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 S. 22(b)(i)(D) substituted by No. 42/2007 s. 6(4), amended by No. 68/2009 s. 97(Sch. item 23.20). (D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and S. 22(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.20). (E) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 22(b)(ii) amended by No. 42/2007 s. 6(5)(a). (ii) if the court is satisfied that the property is not tainted property or derived property and that— S. 22(b)(ii)(A) substituted by No. 42/2007 s. 6(5)(b), amended by No. 68/2009 s. 97(Sch. item 23.20). (A) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and S. 22(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.20). (B) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 22(c) amended by Nos 42/2007 s. 6(1)(c), 68/2009 s. 97(Sch. item 23.20). (c) where the application is made by the executor or administrator of the estate of a deceased accused, 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— S. 22(c)(i) amended by No. 68/2009 s. 97(Sch. item 23.20). (i) the accused is dead; and S. 22(c)(ii) amended by Nos 43/1998 s. 12, 68/2009 s. 97(Sch. item 23.20). (ii) there are reasonable grounds to believe that the interest claimed by the estate of the accused was lawfully acquired by the accused; and S. 22(c)(iii) substituted by No. 42/2007 s. 6(6). (iii) the property is not derived property; and S. 22(c)(iiia) inserted by No. 42/2007 s. 6(6), amended by No. 68/2010 s. 14(2) (as amended by No. 81/2011 s. 22(5)). (iiia) the property is not tainted property and is not, or will not be, subject to a tainted property substitution declaration under section 36F; and (iv) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the **Sentencing Act 1991**. S. 22(1A) inserted by No. 79/2014 s. 46. (1A) If the applicant alleges that transactions have occurred relating to the transfer of property that would support the application for the exclusion order, the court hearing the application may accept evidence other than documentary evidence of those transactions if— (a) that other evidence is provided in addition to documentary evidence of the transaction; or (b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason. S. 22(2) inserted by No. 68/2010 s. 14(3). (2) If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property. Note to s. 22 inserted by No. 27/2016 s. 9(3). Property excluded from a restraining order made for the purpose of satisfying automatic forfeiture of property that may occur under Division 2 of Part 3 (i.e. automatic forfeiture on the conviction of an accused of certain offences) may continue to be restrained if a restraining order has also been made in relation to the property for the purpose referred to in section 15(1)(c). S. 22A inserted by No. 55/2014 s. 25.