|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Niue Sessional Legislation |
[Noteup]
[Download]
[Context
] [Help]
NIUE
No. 245
Arrangement of provisions
Part 1 - Preliminary
1. Short
title
2.
Commencement
3. Principal
objects
4.
Interpretation
5. Definition of
certain terms
Part 2 - Forfeiture orders, confiscation orders and related matters
Division 1 - General
6. Application for
forfeiture order or confiscation order on
conviction
7. Notice of
application
8. Amendment of
application
9. Procedure on
application
10. Application for
forfeiture order where person has absconded
Division 2 - Forfeiture Orders
11. Forfeiture order on
conviction
12. Effect of forfeiture
order
13. Protection of third
parties
14. Discharge of forfeiture
order on appeal and quashing of
conviction
15. Payment instead of
forfeiture order
16. Enforcement of
order for payment instead of
forfeiture
17. Forfeiture order where
person has absconded
18. Registered
foreign forfeiture orders
Division 3 - Confiscation Orders
19. Confiscation order on
conviction
20. Rules for determining
benefit and assessing value
21.
Statements relating to benefits from commission of serious
offences
22. Amount to be recovered
under confiscation order
23. Variation
of confiscation orders
24. Court may
lift corporate veil
25. Enforcement of
confiscation orders
26. Amount paid
respect of registered foreign confiscation orders
Part
3 - Provisions for facilitating police investigations and preserving
property
liable to
forfeiture and confiscation orders
Division 1 - Powers of search and seizure
27. Warrant to search
land, etc. for tainted property
28.
Police may seize other tainted
property
29. Return of property
seized
30. Search for and seizure of
tainted property in relation to foreign offences
Division 2 - Restraining orders
31. Application for
restraining order
32. Restraining
orders
33. Undertakings by
Crown
34. Notice of application for
restraining order
35. Service of
restraining order
36. Further
orders
37. Financial Secretary to
satisfy confiscation order
38.
Registration of restraining order
39.
Contravention of restraining
orders
40. Court may revoke
restraining orders
41. When
restraining order ceases to be in
force
42. Interim restraining order
may be made in respect of foreign
offence
43. Registered foreign
restraining orders - general
44.
Registered foreign restraining orders - Court may direct Financial Secretary to
take custody and control of
property
45. Registered foreign
restraining orders - undertakings
46.
Registered foreign restraining orders - time when order ceases to be in
force
Division 3 - Production orders, and other information gathering powers
47. Production and
inspection orders
48. Scope of police
powers under production order,
etc.
49. Evidential value of
information
50. Variation of
production order
51. Failure to comply
with production order
52. Search
warrant to facilitate
investigation
53. Production orders
and search warrants in relation to foreign offences
Division 4 - Monitoring Orders
54. Monitoring
orders
55. Monitoring orders no to be
disclosed
Division 5 - Obligations of financial institutions
56. Retention of records
by financial institutions
57. Register
of original documents
58.
Communications of information to law enforcement
authorities
59. Protection for
financial institutions
60.
Interpretation
Division 6 - Disclosure of information held by Government Department, etc.
61. Direction to disclose
information
62. Further disclosure of
information and documents
63.
Evidential value of copies
Part 4 - Offences
64. 
Money
laundering
65. Possession of property
suspected of being proceeds of
crime
66. Conduct by directors,
servants or agents
Part 5 - Miscellaneous
67. Standard of
proof
68.
Costs
69. Non-liability of Financial
Secretary
70. Operation of other laws
no affected
71.
Regulations
----------------------------------
AN ACT
to provide for confiscation of the proceeds of crime, and for related purposes
Part 1 - Preliminary
1 Short
title
(1) This Act may be cited as
the Proceeds of Crime Act
1998.
2
Commencement
(1) This Act shall
come into operation in accordance with Article 34 of the
Constitution.
3
Principal objects
(1) The
principal objects of this Act are-
(a) to deprive persons of the proceeds of, and benefits derived from, the commission of serious offences;
(b) to provide for the forfeiture of property used in, in connection with or for the purpose of facilitating the commission of serious offences;
(c) to enable law enforcement authorities to trace such proceeds, benefits and property; and
(d) to make it an offence to engage in
4
Interpretation
(1) In this Act,
unless the contrary intention appears-
"Attorney General" means the chief legal adviser to the Government of Niue;
"benefit" falls to be construed in accordance with section 5(1);
"Cabinet" means the Cabinet of Ministers referred to in Article 2 of the Constitution of Niue;
"Chief of Police" includes the person for the time being carrying out the duties of the Chief of Police;
"Commissioner" means a Commissioner of the Court;
"confiscation order" means an order made by the Court under section 19(1);
"Court" means the High Court of Niue;
"document", in relation to an offence, means a written or printed thing and includes-
(a) a map, plan, graph or drawing;
(b) a photograph;
(c) a disk, tape, sound track or other device in which sound or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) a film, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom;
"foreign confiscation order" means an order made under the law of a foreign country for a person to pay to the foreign country an amount representing the value (or part thereof) of the person's benefits from an offence against the law of that country;
"foreign forfeiture order" means an order, made under the law of a foreign country, for the forfeiture of property in respect of an offence against the law of that country;
"foreign restraining order" means an order, made under the law of a foreign country, restraining a particular person, or all persons, from dealing with property, being an order made in respect of an offence against the law of that country;
"foreign serious offence" means a serious offence against the law of a foreign country;
"forfeiture order" means an order made by the Court under section 11(1);
"gift caught by this Act" falls to be construed in accordance with sections 5(12) and (14);
"interest", in relation to property, means-
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property;
"Judge" includes a Commissioner;
"proceeds", in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence;
"proceeds of crime" means-
(a) proceeds of a serious offence; or
(b) any property that is derived or realised, directly or indirectly, by any person from acts or omissions that occurred outside Niue and would, if they had occurred in Niue, have constituted a serious offence;
"production order" means an order made by the Court under section 47;
"property" includes
"property-tracking document", in relation to an offence, means-
(a) a document relevant to-
(i) identifying, locating or quantifying property of a person who committed the offence; or
(ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence; or
(b) a document relevant to-
(i) identifying, locating or quantifying tainted property in relation to the offence; or
(ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence;
"realisable property" falls to be construed in accordance with sections 5(3) and (4);
"relevant application period", in relation to a person's conviction of a serious offence, means the period of 12 months after-
(a) where the person is to be taken to have been convicted of the offence by reason of section 5(2)(a) - the day on which the person was convicted of the offence;
(b) where the person is to be taken to have been convicted of the offence by reason of section 5(2)(b) - the day on which the person was discharged without conviction; or
(c) where the person is to be taken to have been convicted of the offence by reason of section 5(2)(c) - the day on which the court took the offence into account in passing sentence for the other offence referred to in that section;
"relevant offence", in relation to tainted property, means an offence by reason of the commission of which the property is tainted property;
"restraining order" means an order made by the Court under section 32(1);
"serious offence" means an offence the maximum penalty for which is death, or imprisonment for not less than 12 months;
"tainted property", in relation to a serious offence, means-
(a) property used in, or in connection with, the commission of the offence; or
(b) proceeds of the offence;
and when used without reference to a particular offence means tainted property in relation to a serious offence;
"unlawful activity" means an act or omission that constitutes an offence against a law in force in Niue or a foreign country.
5
Definition of certain terms
(1) In
this Act-
(a) "a benefit" includes any property, service or advantage, whether direct or indirect;
(b) "to benefit" has a corresponding meaning;
(c) a reference to a benefit derived or obtained by, or otherwise accruing to, a person ("A") includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at A's request or direction.
(2)
For the purposes of this Act, a person is taken to be convicted of a serious
offence if-
(a) the person is convicted, whether summarily or on indictment, of the offence;
(b) the person is charged with, and found guilty of, the offence but is discharged without conviction; or
(c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence.
(3)
In this Act,
"realisable
property" means, subject to section
6-
(a) any property held by a person who has been convicted of, or charged with, a serious offence; and
(b) any property held by a person to whom a person so convicted or charged has directly or indirectly made a gift caught by this Act.
(4)
Property is not realisable property if-
(a) there is in force, in respect of that property, a forfeiture order under this Act or under another enactment; or
(b) a forfeiture order is proposed to be made against that property under this Act or another enactment.
(5)
For the purposes of sections 21 and 22 the amount that might be realised at the
time a confiscation order is made against a person
is the total of the values at
that time of all the realisable property held by the person less the total
amounts payable under an
obligation, where there is an obligation having
priority at that time, together with the total of the values at that time of all
gifts caught by this Act.
(6) For
the purposes of subsection (5), an obligation has priority at any time if it is
an obligation of the person to-
(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or the order was made before the confiscation order; or
(b) pay an amount due in respect of any tax, rate, duty, excise or other impost payable under an enactment for the time being in force;
(c) pay any other civil obligation as may be determined by the Court.
(7)
Subject to subsections (8) and (9), for the purposes of this Act, the value of
property (other than cash), in relation to a person
holding the property,
is-
(a) where any other person holds an interest in the property - the market value of the first-mentioned person's beneficial interest in the property, less the amount required to discharge any encumbrance on that interest; and
(b) in any other case - its market value.
(8)
References in this Act to the value at any time (referred to in subsection (9)
as "the
material
time")
of the transfer of any property are references to-
(a) the value of the property to the recipient when he or she receives it, adjusted to take account of subsequent changes in the value of
(b) where subsection (9) applies - the value there mentioned, whichever is the greater.
