22Determination of exclusion application—restraining order in relation to Schedule 2 offence

22 Determination of exclusion application—restraining order in relation to Schedule 2 offence

S. 22(1) amended by No. 27/2016 s. 9(2).

(1) On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture under section 35—

S. 22(a) amended by Nos 43/1998
s. 39(a), 42/2007 s. 6(1)(a).

(a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that—

(i) the property in which the applicant claims an interest was lawfully acquired by the applicant; and

S. 22(a)(ii) substituted by No. 87/2004 s. 11(b), amended by No. 68/2010 s. 14(2) (as amended by No. 81/2011 s. 22(5)).

(ii) the property is not tainted property and is not, or will not be, subject to a tainted property substitution declaration under section 36F; and

S. 22(a)(iia) inserted by No. 42/2007 s. 6(2).

(iia) the property is not derived property; and

(iii) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991; or

S. 22(b) amended by Nos 42/2007 s. 6(1)(b), 68/2009 s. 97(Sch. item 23.20).

(b) where the application is made by a person other than the accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order—

S. 22(b)(i) amended by No. 42/2007 s. 6(3).

(i) if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived property but is satisfied that—

S. 22(b)(i)(A) amended by No. 87/2004 s. 11(c).

(A) the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and

S. 22(b)(i)(B) amended by Nos 87/2004 s. 11(c), 68/2009 s. 97(Sch. item 23.20).

(B) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and

S. 22(b)(i)(C) amended by Nos 87/2004 s. 11(c), 42/2007 s. 6(3).

(C) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and