Australian Capital Territory Current Acts

CONFISCATION OF CRIMINAL ASSETS ACT 2003 - SECT 85

    (1)     On application under section 83, the court must make an order under this section for the payment by the offender of the value of benefits derived by the offender from the commission of a serious offence if the court is satisfied on the balance of probabilities—

        (a)     for an application for a penalty order that relates only to artistic profits—that the offender committed a serious offence at any time; and

        (b)     for any other application—that the offender committed a serious offence within the relevant period.

Note 1     For the meaning of relevant period , see s (5).

Note 2     The court must be satisfied on the balance of probabilities about the commission of the offence because confiscation proceedings are civil, not criminal (see s 237).

    (2)     To remove any doubt, if the relevant court is satisfied that the offender committed a serious offence within the relevant period, the court must not refuse to make a penalty order only because it is not satisfied—

        (a)     that a particular serious offence was committed by the offender within the relevant period; or

        (b)     that the offence was committed on any particular day or time within the relevant period.

    (3)     Also, to remove any doubt, the relevant court must not refuse to make a penalty order in relation to the serious offence only because—

        (a)     an indictment has not been presented against the offender for the offence; or

        (b)     the offender has not been convicted of the offence; or

        (c)     the offender has been cleared of the offence, including being cleared after having been convicted of the offence; or

        (d)     a doubt is raised about whether the offender committed the offence.

Note     Indictment is defined in the Legislation Act

, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present .)

    (4)     Further, to remove any doubt, the relevant court must not refuse to make a penalty order only because—

        (a)     a relevant court had previously made a penalty order under this section in relation to the offender for the same serious offence (or a related offence); and

        (b)     the order had later ended because the offender was cleared of the offence.

Note     The earlier penalty order would have ended when the offender was cleared (see s 98 (a)).

    (5)     In this section:

"relevant period" means—

        (a)     if a restraining order is in force over any property in relation to the serious offence—

              (i)     6 years before the day the application to restrain the property was made; or

              (ii)     if an extended period for making the restraining order application was allowed under section 246 (Confiscation proceedings—time extensions for applications)—the total of the 6-year period and the extended period; or

        (b)     if a restraining order is not in force over any property in relation to the serious offence—

              (i)     6 years before the day the application for the penalty order was made; or

              (ii)     if an extended period for making the penalty order application was allowed under section 246—the total of the 6-year period and the extended period.