(9)
Where at the material time the recipient holds-
(a) the property which he or she received (not being cash); or
(b) property which, in whole or in part, directly or indirectly represents in the recipient's hands the property which he or she received,
the
value referred to in subsection(7)(b) is the value to the recipient at the
material time of the property referred to in paragraph
(a) or, as the case may
be, of the property mentioned in paragraph (b), so far as it represents the
property which he or she
received.
(10) Subject to
subsection (14), a reference to the value at any time (referred to in subsection
(11) as "the material
time")
of a gift is a reference
to-
(a) the value of the gift to the recipient when he or she received it, adjusted to take account of subsequent changes in the value of
(b) where subsection (11) applies-the value there mentioned, whichever is the greater.
(11)
Subject to subsection (14), where at the material time a person
holds-
(a) property which the person received, not being cash; or
(b) property which, in whole or in part, directly or indirectly represents in the person's hands the property which the person received,
the
value referred to in subsection (10)(b) is the value to the person at the
material time of the property mentioned in paragraph
(a) or the value of the
property mentioned in paragraph (b) so far as it so represents the property
which the person received.
(12) A
gift, including a gift made before the commencement of this Act, is caught by
this Act where-
(a) it was made by the person convicted or charged at a time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate, and the Court considers it appropriate in all the circumstances to take the gift into account;
(b) it was made by the person convicted or charged at any time and was a gift of property-
(i) received by the person in connection with the commission of a serious offence committed by the person or by another person; or
(ii) which in whole or in part directly or indirectly represented in the person's hands property received by the person in that connection.
(13)
The reference in subsection (12) to
"an offence to which
the proceedings for the time being
relate" includes, where the proceedings
have resulted in the conviction of the person, a reference to any offence that
the Court takes into
consideration when determining
sentence.
(14) For the purposes of
this Act-
(a) the circumstances in which a person must be treated as making a gift include those where the person transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided or the property transferred by the person; and
(b) in those circumstances, subsections (10), (11) and (12) shall apply as if the person had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided or the property transferred by the person.
Part 2 - Forfeiture orders, confiscation orders and related matters
Division I - General
6
Application for forfeiture order or confiscation order on
conviction
(1) Subject to
subsection (2), where a person is convicted of a serious offence committed after
the coming into force of this Act,
the Attorney General may apply to the Court
for one or both of the following orders-
(a) a forfeiture order against property that is tainted property in respect of the offence;
(b) a confiscation order against the person in respect of benefits derived by the person from the commission of the offence.
(2)
The Attorney General may not make an application after the end of the relevant
application period in relation to the
conviction.
(3) An application
under this section may be made in respect of one or more than one serious
offence.
(4) Where an application
under this section is finally determined, no further application for a
forfeiture order or a confiscation
order may be made in respect of the offence
for which the person was convicted unless the Court gives leave for the making
of a new
application oil being satisfied-
(a) that the property or benefit to which the new application relates was identified after the previous application was determined; or
(b) that necessary evidence became available only after the previous application was determined; or
(c) that it is in the interests of justice that the new application be made.
7
Notice of application
(1) Where
the Attorney General applies for a forfeiture order against property in respect
of a person's conviction of an offence-
(a) the Attorney General must give written notice of the application to the person and to any other person who the Attorney General has reason to believe may have an interest in the property;
(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and
(c) the court may, at any time before the final determination of the application, direct the Attorney General-
(i) to give notice of the application to any person who, in the opinion of the Court, appears to have an interest in the property; or
(ii) to publish in a newspaper published and circulating in Niue notice of the application, in the manner and containing such particulars and within the time that the Court considers appropriate.
(2)
Where the Attorney General applies for a confiscation order against a
person-
(a) the Attorney General must give the person written notice of the application; and
(b) the person may appear and adduce evidence at the hearing of the application.
8
Amendment of application
(1) The
court hearing an application under section 6(1) may, before final determination
of the application, and on the application
of the Attorney General, amend the
application to include any other property or benefit, as the case may be, upon
being satisfied
that-
(a) the property or benefit was not reasonably capable of identification when the application was originally made; or
(b) necessary evidence became available only after the application was originally made.
(2) Where the Attorney
General applies to amend an application for a forfeiture order and the amendment
would have the effect of including
additional property in the application for
the forfeiture order the Attorney General must give written notice of the
application
to amend to any person who the Attorney General has reason to
believe may have an interest in property to be included in the application
for
the forfeiture order.
(3) Any
person who claims an interest in the property to be included in the application
for the forfeiture order may appear and adduce
evidence at the hearing of the
application to amend.
(4) Where
the Attorney General applies to amend an application for a confiscation order
against
a person and the effect of
the amendment would be to include an additional benefit in the application for
the confiscation order the
Attorney General must give the person written notice
of the application to
amend.
9
Procedure on application
(1) Where
an application is made to the Court for a forfeiture order or a confiscation
order in respect of a person's conviction of
an offence, the Court may, in
determining the application, have regard to the transcript of any proceedings
against the person for
the
offence.
(2) Where an application
is made for a forfeiture order or a confiscation order to the Court before which
the person was convicted,
and the court has not, when the application is made,
passed sentence on the person for the offence, the Court may, if it is satisfied
that it is reasonable to do so in all the circumstances, defer passing sentence
until it has determined the application for the
order.
10
Application for forfeiture order where person has
absconded
(1) Where a person
absconds in connection with a serious offence committed after the coming into
force of this Act, the Attorney General
may, within the period of 6 months after
the person so absconds, apply to the Court for a forfeiture order under section
17 in respect
of any tainted
property.
(2) For the purposes of
this section, a person shall be deemed to have absconded in connection with an
offence if-
(a) an information has been laid alleging the commission of the offence by the person;
(b) a warrant for the arrest of the person is issued in relation to that information; and
(c) reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during the period of 6 months commencing on the day the warrant was issued,
and
the person shall be deemed to have so absconded on the last day of that period
of 6 months.
(3) Where the
Attorney General applies under this section for a forfeiture order against any
tainted property the Court shall, before
hearing the application-
(a) require notice of the application to be given to any person who, in the opinion of the Court, appears to have an interest in the property; or
(b) direct notice of the application to be published in a newspaper published and circulating in Niue containing such particulars and for so long as the Court may require.
Division 2 - Forfeiture Orders
11
Forfeiture order on conviction
(1)
Where the Attorney General applies to the Court for an order under this section
against property in respect of a person's conviction
of an offence and the Court
is satisfied that the property is tainted property in respect of the offence,
the court may order that
the property, or such of the property as is specified
by the Court in the order, be forfeited to the
Crown.
(2) In determining whether
property is tainted property the Court may infer-
(a) where the evidence establishes that the property was in the person's possession at the time of, or immediately after, the commission of the offence of which the person was convicted - that the property was used in, or in connection with, the commission of the offence;
(b) where the evidence establishes that property, and in particular
(c) where the evidence establishes that the value, after the commission of the offence, of all ascertainable property of a person convicted of the offence exceeds the value of all ascertainable property of that person prior to the commission of that offence, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the increase in value - that the value of the increase represents property which was derived, obtained or realised by the person directly or indirectly from the commission of the offence of which the person was convicted.
(3)
Where the Court orders that property, other than money, be forfeited to the
Crown, the Court shall specify in the order the amount
that it considers to be
the value of the property at the time when the order is
made.
(4) In considering whether a
forfeiture order should be made under subsection (1), the Court may have regard
to-
(a) the rights and interests, if any, of third parties in the property;
(b) the gravity of the offence concerned;
(c) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and
(d) the use that is ordinarily made of the property, or the use to which the property was intended to be put.
(5)
Where the Court makes a forfeiture order, the court may give such directions as
are necessary or convenient for giving effect
to the
order.
12
Effect of forfeiture order
(1)
Subject to subsection (2), where the Court makes a forfeiture order against
property, the property vests absolutely in the Crown
by virtue of the
order.
(2) Where a forfeiture
order is made against registrable property-
(a) the property vests in the Crown in equity but does not vest in the Crown at law until the applicable registration requirements have been complied with;
(b) the Crown is entitled to be registered as owner of the property; and
(c) the Attorney General has power on behalf of the Crown to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Crown as owner, including the execution of any instrument required to be executed by a person transferring an interest in property of that kind.
(3)
If a forfeiture order has been made against registrable property-
(a) the Attorney General has the power on behalf of the Crown to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Crown in the property; and
(b) any such action by or on behalf of the Crown is not a dealing for the purposes of subsection (4)(a).
(4)
Where the Court makes a forfeiture order against property-
(a) the property shall not, except with the leave of the Court and in accordance with any directions of the Court, be disposed of, or otherwise dealt with, by or on behalf of the Crown, before the relevant appeal date; and
(b) if, after the relevant appeal date, the order has not been discharged, the property may be disposed of, and the proceeds applied or otherwise dealt with, in accordance with the direction of the Attorney General.
(5)
Without limiting the generality of paragraph (4) (b), the directions that may be
given pursuant to that paragraph include a direction
that property is to be
disposed of in accordance with the provisions of an enactment specified in the
direction.
(6) In this
section-
"registrable property" means property the title to which is passed by registration on a register kept pursuant to a provision of any law of Niue;
"relevant appeal date", used in relation to a forfeiture order made in consequence of a person's conviction of a serious offence, means-
(a) the date on which the period allowed by the rules of court for the lodging of an appeal against a person's conviction, or for the lodging of an appeal against the making of a forfeiture order, expires without an appeal having been lodged, whichever is the later; or
(b) where an appeal against a person's conviction or against the making of a forfeiture order is lodged - the date on which the appeal, or the later appeal, lapses in accordance with the rules of court or is finally determined.
