Proceeds of Crime Act 1997

[Home] [Databases] [WorldLII] [Search] [Feedback] [Report an error] [F.A.Q.]
Fiji Sessional Legislation

You are here: PacLII >> Databases >> Fiji Sessional Legislation >> Proceeds of Crime Act 1997

[Noteup] [Download] [Help]

Proceeds of Crime Act 1997

FIJI

PROCEEDS OF CRIME ACT, 1997

ARRANGEMENT OF SECTION

SECTION

Part I-PRELIMINARY

1. Short title
2. Commencement
3. Interpretation
4. Definition of certain terms etc.

Part II-FORFEITURE ORDERS, CONFISCATION ORDERS
AND RELATED MATTERS

Division 1 - General

5. Application for forfeiture or confiscation order on conviction
6. Jurisdiction of High Court
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. Effect of Discharge of Forfeiture order
16. Payment instead of forfeiture order
17. Enforcement of order for payment instead of forfeiture
18. Forfeiture order where person has absconded
19. Registered foreign forfeiture orders

Division 3 - Confiscation Orders

20. Confiscation order on conviction
21. Rules for determining benefit and assessing value
22. Statements relating to benefits from commission of serious offences
23. Amount to be recovered under confiscation orders
24. Variation of confiscation orders
25. Court may lift corporate veil
26. Enforcement of confiscation orders
27. Amounts paid in respect of registered foreign confiscation orders

Part III-PROVISIONS FOR FACILITATING POLICE INVESTIGATION AND PRESERVING PROPERTY LIABLE TO FORFEITURE AND CONFISCATION ORDERS

Division 1 - Powers of Search and Seizure

28. Warrants to search land etc. for tainted property
29. Defects in warrants
30. Police may seize other tainted property
31. Return of property seized
32. Appointment of Administrator
33. Search for and seizure of tainted property in relation to foreign offences

Division 2 - Restraining Orders

34. Application for restraining order
35. Restraining orders
36. Undertaking by Attorney-General
37. Notice of application for restraining order
38. Service of restraining order
39. Further orders
40. Attorney-General to satisfy confiscation order
41. Registration of restraining order
42. Contravention of restraining orders
43. Court may revoke restraining orders
44. When restraining order ceases to be in force
45. Interim restraining order may be made in respect of foreign offence
46. Registered foreign restraining orders - general
47. Registered foreign restraining orders - Court may direct Attorney-General to take custody and control of property
48. Registered foreign restraining orders - undertaking
49. Registered foreign restraining orders - time when order ceases to be in force

Division 3 - Production Orders and Other Information Gathering Powers

50. Production and inspection orders
51. Scope of police powers under production order etc.
52. Evidential value of information
53. Variation of production orders
54. Failure to comply with production order
55. Search warrant to facilitate investigations
56. Production orders and search warrants in relation to foreign offences

Division 4 - Monitoring Orders

57. Monitoring orders
58. Monitoring orders to be disclosed

Division 5 - Obligations of Financial Institutions

59. Retention of records by financial institutions
60. Register of original documents
61. Communication of information to law enforcement authorities
62. Protection of financial institution
63. Interpretation

Division 6 - Disclosure of Information held by Government Departments etc.

64. Direction to disclosure information
65. Further disclosure of information and documents
66. Evidential value of copies

Part IV-DISPOSAL ORDERS

67. Application for disposal orders
68. Disposal orders

Part V-OFFENCES

69. Money laundering
70. Possession of property suspected of being proceeds of crime
71. Conduct by directors, servants or agents

Part VI-MISCELLANEOUS

72. Standard of proof
73. Costs
74. Non-liability of Attorney-General
75. Evidence of market value of Drugs of dependence
76. Operation of other laws not affected
77. Regulations and Court rules

-----------------------------------------

FIJI

ACT NO. 27 OF 1997

I assent.

[L.S.]

