40Return of seized property

#### 40 Return of seized property (1) Where property has been seized under this Division (otherwise than because it may afford evidence of the commission of an offence), a person who claims an interest in the property may apply to the relevant Supreme Court for an order that the property be returned to the person. (2) Where a person makes an application under subsection (1) and the court is satisfied that: (a) the person is entitled to possession of the property; (b) the property is not tainted property in relation to the relevant offence; and (c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property; the court shall order the responsible custodian to return the property to the person and where such an order is made the responsible custodian shall arrange for the property to be returned to the person. (3) Where: (a) property has been seized under this Division (otherwise than because it may afford evidence as to the commission of an offence); (b) at the time when the property was seized, an information had not been laid in respect of a relevant offence; and (c) at the end of the period of 48 hours after the time when the property was seized, an information has not been laid in respect of a relevant offence; the responsible custodian shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period. (4) Where: (a) property has been seized under this Division (otherwise than because it may afford evidence as to the commission of an offence); (b) either of the following conditions is satisfied: (i) before the property was seized, a person had been convicted of a relevant offence or an information had been laid in respect of a relevant offence; (ii) before the property was seized, an information had not been laid in respect of a relevant offence, but an information was laid in respect of a relevant offence within 48 hours after the time when the property was seized; and (c) no forfeiture order has been made against the property within the period of 14 days after the property was seized; the responsible custodian shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period. (5) Where: (a) property has been seized under this Division (otherwise than because it may afford evidence as to the commission of an offence); (b) but for this subsection, the responsible custodian would be required to arrange for the property to be returned to a person as soon as practicable after the end of a particular period; and (c) before the end of that period, a restraining order is made in relation to the property; the following provisions have effect: (d) if the restraining order directs the Official Trustee to take custody and control of the property—the responsible custodian shall arrange for the property to be given to the Official Trustee in accordance with the restraining order; (e) if the court that made the restraining order has made an order under subsection (6) in relation to the property—the responsible custodian shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act. (6) Where: (a) property has been seized under this Division (otherwise than because it may afford evidence as to the commission of an offence); (b) a restraining order is made in relation to the property; and (c) at the time when the restraining order is made, the property is in the possession of the responsible custodian; the responsible custodian may apply to the court that made the restraining order for an order that the responsible custodian retain possession of the property and the court may, if satisfied that there are reasonable grounds for believing that the property may afford evidence as to the commission of a relevant offence or any other offence, make an order that the responsible custodian may retain the property for so long as the property is so required as evidence as to the commission of that offence. (7) Where the responsible custodian applies to a court for an order under subsection (6), 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. (8) Where: (a) property has been seized under this Division (otherwise than because it may afford evidence as to the commission of an offence); (b) an application is made for a restraining order or a forfeiture order in respect of the property; (c) the application is refused; and (d) at the time when the application is refused, the property is in the possession of the responsible custodian; the responsible custodian shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the refusal. (9) Where: (a) property has been seized under this Division; and (b) while the property is in the possession of the responsible custodian, a forfeiture order is made in respect of the property; the responsible custodian shall deal with the property as required by the order. (10) In this section: > responsible custodian, in relation to property seized under this Division, means: (a) if subsection 39(1) applies to the property—the Commissioner; or (b) if subsection 39(2) applies to the property—to the Chief Executive Officer of the ACC.