Commonwealth Numbered Acts

PROCEEDS OF CRIME ACT 1987 No. 87, 1987 - SECT 48

48. (1) Where a court makes a restraining order, the court may, at the time
when it makes the restraining order or at any later time, make any ancillary
orders that the court considers appropriate and, without limiting the
generality of this, the court may make any one or more of the following
orders:

   (a)  an order varying the property to which the restraining order relates;

   (b)  an order varying any condition to which the restraining order is
        subject;

   (c)  an order for the examination on oath of the person (in this section
called the "respondent") whose property is subject to the restraining order or
another person before the court or the registrar of the court concerning the
affairs of the respondent, including the nature and location of the property
of the respondent;

   (d)  an order with respect to the carrying out of any undertaking with
        respect to the payment of damages or costs given by the Commonwealth
        in connection with the making of the restraining order;

   (e)  where the restraining order directed the Official Trustee to take
        custody and control of property:

        (i)    an order regulating the manner in which the Official Trustee
               may exercise its powers or perform its duties under the
               restraining order;

        (ii)   an order determining any question relating to the property to
               which the restraining order relates, including any question
               relating to the liabilities of the respondent, and the exercise
               of the powers, or the performance of the duties, of the
               Official Trustee with respect to the property to which the
               restraining order relates;

        (iii)  an order directing the respondent to furnish to the Official
               Trustee, within a period specified in the order, a statement,
               verified by the oath of the respondent, setting out such
               particulars of the property of the respondent as the court
               thinks proper.

(2) An order under subsection (1) may be made on application by:

   (a)  the DPP;

   (b)  the respondent;

   (c)  where the restraining order directed the Official Trustee to take
        custody and control of property-the Official Trustee; or

   (d)  with the leave of the court-any other person.

(3) Where:
(a) a person (in this subsection called the "defendant") has been convicted
of, or has been charged or is about to be charged with, an offence;

   (b)  a court, in reliance on the conviction, charging or proposed charging
        makes a restraining order against property; and

   (c)  a person having an interest in the property applies to the court for a
        variation of the order to exclude the person's interest from the
        order; the court shall grant the application if:

   (d)  where the applicant is not the defendant and the offence is an
        ordinary indictable offence:

        (i)    if the restraining order was made against the property by
               virtue of subparagraph 44 (7) (a) (ii)-the court is satisfied
               that:

                (A)  the interest is not tainted property; and

                (B)  a pecuniary penalty order cannot be made against the
                     defendant; or

        (ii)   in any other case-the court is satisfied that the interest is
               not tainted property;

   (e)  where the applicant is the defendant and the offence is an ordinary
        indictable offence-the court is satisfied that:

        (i)    the interest is not tainted property; and

        (ii)   a pecuniary penalty order cannot be made against the defendant;

   (f)  where the applicant is not the defendant, the restraining order was
        not made by virtue of subparagraph 44 (7) (a) (ii) and the offence is
        a serious offence-the court is satisfied that:

        (i)    the applicant was not, in any way, involved in the commission
               of the offence; and

        (ii)   where the applicant acquired the interest at the time of or
               after the commission, or alleged commission, of the offence-the
               applicant acquired the interest:

                (A)  for sufficient consideration; and

                (B)  without knowing, and in circumstances such as not to
                     arouse a reasonable suspicion, that the property was
                     tainted property; or

   (g)  in any case-the court is satisfied that it is in the public interest
        to do so having regard to all the circumstances, including:

        (i)    any financial hardship or other consequence of the interest
               remaining subject to the order;

        (ii)   the seriousness of the offence; and

        (iii)  the likelihood that the interest will be:

                (A)  subject to a forfeiture order;

                (B)  subject to section 30; or

                (C)  required to satisfy a pecuniary penalty order.

(4) Where:
(a) a person (in this subsection called the "defendant") has been convicted
of, or has been charged or is about to be charged with, a serious offence;

   (b)  a court, in reliance on the conviction, charging or proposed charging,
        makes a restraining order against property;

   (c)  the defendant has an interest in the property;

   (d)  the defendant applies to the court for a declaration under this
        subsection in relation to the interest; and

   (e)  the court is satisfied that:

        (i)    the property was not used in, or in connection with, the
               commission of the offence; and

        (ii)   the defendant's interest in the property was lawfully acquired;
               the court may, by order, declare that the restraining order, to
               the extent to which it relates to the property, shall be
               disregarded for the purposes of section 30.

(5) Where a person is examined before a court or the registrar of a court
pursuant to an order under subsection (1), the person is not excused from
answering a question when required to do so by the court or the registrar, as
the case may be, on the ground that the answer to the question might tend to
incriminate the person or make the person liable to a penalty.

(6) Where a person is examined before a court or the registrar of a court
pursuant to an order under subsection (1), a statement or disclosure made by
the person in answer to a question put in the course of the examination, and
any information, document or thing obtained as a direct or indirect
consequence of the statement or disclosure, is not admissible against the
person in any criminal proceedings except a proceeding for giving false
testimony in the course of the examination.

(7) For the purposes of subsection (6), proceedings on an application for a
restraining order, a forfeiture order or a pecuniary penalty order are not
criminal proceedings.

(8) Where the DPP applies to a court for an order under subsection (1), 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.