K.K.T. MARA
President

[24 December 1997]

AN ACT

TO PROVIDE FOR CONFISCATION OF THE PROCEEDS OF CRIME TO DEPRIVE PERSONS OF THE PROCEEDS, BENEFITS AND PROPERTIES DERIVED FROM THE COMMISSION OF SERIOUS OFFENCES AND TO ASSIST LAW ENFORCEMENT AUTHORITIES IN TRACING THE PROCEEDS, BENEFITS AND PROPERTIES AND FOR RELATED MATTERS

ENACTED by the Parliament of Fiji.

Part I-PRELIMINARY

1. Short title

This Act may be cited as the Proceeds of Crime Act, 1997.

2. Commencement

This Act shall come into force on a date as the Minister may appoint by notice in the Fiji Republic Gazette.

3. Interpretation

In this Act, unless the context otherwise requires:

"account" means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for-

(a) a fixed term deposit; or

(b) a safety deposit box;

"bank" means-

(a) the Reserve Bank of Fiji; or

(b) a bank within the meaning of the Banking Act;

"benefit" falls to be construed in accordance with subsection 4(1);

"building society" means a society registered or incorporated as a building society, co-operative housing society or similar society under an Act or the under laws of Fiji;

"commissioner" means the Commissioner of Police;

"confiscation order" means an order made by the Court under subsection 20(1);

"court" means the High Court of Fiji;

"credit union" means a credit union or credit society carrying on business under an Act or the laws of Fiji;

"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 reproduce therefrom; or

(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;

"encumbrance" in relation to a property, includes any interest, mortgage, charge, right, claim or demand made on the property;

"facsimile copy" means a copy obtained by facsimile transmission;

"film" includes a microfilm or microfiche;

"fixed term deposit" means an interest bearing deposit lodged for a fixed period;

"foreign confiscation order" has the same meaning as in the Mutual Assistance in Criminal Matters Act, 1997;

"foreign forfeiture order" has the same meaning as in the Mutual Assistance in Criminal Matters Act, 1997;

"foreign restraining order" has the same meaning as in the Mutual Assistance in Criminal Matters Act, 1997;

"foreign serious offence" means a serious offence against the law of a foreign country;

"forfeiture order" means an order made by the Court under subsection 11(1);

"gift caught by this Act" falls to be construed in accordance with subsections 4(12) and 4(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;

"police officer" means a member of the Fiji Police Force;

"premises" includes vessel, aircraft, vehicle or any place, whether built upon or not;

"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 Fiji and would, if the acts or omissions had occurred in Fiji, have constituted a serious offence;

"production order" means an order made by the Court under section 50;

"property" includes money or any other property, real or personal, things in action or other intangible or incorporeal property;

"property-tracking document", in relation to an offence, means:

(a) a document relevant to:

(i) identifying, locating or quantifying the 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 under subsections 4(3) and 4(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 paragraph 4(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 paragraph 4(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 paragraph 4(2)(c) - the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph;

"relevant offence" in relation to tainted property, means-

(a) an offence by reason of the commission of which the property is tainted property; or

(b) any other offence that is prescribed by the regulation as a serious offence for the purposes of this definition or is of a class of offences that is so prescribed;

"restraining order" means an order made by the Court under subsection 35(1);

"serious offence" means an offence of which the maximum penalty prescribed by law 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 Fiji or a foreign country.

4. - 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 includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at request or direction of the person.

(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 5:

(a) any property held by a person who has been convicted of, or charged with, a serious offence; and

(b) any property held by any other person to whom the 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 22 and 23, the amount that may 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;

(b) pay an amount due in respect of any tax, rate, duty, cess or other impost payable under an enactment; or

(c) pay any other civil obligation as may be determined by the Court.

(7) Subject to subsections (8) and (9), or 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; or

(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 money; or

(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 print, directly or indirectly represents in the recipient's hands the property which he or she received;

the value referred to under paragraph (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 money; or

(b) here 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 print, directly or indirectly represents in the person's hands the property which the person received;

the value referred under paragraph (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 which 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; or

(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 value referred to in paragraph (a) bears to the value of the consideration provided or the property transferred by the person.