13
Protection of third parties
(1)
Where an application is made for a forfeiture order against property, a person
who claims an interest in the property may apply
to the Court, before the
forfeiture order is made, for an order under subsection
(2).
(2) If a person applies to
the Court for an order under this subsection in respect of the person's interest
in property and the Court
is satisfied-
(a) that the applicant was not in any way involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made; and
(b) if the applicant acquired the interest during or after the commission of the offence - that the applicant acquired the interest-
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property,
the
court shall make an order declaring the nature, extent and value (as at the time
when the order is made) of the applicant's
interest.
(3) Subject to
subsection (4), where a forfeiture order has already been made directing the
forfeiture of property, a person who claims
an interest in the property may,
before the end of the period of 6 months commencing on the day on which the
forfeiture order is
made, apply under this subsection to the Court for an order
under subsection (2).
(4) A person
who-
(a) had knowledge of the application for the forfeiture order before the order was made; or
(b) appeared at the hearing of that application,
shall
not be permitted to make an application under subsection (3), except with the
leave of the court.
(5) A person
who makes an application under subsection (1) or (3) must give written notice of
the making of the application to the
Attorney General, who shall be a party to
any proceedings in the
application.
(6) An applicant or
the Attorney General may, in accordance with the rules of court, appeal to the
Court of Appeal from an order made
under subsection
(2).
(7) The Cabinet shall, on
application by any person who has obtained an order under subsection (2), and
where the period allowed by
the rules of court with respect to the making of
appeals has expired and any appeal from that order taken under subsection (6)
has
been determined-
(a) direct that the property, or the part thereof to which the interest of the applicant relates, be returned to the applicant; or
(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.
14
Discharge of forfeiture order on appeal and quashing of
conviction
(1) Where the Court
makes a forfeiture order against property in reliance on a person's conviction
of an offence and the conviction
is subsequently quashed, the quashing of the
conviction discharges the
order.
(2) Where a forfeiture
order against property is discharged as provided by subsection (1) or by the
Court hearing an appeal against
the making of the order, any person who claims
to have had an interest in the property immediately before the making of the
forfeiture
order may apply to the Premier, in writing, for the transfer of the
interest to the person.
(3) On
receipt of an application under subsection (2) from a person who had such an
interest in the property the Cabinet shall-
(a) if the interest is vested in the Crown - give directions that the property or part thereof to which the interest of the applicant relates be transferred to the person; or
(b) in any other case - direct that there be payable to the person an amount equal to the value of the interest as at the time the order is made.
(4)
In the exercise of powers under this section and section 13, the Attorney
General shall have the power to do, or authorise the
doing of, anything
necessary or convenient to effect the transfer or return of property, including
the execution of any instrument
and the making of an application for the
registration of an interest in the property on any appropriate
register.
15
Payment instead of forfeiture
order
(1) Where the Court is
satisfied that a forfeiture order should be made in respect of property of a
person pursuant to section 11
or section 17 but that the property or any part
thereof or interest therein cannot be made subject to such all order and, in
particular-
(a) cannot, on the exercise of due diligence, be located;
(b) has been transferred to a third party in circumstances that do not give rise to a reasonable inference that the title or interest was transferred for the purpose of avoiding the forfeiture of the property;
(c) is located outside Niue; or
(d) has been commingled with other property that cannot be divided without difficulty;
the
Court may, instead of ordering the property or part thereof or interest therein
to be forfeited, order the person to pay to the
Crown an amount equal to the
value of the property, part or
interest.
16
Enforcement of order for payment instead of
forfeiture
(1) An amount payable
by a person to the Crown in accordance with an order under section 15 is a civil
debt due by the person to the
Crown.
(2) An order against a
person under section 15 may be enforced as if it were an order made in civil
proceedings instituted by the
Crown against the person to recover a debt due by
the person to the Crown and the debt arising from the order shall be taken to be
a judgment
debt.
17
Forfeiture order where person has
absconded
(1) Subject to section
10(3), where an application is made to the Court under section 10(1) for a
forfeiture order against any tainted
property because a person has absconded in
connection with a serious offence and the Court is satisfied
that-
(a) any property is tainted property in respect of the offence;
(b) proceedings in respect of a serious offence committed in relation to that property were commenced; and
(c) the accused charged with the offence referred to in paragraph (b) has absconded;
the
Court may order that the property, or such of the property as is specified by
the Court in the order, be forfeited to the
Crown.
(2) The provisions of
sections 11(2), (3), (4) and (5), 12 and 13 shall apply with such modifications
as are necessary to give effect
to this
section.
18
Registered foreign forfeiture
orders
(1) If a foreign forfeiture
order is registered in the Court under the Mutual Assistance in Criminal Matters
Act 1998 this Division
applies in relation to the order as if-
(a) all reference to an appeal against the making of an order and to the relevant appeal date were omitted; and
(b) a period of 6 weeks were substituted for the period of 6 months provided in section 13(3).
Division 3 - Confiscation Orders
19
Confiscation order on
conviction
(1) Subject to this
section, where the Attorney General applies to the Court for a confiscation
order against a person in respect
of that person's conviction of a serious
offence, the Court may, if it is satisfied that the person has benefited from
that offence,
order the person to pay to the Crown an amount equal to the value
of the person's benefits from the offence or such lesser amount
as the Court
certifies in accordance with section 23 to be the amount that might be realised
at the time the confiscation order is
made.
(2) The Court shall assess
the value of the benefits derived by a person from the commission of an offence
in accordance with sections
20 to
23.
(3) The Court shall not make a
confiscation order under this section-
(a) until the period allowed by the rules of court for the lodging of an appeal against conviction has expired without such an appeal having been lodged;
or
(b) where an appeal against conviction has been lodged - until the appeal lapses in accordance with the rules of court or is finally determined.
20
Rules for determining benefit and assessing
value
(1) Where a person obtains
property as the result of, or in connection with the commission of, a serious
offence, the person's benefit
is the value of the property so
obtained.
(2) Where a person
derives an advantage as the result of, or in connection with the commission of,
a serious offence, the person's
advantage shall be deemed to be a sum of money
equal to the value of the advantage so
derived.
(3) The Court, in
determining whether a person has benefited from the commission of a serious
offence or from that offence taken together
with other serious offences and, if
so, in assessing the value of the benefit, shall, unless the contrary is proved,
deem-
(a) all property-
(i) appearing to the Court to be held by the person on the day oil which the application is made; and
(ii) appearing to the Court to be held by the person at any time-
(A) within the period between the day the offence, or the earliest offence, was committed and the day on which the application is made; or
(B) within the period of 5 years immediately before the day on which the application is made,
being whichever is the shorter period,
to be property that came into the possession or under the control of the person by reason of the commission of that offence or those offences;
(b) any expenditure by the person since the beginning of that period to be expenditure met out of payments received by the person as a result of, or in connection with, the commission of that offence or those offences; and
(c) any property received or deemed to have been received by the person at any time as a result of, or in connection with, the commission by the person of that offence, or those offences, to be property received by the person free of any interests therein.
(4)
Where a confiscation order has previously been made against a person, in
assessing the value of any benefit derived by the person
from the commission of
the serious offence in respect of which the order was made, the Court shall
leave out of account any of the
person's benefits that are shown to the Court to
have been taken into account in determining the amount to be recovered under
that
order.
(5) If evidence is
given at the hearing of the application that the value of the person's property
at any time after the commission
of the serious offence exceeded the value of
the person's property before the commission of the offence, then the Court
shall, subject
to subsection (6), treat the value of the benefits derived by the
person from the commission of the offence as being not less than
the amount of
the excess.
(6) If, after evidence
of the kind referred to in subsection (5) is given, the person satisfies the
Court that the whole or part of
the excess was due to causes unrelated to the
commission of the offence, subsection (5) does not apply to the excess or, as
the case
may be, that
part.
21
Statements relating to benefits from commission of serious
offences
(1) Where-
(a) a person has been convicted of a serious offence and the Attorney General tenders to the Court a statement as to any matters relevant-
(i) to determining whether the person has benefited from the offence or from any other serious offence of which the person is convicted in the same proceedings or which is taken into account in determining his sentence; or
(ii) to an assessment of the value of the person's benefit from the offence or any other serious offence of which he is so convicted in the same proceedings or which is so taken into account; and
(b) the person accepts to any extent an allegation in the statement,
the Court may, for the
purposes of so determining or making that assessment, treat his acceptance as
conclusive of the matters to
which it
relates.
(2) Where-
(a) a statement is tendered under subsection (1)(a); and
(b) the Court is satisfied that a copy of that statement has been served on the person,
the
Court may require the person to indicate to what extent the person accepts each
allegation in the statement and, so far as the
person does not accept any such
allegation, to indicate any matters the person proposes to rely
on.
(3) Where the person fails in
any respect to comply with a requirement under subsection (2), the person may be
treated for the purposes
of this section as having accepted every allegation in
the statement, other than-
(a) an allegation in respect of which the person has complied with the requirement; and
(b) an allegation that the person has benefited from the serious offence or that any property or advantage was obtained by the person as a result of, or in connection with, the commission of the offence.
(4)
Where-
(a) the person tenders to the Court a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and
(b) the Attorney General accepts to any extent any allegation in the statement, the Court may, for the purposes of that determination, treat the acceptance of the Attorney General as conclusive of the matters to which it relates.
(5)
An allegation may be accepted or matter indicated for the purposes of this
section either-
(a) orally before the Court; or
(b) in writing in accordance with rules of court.
(6) An acceptance by a
person under this section that he received any benefits from the commission of a
serious offence is admissible
in any proceedings for any
offence.
