Australian Capital Territory Numbered Acts

PROCEEDS OF CRIME ACT 1991 (NO. 103 OF 1991) - SECT 28

28. (1) If—

        (a)     a person (in this subsection called the “defendant”) is convicted of a serious offence (otherwise than by reason of paragraph 5 (1) (d));

        (b)     a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on—

              (i)     the defendant's conviction of that offence; or

              (ii)     the charging or proposed charging of the defendant with that offence or a related offence;

        (c)     the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under subsection 51 (5); and

        (d)     the restraining order is in force at the end of the period of 6 months commencing on the day of the conviction;

the property is, under this subsection, forfeited to the Territory at the end of that period.

(2) Subject to subsection (3), where property is forfeited to the Territory by virtue of subsection (1), the property vests absolutely in the Territory.

(3) Where registrable property is forfeited to the Territory by virtue of subsection (1)—

        (a)     the property vests in equity in the Territory but does not vest in the Territory at law until the applicable registration requirements have been complied with;

        (b)     the Territory is entitled to be registered as owner of the property; and

        (c)     the Minister has power, on behalf of the Territory, to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Territory as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(4) Where property is forfeited to the Territory under this section in respect of a person's conviction of a serious offence—

        (a)     the property shall not, except with the leave of the court that made the relevant restraining order and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Territory, before the end of the appeal period in respect of the conviction; and

        (b)     if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, then, subject to any direction under subsection (5), the Public Trustee shall, as soon as practicable after the end of the appeal period—

              (i)     if the property is money—after paying the Public Trustee's remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the Trust Fund as required by section 34 ; and

              (ii)     if the property is not money—sell or otherwise dispose of the property and, after paying the Public Trustee's remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the Trust Fund as required by section 34.

(5) Where property is forfeited under this section because of a person's conviction of a serious offence, the Minister, or a prescribed officer authorised by the Minister for the purposes of this subsection, may, at or after the end of the appeal period in respect of the conviction but before the property is dealt with under paragraph (4) (b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

(6) Without limiting the generality of subsection (5), the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(7) Where property is forfeited to the Territory under subsection (1), the Minister may give all directions that are necessary or convenient to realise the Territory's interest in the property.

(8) Without limiting the generality of subsection (7), where registrable property is forfeited to the Territory under subsection (1), the Minister may direct a public servant or a police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

(9) A reference in this section to the appeal period in relation to the conviction of a person of an offence is—

        (a)     in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and

        (b)     in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5 (1) (c)—a reference to the appeal period in relation to the conviction of the person of the other offence referred to in that paragraph.

(10) Where a court makes a restraining order in reliance on—

        (a)     a person's conviction of a serious offence; or

        (b)     the charging or proposed charging of a person with such an offence;

a person may apply to the court for a declaration that property that was subject to the restraining order has been forfeited to the Territory under subsection (1) and the court, if satisfied that the property has been forfeited to the Territory under that subsection, shall make a declaration accordingly.

(11) In this section—