Court may exclude property from restraining order
34 Court may exclude property from restraining order
The court to which an application for a restraining order under section 24(1)(a) or
was made may, when the order is made or at a later time, exclude specified property from the order if—
an application is made under section 35 or
36; and
the court is satisfied that—
the property is neither proceeds nor an instrument of unlawful activity; and
—
if the suspect has been convicted of the serious offence to which the restraining order relates—
• the suspect has not become a prescribed drug offender as a result of the conviction; or
• the suspect has become a prescribed drug offender as a result of the conviction, but the property was not owned by or subject to the effective control of the suspect on the conviction day for that offence or is property that should not be subject to the restraining order in accordance with section 24(5a); or
if the suspect has not been convicted of the serious offence to which the restraining order relates—
• the suspect would not become a prescribed drug offender if convicted of the offence; or
• the suspect would become a prescribed drug offender if convicted of the offence, but the property is not owned by or subject to the effective control of the suspect or is property that should not be subject to the restraining order in accordance with section 24(5a); and
the owner's interest in the property was lawfully acquired;
and
it would not be contrary to the public interest for the property to be excluded from the order.
However—
the court must not exclude property from a restraining order unless satisfied that neither a pecuniary penalty order nor a literary proceeds order could be made against—
the person who owns the property; or
if the property is not owned by the suspect but is subject to his or her effective control—the suspect; and
the court must not exclude property from a restraining order unless satisfied that the property could not be subject to an instrument substitution declaration if the suspect were convicted of the offence.
Despite any other provision of this section, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that might result from conviction for the offence, the property cannot be excluded from a restraining order relating to the offence on application made by the convicted person.
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