22
Amount to be recovered under confiscation
order
(1) Subject to subsection
(2), the amount to be recovered in the person's case under a confiscation order
shall be the amount which
the Court assesses to be the value of the person's
benefit from the offence or, if more than one, all the offences in respect of
which the order may be made.
(2)
Where the Court is satisfied as to any matter relevant to determining the amount
which might be realised at the time the confiscation
order is made (whether by
an acceptance under section 21 or otherwise) the Court may issue a certificate
giving the Court's opinion
as to the matters concerned, and shall do so if
satisfied that the amount that might be realised at the time the confiscation
order
is made is less than the amount that the Court assesses to be the value of
the person's benefit from the offence, or if more than
one, all the offences in
respect of which the confiscation order may be
made.
23
Variation of confiscation
orders
(1) Where-
(a) the Court makes a confiscation order in relation to an offence;
(b) in calculating the amount of the confiscation order, the Court took into account a forfeiture of property or a proposed forfeiture of property or a proposed forfeiture order in respect of property; and
(c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made,
the
Attorney General may apply to the Court for a variation of the confiscation
order to increase the amount of the order by the value
of the property and the
Court may, if it considers it appropriate to do so, vary the order
accordingly.
(2)
Where-
(a) the Court makes a confiscation order against a person in relation to an offence;
(b) in calculating the amount of the confiscation order, the Court took into account, in accordance with section 5 (5) and (6), an amount of tax paid by the person; and
(c) an amount is repaid or refunded to the person in respect of that tax,
the Attorney General may
apply to the Court for a variation of the confiscation order to increase the
amount of the order by the amount
repaid or refunded and the Court may, if it
considers it appropriate to do so, vary the order
accordingly.
24
Court may lift corporate veil
(1)
In assessing the value of benefits derived by a person from the commission of an
offence or offences, the court may treat as property
of the person any property
that, in the opinion of the court, is subject to the effective control of the
person whether or not the
person has-
(a) any legal or equitable interest in the property; or
(b) any right, power or privilege in connection with the property.
(2) Without limiting the
generality of subsection (1) the Court may have regard to-
(a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property, and for this purpose the Court may order the investigation and inspection of the books of a named company;
(b) a trust that has a relationship to the property; and
(c) any relationship whatsoever between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.
(3)
Where the Court, for the purposes of making a confiscation order against a
person, treats particular property as the person's
property pursuant to
subsection (1), the Court may, on application by the Attorney General, make an
order declaring that the property
is available to satisfy the
order.
(4) Where the Court
declares that property is available to satisfy a confiscation
order-
(a) the order may be enforced against the property as if the property were property of the person against whom the order is made; and
(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.
(5)
Where the Attorney General makes an application for an order under subsection
(3) that property is available to satisfy a confiscation
order against a
person-
(a) the Attorney General shall give written notice of the application to the person and to any person who the Attorney General has reason to believe may have an interest in the property; and
(b) the person and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application.
25
Enforcement of confiscation
orders
(1) An amount payable by a
person to the Crown in accordance with a confiscation order is a civil debt due
by the person to the Crown.
(2) A
confiscation order against a person may be enforced as if it were an order made
in civil proceedings instituted by the Crown
against the person to recover a
debt due by the person to the Crown and the debt arising from the order shall be
taken to be a judgment
debt.
(3)
Where a confiscation order is made against a person and the person is, or
becomes, a bankrupt, the order may be enforced against
the person or against any
property of the person that is not vested in the person's trustee under the Niue
Act 1966.
26
Amounts paid in respect of registered foreign confiscation
orders
(1) Where a foreign
confiscation order is registered in the Court under the Mutual Assistance in
Criminal Matters Act 1998, any amount
paid, whether in Niue or elsewhere, in
satisfaction of the foreign confiscation order shall be taken to have been paid
in satisfaction
of the debt that arises by reason of the registration of the
foreign confiscation order in the Court.
Part 3 - Provisions for facilitating police investigations and preserving property liable to forfeiture and confiscation orders
Division 1 - Powers of search and seizure
27
Warrant to search land, etc. for tainted
property
(1) A police officer may
apply to a Commissioner for the issue of a warrant to search land or premises
for tainted property.
(2) Where an
application is made under subsection (1) for a warrant to search land or
premises for tainted property, the Commissioner
may issue a warrant of that kind
in the same manner, and subject to the same conditions, as a judge could issue a
search warrant
under the Niue Act 1966 and, subject to this Division, the
warrant may be executed in the same manner as if it had been issued under
that
Act.
28 Police
may seize other tainted
property
(1) In the course of a
search under a warrant issued pursuant to section 27 a police officer may
seize-
(a) any property that the police officer believes, on reasonable grounds, to be tainted property in relation to any serious offence;
(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence,
if
the police officer believes, on reasonable grounds, that it is necessary to
seize that property or thing in order to prevent its
concealment, loss or
destruction, or its use in committing, continuing or repeating the offence or
any other
offence.
29
Return of property seized
(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 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 Chief of Police to return the property to the person and
the Chief of Police shall arrange for the property
to be
returned.
(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
Chief of Police 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; and
(b) no forfeiture order has been made against the property within the period of 14 days after the property was seized and the property is in the possession of the Chief of Police at the end of that period;
the
Chief of Police 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 Chief of Police 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 Chief of Police shall-
(d) if the restraining order directs the Financial Secretary to take custody and control of the property - arrange for the property to be given to the Financial Secretary 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 - 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 Chief of Police,
the
Chief of Police may apply to the Court that made the restraining order for an
order that the Chief of Police 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 Chief of Police 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 Chief
of Police applies to the 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; and
(b) while the property is in the possession of the Chief of Police, a forfeiture order is made in respect of the property;
the
Chief of Police shall deal with the property as required by the
order.
30
Search for and seizure of tainted property in relation to foreign
offences
(1) Where a police
officer is authorised, under the Mutual Assistance in Criminal Matters Act 1998,
to apply to a Commissioner for
a search warrant under this Act in relation to
tainted property in respect of a foreign serious offence, the police officer may
apply
for the warrant accordingly and this Division applies to the application
and to any warrant issued as a result of the application
as if-
(a) references in this Division to tainted property were references to tainted property in relation to a foreign serious offence; and
(b) references in this Division to a relevant offence were references to a relevant foreign serious offence;
(c) references in this Division to seizure of property under this Division were references to seizure of property under a warrant issued under section 27 in respect of a foreign serious offence;
(d) the reference in section 29(2)(c) to the person in respect of whose conviction, charging or proposed charging the seizure of the property was made were a reference to the person who is believed or alleged to have committed the relevant foreign serious offence;
(e) the reference in section 29(4) to a period of 14 days were a reference to a period of 30 days;
(f) the references in sections 29(5) and (6) to the making of a restraining order in relation to seized property were references to-
(i) the registration in the Court under the Mutual Assistance in Criminal Matters Act 1998 of a foreign restraining order in relation to the seized property; or
(ii) the making by the Court under this Act of a restraining order in respect of the seized property in relation to the foreign serious offence;
(g) the reference in section 29(8) to the making of a forfeiture order were a reference to the registration in the Court under the Mutual Assistance in Criminal Matters Act 1998 of a foreign forfeiture order; and
(h) section 28 and 29(3) were omitted.
(2)
If, in the course of searching under a warrant issued under section 27, for
tainted property in relation to a foreign serious
offence, a police officer
finds-
(a) property that the police officer believes, on reasonable grounds, to be tainted property in relation to any foreign serious offence in respect of which a search warrant under section 27 is in force; or
(b) any thing that the police officer believes, on reasonable grounds-
(i) to be relevant to a criminal proceeding in the foreign country in respect of the foreign serious offence; or
(ii) will afford evidence as to the commission of a criminal offence,
and
the police officer believes, on reasonable grounds, that it is necessary to
seize that property or thing in order to prevent its
concealment, loss or
destruction, or its use in committing, continuing or repeating the offence, the
warrant shall be deemed to authorise
the police officer to seize that property
or thing.
Division 2 - Restraining orders
31
Application for restraining
order
(1) Where a person (in this
Division called the
"defendant")-
(a) has been convicted of a serious offence; or
(b) has been, or is about to be, charged with a serious offence,
the
Attorney General may apply to the Court for a restraining order under subsection
(2) against any realisable property held by the
defendant or specified
realisable property held by a person other than the
defendant.
(2) An application for
a restraining order may be made
ex
parte and shall be in writing and be
accompanied by an affidavit stating-
(a) where the defendant has been convicted of a serious offence - the offence of which the defendant was convicted, the date of the conviction, the court before which the conviction was obtained and whether an appeal has been lodged against the conviction;
(b) where the defendant has not been convicted of a serious offence - the offence with which the defendant is, or is about to be, charged and the grounds for believing that the defendant committed the offence;
(c) where the defendant is about to be charged with a serious offence - the grounds for believing that the defendant will be charged with a serious offence within 48 hours;
(d) a description of the property in respect of which the restraining order is sought;
(e) the name and address of the person who is believed to be in possession of the property;
(f) where the application seeks a restraining order against property of the defendant - the grounds for the belief that the property is tainted property in relation to the offence or the defendant derived a benefit directly or indirectly from the commission of the offence; and
(g) where the application seeks a restraining order against property of a person other than the defendant - the grounds for the belief that the property is tainted property in relation to the offence or is subject to the effective control of the defendant.
