:

   (a)  property has been seized under this Division (otherwise than because
        it may afford evidence as to the commission of an offence);

   (b)  a restraining order is made in relation to the property; and

   (c)  at the time when the restraining order is made, the property is in the
        possession of the responsible custodian; the responsible custodian may
        apply to the court that made the restraining order for an order that
        the responsible custodian retain possession of the property and the
        court may, if satisfied that there are reasonable grounds for
        believing that the property may afford evidence as to the commission
        of a relevant offence or any other offence, make an order that the
        responsible custodian may retain the property for so long as the
        property is so required as evidence as to the commission of that
        offence.

(7) Where the responsible custodian applies to a court for an order under
subsection (6), a witness shall not be required to answer a question or to
produce a document if the court is satisfied that the answering of the
question or the production of the document may prejudice the investigation of,
or the prosecution of a person for, an offence.

(8) Where:

   (a)  property has been seized under this Division (otherwise than because
        it may afford evidence as to the commission of an offence);

   (b)  an application is made for a restraining order or a forfeiture order
        in respect of the property;

   (c)  the application is refused; and

   (d)  at the time when the application is refused, the property is in the
        possession of the responsible custodian; the responsible custodian
        shall arrange for the property to be returned to the person from whose
        possession it was seized as soon as practicable after the refusal.

(9) Where:

   (a)  property has been seized under this Division; and

   (b)  while the property is in the possession of the responsible custodian,
        a forfeiture order is made in respect of the property; the
        responsible custodian shall deal with the property as required by the
        order.

(10) In this section:

"responsible custodian", in relation to property seized under this
Division,means:

   (a)  if subsection 39 (1) applies to the property-the Commissioner; or

   (b)  if subsection 39 (2) applies to the property-to the Chairman of the
        National Crime Authority.