32
Restraining orders
(1) Subject to
this section, where the Attorney General applies to the Court for a restraining
order against property and the Court
is satisfied that-
(a) the defendant has been convicted of a serious offence or has been charged with a serious offence or will be charged with a serious offence within 48 hours;
(b) where the defendant has not been convicted of the offence - there are reasonable grounds for believing that the defendant committed the offence;
(c) where the application seeks a restraining order against property of the defendant - there are reasonable grounds for believing that the property is tainted property in relation to the offence or that the defendant derived a benefit directly or indirectly from the commission of the offence;
(d) where the application seeks a restraining order against property of a person other than the defendant - there are reasonable grounds for believing that the property is tainted property in relation to the offence or that the property is subject to the effective control of the defendant, and
the
Court may make an order-
(e) prohibiting the defendant or any person from disposing of, or otherwise dealing with, the property or such part thereof or interest therein as is specified in the order, except in such manner as is specified in the order; and
(f) at the request of the Attorney General, where the Court is satisfied that the circumstances so require - directing the Financial Secretary to take custody of the property or such part thereof as is specified in the order and to manage or otherwise deal with all or any part of the property in accordance with the directions of the Court.
(2)
An order under subsection (1) may be made subject to such conditions as the
Court thinks fit and, without limiting the generality
of this section, may make
provision for meeting, out of the property or a specified part of the property,
all or any of the following-
(a) the person's reasonable living expenses (including the reasonable living expenses of the person's dependants (if any)) and reasonable business expenses;
(b) the person's reasonable expenses in defending a criminal charge and any proceedings under this Act;
(c) another specified debt incurred by the person in good faith;
but
the Court shall not make such provision unless it is satisfied that the person
cannot meet the expense or debt concerned out of
property that is not subject to
a restraining order.
(3) In
determining whether there arc reasonable grounds for believing that property is
subject to the effective control of the defendant
the Court may have regard to
the matters referred to in section
24(2).
(4) Where the Financial
Secretary is given a direction under subsection (1)(f) in relation to property,
the Financial Secretary may
do anything that is reasonably necessary for
preserving the property and for this purpose may exercise any power that the
owner of
the property could exercise and do so to the exclusion of the
owner.
(5) Where the Attorney
General applies to the Court for an order under subsection (1), a witness shall
not be required to answer a
question or to produce a document if the Court is
satisfied that answering the question or producing the document may prejudice
the
investigation of, or prosecution of a person for, an
offence.
33
Undertakings by Crown
(1) Before
making an order under section 32, the Court may require the Crown to give such
undertakings as the court considers appropriate
with respect to the payment of
damages or costs, or both, in relation to the making and execution of the
order.
(2) For the purposes of
this section, the Attorney General may, on behalf of the Crown, give to the
Court such undertakings with respect
to the payment of damages or costs, or
both, as are required by the
court.
34
Notice of application for restraining
order
(1) Subject to subsection
(2), before making a restraining order, the Court shall require notice to be
given to, and may hear, any
person who, in the opinion of the Court, may have an
interest in the property.
(2) If
the Attorney General so requests, the Court shall consider the application
without requiring notice to be given in accordance
with subsection (1) but a
restraining order made in accordance with this subsection shall cease to have
effect after 14 days or such
lesser period as the Court specifies in the
order.
(3) The Court may, on
application by the Attorney General, extend the period of operation of a
restraining order made in accordance
with subsection (2) but, shall not consider
the application without requiring notice to be given in accordance with
subsection
(1).
35 Service
of restraining order
(1) Subject
to subsection (2), a copy of a restraining order shall be served on a person
affected by the order in such manner as the
Court directs or as may be
prescribed by rules of court.
(2)
Where the Court is satisfied that it is in the public interest to do so it may
order that service under subsection (1) be delayed
for a specified
period.
36
Further orders
(1) Where the Court
makes, or has made, a restraining order, the Court may, on application by the
Attorney General, a person whose
property is the subject of the restraining
order (in this section called
"the
owner"), the Financial Secretary (if the
restraining order directs the Financial Secretary to take custody and control of
property) or,
with the leave of the Court, any other person, make any ancillary
orders it considers
appropriate.
(2) Without limiting
the generality of subsection (1 ), an ancillary order may-
(a) vary the property to which a restraining order relates;
(b) vary any condition to which a restraining order is subject;
(c) order the examination on oath before the Court of any person about the affairs of the owner or the defendant;
(d) provide for the carrying out of any undertaking with respect to the payment of damages or costs given by the Crown in connection with the making of the restraining order;
(e) direct the owner or the defendant to give to a specified person a statement on oath setting out such particulars of the property, or dealings with the property, as the Court thinks proper;
(f) where the restraining order directs the Financial Secretary to take custody and control of property-
(i) regulate the performance or exercise of the Financial Secretary's functions, duties or powers under the restraining order;
(ii) determine any question relating to the property;
(iii) direct a person to do any act or thing to enable the Financial Secretary to take custody and control of the property;
(iv) where the restraining order provides that a person's reasonable expenses in defending a criminal charge be met out of the property - direct that such expenses be taxed as provided in the order before being met; and
(v) make provision for the payment to the Financial Secretary out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Financial Secretary of functions, duties or powers under the restraining order.
(3)
Where a person who has an interest in property in respect of which a restraining
order was made applies to the Court for a variation
of the order to exclude the
person's interest from the order, the Court shall grant the application if the
Court is satisfied-
(a) that the interest is not tainted property and that it cannot be required to satisfy a confiscation order; or
(b) that the applicant was not in any way involved in the commission of the offence in respect of which the restraining order was made and, where the applicant acquired the interest at the time of or after the commission (or alleged commission) of the offence, that the applicant acquired the interest-
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or
(c) in any case - it is in the public interest to do so having regard to all the circumstances, including any financial hardship or other consequence of the interest remaining subject to the order.
(4)
An application under subsection (1) shall not be heard by the Court unless the
applicant has given to each other person who is
entitled to make an application
under subsection (1) in relation to the restraining order notice in writing of
the application.
(5) The Court may
require notice of the application to be given to, and may hear, any person who,
in the opinion of the Court, appears
to have an interest in the
property.
(6) Where a person is
required, in accordance with an order under subsection (2)(c) or (e), to make or
give a statement on oath, the
person is not excused from making or giving the
statement on the ground that the statement, or part of the statement, might tend
to incriminate the person or make the person liable to forfeiture or a penalty
but such a statement, and any information, document
or thing obtained as a
direct or indirect consequence of the statement, is not admissible against the
person in any criminal proceedings
except a proceeding in respect of the falsity
of the
statement.
37
Financial Secretary to satisfy confiscation
order
(1) Where-
(a) a confiscation order is made against a defendant in reliance on the defendant's conviction of an offence; and
(b) a restraining order is made against property of the defendant, or property of another person in relation to which an order under section 24(3) is in force, in reliance on the defendant's conviction, or alleged commission, of the offence,
the
Court may, upon the making of the later of the orders or, on application by the
Attorney General, at any time thereafter while
the restraining order remains in
force, direct the Financial Secretary to satisfy the confiscation order by a
payment to the Crown
out of the
property.
(2) For the purposes of
enabling the Financial Secretary to comply with a direction under subsection
(1), the Court may-
(a) direct the Financial Secretary to sell or otherwise dispose of such of the property as the Court specifies; and
(b) order that the Financial Secretary may execute, and do anything necessary to give validity and operation to, any deed or instrument in the name of a person who owns or has an interest in the property,
and,
where the Court makes such an order, the execution of the deed or instrument by
the Financial Secretary has the same force and
validity as if the deed or
instrument had been executed by the
person.
(3) The Financial
Secretary shall refrain from taking action to sell property pursuant to a
direction under subsection (1)-
(a) until the relevant appeal date; or
(b) if proceedings in bankruptcy against the owner of the property are in progress or the owner is a bankrupt.
(4)
In this section
"relevant appeal
date", used in relation to a confiscation
order made in consequence of a person's conviction of a serious offence,
means-
(a) the date on which the period allowed by the rules of court for the lodging of an appeal against a person's conviction, or for the lodging of an appeal against the making of a confiscation order, expires without an appeal having been lodged, whichever is the later; or
(b) where an appeal against a person's conviction or against the making of a confiscation order is lodged - the date on which the appeal, or the later appeal, lapses in accordance with the rules of court or is finally determined.
38
Registration of restraining
order
(1) Where a restraining
order applies to property of a particular kind and the provisions of any law of
Niue provide for the registration
of title to, or charges over, property of that
kind, the authority responsible for administering those provisions may, on
application
by the Attorney General, record on the register kept pursuant 'to
those provisions the particulars of the restraining order and,
if those
particulars are so recorded, a person who subsequently deals with the property
shall, for the purposes of section 39, be
deemed to have notice of the
restraining order at the time of the
dealing.
39
Contravention of restraining
orders
(1) A person who knowingly
contravenes a restraining order by disposing of, or otherwise dealing with,
property that is subject to
the restraining order commits an indictable offence
punishable, on conviction, by-
(a) in the case of a natural person - a fine not exceeding $30,000 or imprisonment for a period not exceeding 5 years, or both; or
(b) in the case of a body corporate-a fine not exceeding $150,000.
(2)
Where a restraining order is made against property and the property is disposed
of, or otherwise dealt with, in contravention
of the restraining order, and the
disposition or dealing was either not for sufficient consideration or not in
favour of a person
who acted in good faith the Attorney General may apply to the
Court that made the restraining order for an order that the disposition
or
dealing be set aside.
(3) Where
the Attorney General makes an application under subsection (2) in relation to a
disposition or dealing, the Court may-
(a) set aside the disposition or dealing as from the day on which the disposition or dealing took place; or
(b) set aside the disposition or dealing as from the day of the order under this subsection and declare the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order under this subsection.
40
Court may revoke restraining
orders
(1) Where the Court has
made a restraining order against a person's property, the Court may, on
application by the person, revoke
the order if the applicant-
(a) where the applicant is a defendant - gives security satisfactory to the court for the satisfaction of any confiscation order that may be made against the person under this Act; or
(b) gives undertakings satisfactory to the court concerning the person's property.
(2)
An applicant under subsection (1) shall give written notice of the application
to the Attorney General and, if the restraining
order directed the Financial
Secretary to take control of property, the Financial
Secretary.
41
When restraining order ceases to be in
force
(1) Subject to subsection
(2), a restraining order made in reliance on a person's conviction, or alleged
commission, of a serious
offence ceases to be in force, in whole or in part, as
the case requires-
(a) where the order is made in reliance on the proposed charging of the person with the offence and the person is not so charged within the period of 48 hours after the making of the order - at the end of that period;
(b) when the charge against the person is withdrawn or the person is acquitted of the charge;
(c) when property subject to the order is used to satisfy a confiscation order which was made in reliance on the person's conviction of the offence;
(d) when the Court refuses an application for a confiscation order in reliance on the person's conviction of the offence;
(e) when property subject to the order- is forfeited under section 1l or 17.
(2)
In spite of anything in subsection (1), a restraining order ceases to be in
force at the end of 6 months after the day when the
restraining order was made
but the Court may within that period, on application by the Attorney General,
order that the restraining
order shall continue in force until a specified time
or event, if the Court is satisfied that a forfeiture order may still be made
in
respect of the property or that the property may be required to satisfy a
confiscation order which has not yet been
made.
(3) The Attorney General
shall give a person written notice of an application under subsection (2) in
relation to a restraining order
in respect of property of the
person.
42
Interim restraining order may be made in respect of foreign
offence
(1) Where the Attorney
General is authorised, under the Mutual Assistance Act 1988, to apply for a
restraining order under this Act
against any property of a person in respect of
a foreign serious offence, the Attorney General may apply for the order
accordingly
and this Division applies to the application and to any restraining
order made as a result of the application as if-
(a) reference in this Division to a serious offence were a reference to the foreign serious offence;
(b) a reference in this Division to a person charged or about to be charged with a serious offence were a reference to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced, or is reasonably believed to be about to commence, in a foreign country;
(c) there were substituted for the words of section 31(2)(b) the following words-
"where the defendant has not been convicted of a foreign serious offence - the offence which the defendant is believed to have committed and the grounds for that belief";
(d) there were substituted for the words of section 32(1)(a) the following words-
"the defendant has been convicted of a foreign serious offence, or a criminal proceeding in respect of a foreign serious offence has commenced, or is reasonably believed to be about to commence, against the defendant in a foreign country";
(e) the reference in section 32(2)(b) to a person's reasonable expenses in defending a criminal charge included a reference to the person's reasonable expenses in being represented in a criminal proceeding in a foreign country; and
(f) section 31(2)(c) and (f), 32(1)(c), 36(3)(a), 37, 40 and 41 were omitted.
(2)
Subject to subsections (3) and (4), a restraining order made in respect of a
foreign serious offence ceases to have effect at
the end of the period of 30
days commencing on the day on which the order is
made.
(3) Where the Court makes a
restraining order in respect of a foreign serious offence, it may, on
application made by the Attorney
General before the end of the period referred
to in subsection (2), extend the period of operation of the restraining
order.
(4) Where-
(a) a restraining order against property is made in respect of a foreign serious offence; and
(b) before the end of the period referred to in subsection (2) (including that period as extended under subsection (3)) a foreign restraining order against the property is registered in the Court under the Mutual Assistance in Criminal Matters Act 1998,
the
restraining order referred to in paragraph (a) ceases to have effect upon the
registration of the foreign restraining order referred
to in paragraph
(b).
43
Registered foreign restraining orders -
general
(1) Where a foreign
restraining order is registered in the Court under the Mutual Assistance in
Criminal Matters Act 1998, this Division
applies in relation to the order as
if-
(a) section 36, 37(3) and (4), 40 and 41 were omitted;
(b) a reference in section 35, 37, 38 or 39 to a restraining order included a reference to an order under section 44; and
(c) the reference in section 37(1) to the making of a restraining order were a reference to the registration by the Court of a foreign restraining order under the Mutual Assistance in Criminal Matters Act 1998 and the making of an order under section 44.
44
Registered foreign restraining orders - Court may direct Financial Secretary to
take custody and control of
property
(1) Where a foreign
restraining order against property is registered in the Court under the Mutual
Assistance in Criminal Matters
Act 1998, the Court may, if satisfied, upon
application by the Attorney General, that the circumstances so require, by order
direct
the Financial Secretary to take custody and control of the property, or
of such part thereof as is specified in the Court's order
and to manage or
otherwise deal with all or any part of the property in accordance with the
directions of the Court.
(2)
Before making an order under subsection (1), the Court shall require notice to
be given to, and may hear, any person who, in the
opinion of the Court, may have
an interest in the property.
(3)
Where the Financial Secretary is given an order under subsection (1) in relation
to property, the Financial Secretary may do anything
that is reasonably
necessary for preserving the property and for this purpose may exercise any
power that the owner of the property
could exercise and do so to the exclusion
of the owner.
(4) Where an order
is made under subsection (1) in respect of property of a person (in this
subsection called the
"respondent"),
the court may, at the time when it makes the order or at any later time, make
any one or more of the following orders, namely an
order-
(a) directing the respondent to give the Financial Secretary a statement on oath setting out such particulars of the property, or dealings with the property, as the Court thinks proper;
(b) regulating the performance or exercise of the Financial Secretary's functions, duties or powers under the restraining order;
(c) determining any question relating to the property;
(d) where the registered foreign restraining order provides that a person's reasonable expenses in defending a criminal charge be met out of the property - directing that such expenses be taxed as provided in the order before being met; and
(e) making provision for the payment to the Financial Secretary out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Financial Secretary of functions, duties or powers under the restraining order.
45
Registered foreign restraining orders -
undertakings
(1)
Where-
(a) a foreign restraining order against property is registered in the Court under the Mutual Assistance in Criminal Matters Act 1998; or
(b) the Court makes an order under section 44 in respect of property, the Court may, upon application by a person claiming an interest in the property, make an order as to the giving, or carrying out, of an undertaking by the Attorney General, on behalf of the Crown, with respect to the payment of damages or costs in relation to the registration, making or operation of the order.
46
Registered foreign restraining orders - time when order ceases to be in
force
(1) A foreign restraining
order registered in the Court under the Mutual Assistance in Criminal Matters
Act 1998 ceases to be in force
when the registration is cancelled in accordance
with that Act.
Division 3 - Production orders, and other information gathering powers
47
Production and inspection
orders
(1) Where-
(a) a person has been convicted of a serious offence and a police officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document or property-tracking documents in relation to the offence; or
(b) a police officer has reasonable grounds for suspecting that a person has committed a serious offence and that a person has possession or control of a property-tracking document or property-tracking documents in relation to the offence;
the
police officer may apply to a Judge in Chambers in accordance with subsection
(2) for an order under subsection (5) against the
person suspected of having
possession or control of the document or
documents.
(2) An application
under subsection (1) shall be made
ex
parte and shall be in writing and be
accompanied by an affidavit.
(3)
Where a police officer applies for an order under subsection (5) in respect of
an offence and includes in the affidavit a statement
to the effect that the
officer has reasonable grounds to believe that-
(a) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(b) property specified in the affidavit is subject to the effective control of the person referred to in paragraph (a),
the
Judge may treat any document relevant to identifying, locating or quantifying
that property as a property-tracking document in
relation to the offence for the
purposes of this section.
(4) In
determining whether to treat a document, under subsection (3), as a
property-tracking document in relation to an offence, the
Judge may have regard
to the matters referred to in section
24(2).
(5) Subject to subsection
(6), but notwithstanding any enactment which prohibits disclosure of information
of a particular type, where
an application is made under subsection (1) for an
order against a person, the Judge may, if satisfied that there are reasonable
grounds for doing so, make an order requiring the person to-
(a) produce to a police officer, at a specified time and place, any documents of the kind referred to in subsection (1) that are in the person's possession or control; or
(b) make available to a police officer for inspection, at a specified time or times, any documents of that kind that are in the person's possession or control.
(6)
An order under subsection (5)(a) shall not be made in respect of accounting
records used in the ordinary business of banking,
including ledgers, day-books,
cash books and account
books.
48 Scope
of police powers under production order,
etc.
(1) Where a document is
produced to a police officer, or made available to a police officer for
inspection, pursuant to an order under
section 47, the police officer
may-
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document;
(d) in the case of an order under section 47(5)(a) - retain the document if, and for so long as, retention of the document is reasonably necessary for the purposes of this Act.
(2)
Where a police officer retains a document pursuant to an order under section 47,
the police officer shall-
(a) give the person to whom the order was addressed a copy of the document certified by the police officer in writing to be a true copy of the document retained; and
(b) unless the person has received a copy of the document under paragraph (a) - permit the person to-
(i) inspect the document;
(ii) take extracts from the document; or
(iii) make copies of the document.
49
Evidential value of
information
(1) Where a person
produces or makes available a document pursuant to an order under section 47,
the production or making available
of the document, or any information, document
or thing obtained as a direct or indirect consequence of the production or
making available
of the document, is not admissible against the person in any
criminal proceedings except a proceeding for an offence against section
51.
(2) For the purposes of
subsection (1), proceedings on an application for a restraining order, a
forfeiture order or a confiscation
order are not criminal
proceedings.
(3) A person is not
excused from producing or making available a document when required to do so by
an order under section 47 on the
ground that-
(a) the production or making available of the document might tend to incriminate the person or make the person liable to a penalty; or
(b) the production or making available of the document would be in breach of an obligation (whether imposed by enactment or otherwise) of the person not to disclose the existence or contents of the document.
50
Variation of production order
(1)
Where a Judge makes a production order requiring a person to produce a document
to a police officer, the person may apply to the
Judge or another Judge for a
variation of the order and if the Judge hearing the application is satisfied
that the document is essential
to the business activities of the person, the
Judge may vary the production order so that it requires the person to make the
document
available to a police officer for
inspection.
51
Failure to comply with production
order
(1) Where a person is
required by a production order to produce a document to a police officer or make
a document available to a police
officer for inspection, the person commits an
offence against this subsection if the person-
(a) contravenes the order without reasonable excuse; or
(b) in purported compliance with the order produces or makes available a document known to the person to be false or misleading in a material particular without-
(i) indicating to the police officer to whom the document is produced or made available that the document is false or misleading and the respect in which the document is false or misleading; and
(ii) providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.
(2)
an offence against subsection (1) is punishable, on conviction,
by-
(a) if the offender is a natural person-a fine not exceeding $30,000 or imprisonment for a period not exceeding 5 years, or both; or
(b) if the offender is a body corporate-a fine not exceeding $150,000.
52
Search warrant to facilitate
investigation
(1)
Where-
(a) a person is convicted of a serious offence and a police officer has reasonable grounds for suspecting that there is in any premises a property-tracking document in relation to the offence; or
(b) a police officer has reasonable grounds for suspecting that a person has committed a serious offence and there is in any premises a property-tracking document in relation to the offence;
the
police officer may apply to a Judge for a warrant under subsection (4) to search
the premises for the document.
(2)
Where a police officer applies for a warrant under subsection (4) in respect of
an offence and includes in the affidavit a statement
to the effect that the
officer has reasonable grounds to believe that-
(a) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(b) property specified in the affidavit is subject to the effective control of the person referred to in paragraph (a),
the
Judge may treat any document relevant to identifying, locating or quantifying
that property as a property-tracking document in
relation to the offence for the
purposes of this section.
(3) In
determining whether to treat a document, under subsection (2), as a
property-tracking document in relation to an offence, the
Judge may have regard
to the matters referred to in section
24(2).
(4) Subject to subsection
(5), but notwithstanding any enactment which prohibits disclosure of information
of a particular type, where
an application is made under subsection (1) for a
warrant to search premises for a property-tracking document, the Judge may, if
satisfied that there are reasonable grounds for doing so, issue a warrant of
that kind in the same manner, and subject to the same
conditions, as a Judge
could issue a search warrant under the Niue Act 1966 and, subject to this
Division, the warrant may be executed
in the same manner as if it had been
issued under that Act.
(5) A Judge
shall not issue a search warrant under subsection (4) unless the Judge is
satisfied that-
(a) it would not be appropriate to make a production order in respect of the document; or
(b) the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the document without notice to any person.
(6)
Where a police officer enters premises in execution of a warrant issued under
this section, the police officer may seize and retain-
(a) any document which is likely to be of substantial value (whether by itself or together with other documents) to the investigation for the purpose of which the warrant was issued; and
(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence.
(7)
In this section
"premises"
includes any place and in particular any building, receptacle, vehicle, vessel
or aircraft.
53
Production orders and search warrants in relation to foreign
offences
(1) Where a police
officer is authorised, under the Mutual Assistance in Criminal Matters Act 1998,
to-
(a) apply to a Judge of the Court for a production order under this Act in respect of a foreign serious offence; or
(b) apply to the Court for a search warrant under this Act in relation to a property-tracking document in respect of a foreign serious offence;
the
police officer may apply for the order or warrant accordingly and this Division
applies to the application and to any order or
warrant issued as a result of the
application as if a reference in this Division to a serious offence were a
reference to the foreign
serious
offence.
(2) Where a police
officer takes possession of a document under a production order made, or a
warrant issued, in respect of a foreign
serious offence, the police officer may
retain the document for a period not exceeding one month pending a written
direction from
the Attorney General as to the manner in which the document is to
be dealt with (which may include a direction that the document
is to be sent to
an authority of the foreign country that requested the issue of the
warrant).
Division 4 - Monitoring Orders
54
Monitoring orders
(1) A police
officer may apply to a Judge in Chambers in accordance with subsection (2) for
an order (in this Division called a
"monitoring
order") directing a financial institution
to give information to a police
officer.
(2) An application under
subsection (1) shall be made
ex
parte and shall be in writing and be
accompanied by an affidavit.
(3) A
monitoring order shall direct a financial institution to give information
obtained by the institution about transactions conducted
through an account held
by a particular person with the
institution.
(4) A monitoring
order shall apply in relation to transactions conducted during the period
specified in the order, being a period
commencing not earlier than the day on
which notice of the order is given to the financial institution and ending not
later than
3 months after the date of the
order.
(5) A Judge shall not make
a monitoring order unless the Judge is satisfied that there are reasonable
grounds for suspecting that
the person in respect of whose account the
information is sought-
(a) has committed, or is about to commit, a serious offence;
(b) was involved in the commission, or is about to be involved in the commission, of a serious offence; or
(c) has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a serious offence.
(6)
A monitoring order shall specify-
(a) the name or names in which the account is believed to be held;
(b) the class of information that the institution is required to give; and
(c) the name of the police officer to whom the information is to be given, and the manner in which the information is to be given.
(7)
Where a financial institution is, or has been, subject to a monitoring order,
the fact that the monitoring order has been made
shall be disregarded for the
purposes of the application of sections 64 and 65 in relation to the
institution.
(8) Where a financial
institution that has been given notice of a monitoring order
knowing-
(a) contravenes the order; or
(b) provides false or misleading information in purported compliance with the order;
the
institution is guilty of an offence against this subsection punishable, on
conviction, by a fine not exceeding
$300,000.
(9) A reference in this
section to a transaction conducted through an account includes a reference
to-
(a) the making of a fixed term deposit; and
(b) in relation to a fixed term deposit - the transfer of the amount deposited, or any part of it, at the end of the term; and
(c) the opening, existence or use of a deposit box held by the institution.
55
Monitoring orders not to be
disclosed
(1) A financial
institution that is, or has been, subject to a monitoring order shall not
disclose the existence or the operation
of the order to any person
except-
(a) the Chief of Police or a police officer authorised in writing by the Chief of Police to receive the information;
(b)an officer or agent of the institution, for the purpose of ensuring that the order is complied with; or
(c) a legal practitioner or adviser, for the purpose of obtaining legal advice or representation in relation to the order.
(2)
A person of a kind referred to in subsection (1)(a), (b) or (c) to whom a
disclosure of the existence or operation of a monitoring
order has been made
(whether in accordance with subsection (1) or a previous application of this
subsection or otherwise) shall not-
(a) disclose the existence or operation of the order except to another person of a kind referred to in subsection (1)(a), (b) or (c) for the purposes of-
(i) if the disclosure is made by the Chief of Police or a police officer - the performance of that officer's duties;
(ii) if the disclosure is made by an officer or agent of the institution - ensuring that the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii) if the disclosure is made by a legal practitioner - giving legal advice or making representations in relation to the order; or
(b) when the person is no longer a person of a kind referred to in subsection (1)(a), (b) or (c) - make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3)
Nothing in subsection (2) prevents the disclosure by a person of a kind referred
to in subsection (l )(a) of the existence or
operation of a monitoring
order-
(a) for the purposes of, or in connection with, legal proceedings; or
(b) in the course of proceedings before a court.
(4)
A person of a kind referred to in subsection (1)(a) shall not be required to
disclose to any court the existence or operation
of a monitoring
order.
(5) A person who
contravenes subsection (1) or (2) is guilty of an offence punishable, on
conviction, by-
(a) if the person is a natural person - a fine not exceeding $60,000 or imprisonment for a period not exceeding 10 years, or both; or
(b) if the person is a body corporate - a fine not exceeding $300,000.
(6)
A reference in this section to disclosing the existence or operation of a
monitoring order to a person includes a reference to
disclosing information to
the person from which the person could reasonably be expected to infer the
existence or operation of the
monitoring order.
Division 5 - Obligations of financial institutions
56
Retention of records by financial
institutions
(1) Subject to this
section and to section 57, a financial institution shall retain, in its original
form, for the minimum retention
period applicable to the document, a document
that relates to a financial transaction carried out by the institution in its
capacity
as a financial institution, including, without limiting the generality
of this, a document that relates to-
(a) the opening or closing by a person of an account with the institution;
(b) the operation by a person of all account with the institution;
(c) the opening or use by a person of a deposit box held by the institution;
(d) the telegraphic or electronic transfer of funds by the institution on behalf of a person to another person;
(e) the transmission of funds between Niue and a foreign country or between foreign countries on behalf of a person; or
(f) an application by a person for a loan from the institution, where a loan is made to the person pursuant to the application.
(2)
Subsection (1) does not apply to-
(a) a document of a type referred to in subsection (1)(b) that relates to a single deposit, credit, withdrawal, debit or transfer of an amount of
(b) a document-
(i) that is not a document given to the institution by or on behalf of a customer; and
(ii) whose retention is not necessary in order to preserve a record of the financial transaction concerned.
(3)
A financial institution required to retain documents under this section shall
retain them on microfilm or in another way that
makes retrieval of the
documents, or of the information contained in the documents, reasonably
practicable.
(4) A financial
institution that contravenes subsection (1) or (3) is guilty of an offence
against this section punishable, on conviction,
by a fine not exceeding
$30,000.
(5) This section does not
limit any other obligation of a financial institution to retain
documents.
57
Register of original documents
(1)
Where a financial institution is required by law to release an original of a
document before the end of the minimum retention
period applicable to the
document, the institution shall retain a complete copy of the document until the
period has ended or the
original document is returned, whichever occurs
first.
(2) The financial
institution shall maintain a register of documents released under subsection
(1).
(3) A financial institution
that contravenes subsection (1) or (2) is guilty of an offence against this
section punishable, on conviction,
by a fine not exceeding
$30,000.
58
Communication of information to law enforcement
authorities
(1) Where a financial
institution is a party to a transaction and the institution has reasonable
grounds to suspect that information
that the institution has concerning the
transaction-
(a) may be relevant to an investigation of, or the prosecution of, a person for an offence; or
(b) may be of assistance in the enforcement of this Act or any regulations made under it;
the
institution may give the information to a police officer or the Attorney
General.
(2) An action, suit or
proceedings does not lie against-
(a) a financial institution; or
(b) an officer, employee or agent of a financial institution acting in the course of the- person's employment or agency,
in
relation to an action taken by the institution or person pursuant to subsection
(1).
(3) Where a financial
institution gives information to a police officer or the Attorney General, under
subsection (1), about the institution's
suspicion in relation to a transaction
to which the institution is a party, the institution, or an officer, employee or
agent of
the institution, must not, unless required to do so under this Act or
any other Act, disclose to anyone else-
(a) that the institution has formed the suspicion; or
(b) that information has been given; or
(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that the suspicion had been formed or that the first-mentioned information had been given.
(4)
A financial institution, or an officer, employee or agent of the institution,
who contravenes subsection (3) is guilty of an offence
punishable, on
conviction, by-
(a) if the offender is a natural person - a fine not exceeding $12,000 or imprisonment for a term not exceeding 2 years, or both; or
(b) if the offender is a body corporate - a fine not exceeding $60,000.
59
Protection for financial
institutions
Where a financial
institution, or a person who is an officer, employee or agent of the
institution, gives the information pursuant
to section 58(1) as soon as
practicable after forming the belief referred to in that subsection, the
institution shall be taken for
the purposes of sections 64 and 65 not to have
been in possession of that information at any
time.
60
Interpretation
(1) For the
purposes of this Division-
"customer", in relation to a financial institution, means a person by or on behalf of whom a financial transaction of a type referred to in section 56(1) is carried out by the institution;
"financial institution" means-
(a) a bank;
(b) a building society;
(c) a credit union;
(d) a trust company;
(e) a finance company; or
(f) a deposit taking company,
designated as such by the Minister responsible for finance;
"minimum retention period" means-
(a) if the document relates to the opening of an account with the institution-the period of 7 years after the day on which the account is closed;
(b) if the document relates to the opening by a person of a deposit box held by the institution - the period of 7 years after the day on which the deposit box ceases to be used by the person; or
(c) in any other case - the period of 7 years after the day on which the transaction takes place.
Division 6 - Disclosure of information held by Government Departments, etc.
61
Direction to disclose
information
(1) Notwithstanding
any provision in any other law, the Attorney General may direct the person in
charge of any Government department
or statutory body to disclose a document or
information which is in the possession or under the control of that person or to
which
that person may reasonably have access (not being a document readily
available to the public), if the Attorney General is satisfied
that the
information is relevant to-
(a) establishing whether a serious offence has been, or is being, committed; or
(b) the making, or proposed or possible making, of an order under Part 2 or 3 of this Act,
and,
where the Attorney General directs disclosure of information cinder this
subsection, the person shall disclose the information
to the Attorney General or
a police officer nominated by the Attorney
General.
62
Further disclosure of information and
documents
(1) No person to whom
information has been disclosed under section 61 shall further disclose the
information except for the purposes
of-
(a) the investigation of, or the prosecution, or proposed or possible prosecution, of a person for a serious offence; or
(b) an investigation relating to proceedings, or proposed or possible proceedings, for the making of an order under this Act or an investigation relating to the making, or proposed or possible making, of such an order.
(2)
A person to whom information has been disclosed in accordance with subsection
(1) or this subsection shall not disclose the information
to another person
except for the purposes referred to in subsection (1)(a) and
(b).
(3) Where information is
communicated to a person under section 61 or subsection (1) or (2), the
person-
(a) shall not voluntarily give the information in evidence in a proceeding before the Court other than a proceeding referred to in subsection (1)(a) or (b); and
(b) shall not be required to communicate the information to the Court.
(4)
A person who discloses information in contravention of this section is guilty of
an offence punishable, on conviction, by a fine
not exceeding $12,000 or
imprisonment for a period not exceeding 2 years, or
both.
63
Evidential value of copies
(1)
Where any document is examined or provided pursuant to a direction under section
61, the person by whom it is examined or to whom
it is provided, or any officer
or person authorised for the purpose by the person in charge of the relevant
Government department
or statutory body, may make or cause to be made one or
more copies thereof and any copy purporting to be certified by the person
in
charge of the relevant Government department or statutory body to be a copy made
pursuant to this section is evidence of the nature
and content of the original
document and has the same probative force as the original document would have
had if it had been proved
in the ordinary way.
Part 4 - Offences
64
Money laundering
(1) In this
section
"transaction"
includes the receiving or making of a
gift.
(2) A person who, after the
commencement of this Act, engages in money laundering is guilty of an offence
punishable, on conviction,
by-
(a) if the offender is a natural person - a fine not exceeding $120,000 or imprisonment for a period not exceeding 20 years, or both; or
(b) if the offender is a body corporate - a fine not exceeding $1,000,000.
(3)
A person shall be taken to engage in money laundering if, and only
if-
(a) the person engages, directly or indirectly, in a transaction that involves
(b) the person receives, possesses, conceals, disposes of or brings into Niue any
and
the person knows, or ought reasonably to know, that the money or other property
is derived or realised, directly or indirectly,
from some form of unlawful
activity.
65
Possession of property suspected of being proceeds of
crime
(1) A person who, after the
commencement of this Act, receives, possesses, conceals, disposes of or brings
into Niue any money, or
other property, that may reasonably be suspected of
being proceeds of cringe is guilty of an offence punishable, on conviction,
by-
(a) if the offender is a natural person - a fine not exceeding $20,000 or imprisonment for a period not exceeding 2 years, or both; or
(b) if the offender is a body corporate - a fine not exceeding $100,000.
(2)
It is a defence to a charge for an offence against this section, if the person
satisfies the Court that the person had no reasonable
grounds for suspecting
that the property referred to in the charge was derived or realised, directly or
indirectly, from some form
of unlawful
activity.
66
Conduct by directors, servants or
agents
(1) Where it is necessary,
for the purposes of this Act, to establish the state of mind of a body corporate
in respect of conduct
engaged in, or deemed by subsection (2) to have been
engaged in, by the body corporate, it is sufficient to show that a director,
servant or agent of the body corporate, being a director, servant or agent by
whom the conduct was engaged in within the scope of
his or her actual or
apparent authority, had that state of
mind.
(2) Any conduct engaged in
on behalf of a body corporate-
(a) by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,
shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate.
(3)
Where it is necessary, for the purposes of this Act, to establish the state of
mind of a person in relation to conduct deemed
by subsection (4) to have been
engaged in by the person, it is sufficient to show that a servant or agent of
the person, being a
servant or agent by whom the conduct was engaged in within
the scope of his or her actual or apparent authority, had that state of
mind.
(4) Conduct engaged in on
behalf of a person other than a body corporate-
(a) by a servant or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent,
shall
be deemed, for the purposes of this Act, to have been engaged in by the
first-mentioned person.
(5) A
reference in this section to the state of mind of a person includes a reference
to the knowledge, intention, opinion, belief
or purpose of the person and the
person's reasons for the person's intention, opinion, belief or
purpose.
Part 5 - Miscellaneous
67
Standard of proof
(1) Save as
otherwise provided in this Act, any question of fact to be decided by the Court
in proceedings under this Act is to be
decided on the balance of
probabilities.
68
Costs
(1) Where-
(a) a person brings, or appears at, proceedings under this Act before a court in order-
(i) to prevent a forfeiture, confiscation or restraining order from being made against property of the person; or
(ii) to have property of the person excluded from a forfeiture, confiscation or restraining order;
(b) the person is successful in those proceedings; and
(c) the Court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture, confiscation or restraining order was sought or made,
the
Court may order the Crown to pay all costs reasonably incurred by the person in
connection with the proceedings or such part of
those costs as is determined by
the Court.
69
Non-liability of Financial
Secretary
(1) The Financial
Secretary shall not be personally liable for any act done, or omitted to be
done, by him or her in the course of
the performance of the Financial
Secretary's functions under this
Act.
70
Operation of other laws not
affected
(1) Nothing in this Act
prejudices, limits or restricts-
(a) the operation of any other law which provides for the forfeiture of property or the imposition of penalties or fines; or
(b) the remedies available to the Crown, apart from this Act, for tire enforcement of its rights and the protection of its interests; or
(c) any power of search or any power to seize or detain property which is exercisable by a police officer apart from this Act.
71
Regulations
(1) The Cabinet may
make regulations prescribing matters-
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The
Niue Assembly passed this Act on the
26th
day of November l998.
------------------------------------
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/nu/legis/num_act/poca1998160