Part II-FORFEITURE ORDERS, CONFISCATION ORDERS
AND RELATED MATTERS

Division 1 - General

5. - 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 Director of Public Prosecutions 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 Director of Public Prosecutions 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 first grants leave for the making of a new application on 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.

6. Jurisdiction of High Court

The High Court of Fiji has jurisdiction to make a forfeiture order irrespective of the value of the property.

7. Notice of application

(1) Where the Director of Public Prosecutions applies for a forfeiture order against property in respect of a person's conviction of an offence:

(a) the Director of Public Prosecutions shall give written notice of the application to the person and any other person who the Director of Public Prosecutions 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 Director of Public Prosecutions:

(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 the Fiji Republic Gazette and in a newspaper published and circulating in Fiji notice of the application, in the manner and containing such particulars and within the time that the Court considers appropriate.

(2) Where the Director of Public Prosecutions applies for a confiscation order against a person:

(a) the Director of Public Prosecutions shall 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 subsection 5(1) may, before final determination of the application, and on the application of the Director of Public Prosecutions, 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 Director of Public Prosecutions applies to amend an application for a forfeiture order and the amendment would have the effect of including property in the application for the forfeiture order the Director of Public Prosecutions shall give written notice of the application to amend to any person who the Director of Public Prosecutions 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 Director of Public Prosecutions 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 Director of Public Prosecutions shall give the person written notice of the application to amend.

(5) Section 10 shall apply for the purposes of written notice in subsection (4) where the person required to be notified has absconded.

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, whether in the Magistrates' Court or in the Court, 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 Director of Public Prosecutions may, within the period of 6 months after the person so absconds, apply to the Court for a forfeiture order under section 18 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 is deemed to have absconded on the last day of that period of 6 months.

(3) Where the Director of Public Prosecutions 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 the Fiji Republic Gazette and in a newspaper published and circulating in Fiji containing such particulars and for so long as the Court may require.

Division 2 - Forfeiture Orders

11. Forfeiture order on conviction

(1) Where the Director of Public Prosecutions 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 State.

(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 the property, and in particular money, was found in the person's possession or under the person's control in a building, vehicle, receptacle or place during the course of investigations conducted by the police before or after the arrest and charge of the person for the offence of which the person was convicted - that the property was derived, obtained or realised as a result of the commission by the person of the offence of which the person was convicted;

(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 State, 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 or 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 directions necessary or convenient to give effect to the order.

12. Effect of forfeiture order

(1) Subject to subsection (2), where the Court makes a forfeiture order against the property, the property vests absolutely in the State by virtue of the order.

(2) Where a forfeiture order is made against registrable property:

(a) the property vests in the State in equity but does not vest in the State at law until the applicable registration requirements have been complied with;

(b) the State is entitled to be registered as owner of the property; and

(c) the Attorney-General has power on behalf of the State to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the State 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 Director of Public Prosecutions has the power on behalf of the State to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the State in the property; and

(b) any action by or on behalf of the State is not a dealing for the purpose of paragraph (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 State, 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 Fiji;

"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 may 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) shall give notice of the application to the Director of Public Prosecutions, who shall be a party to any proceedings in the application.

(6) An applicant or the Director of Public Prosecutions may, in accordance with the rules of Court, appeal to the Fiji Court of Appeal from an order made under subsection (2).

(7) The Attorney-General shall, on application by any person who has obtained an order under subsection (2), and where the period allowed by the rules of Court for appeal has expired or any appeal from that order 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 Attorney-General 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 an interest in the property the Attorney-General shall:

(a) if the interest is vested in the State - 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. Effects of discharge of forfeiture order

(1) If a forfeiture order is discharged the person who claims to be the person in whom the property was vested immediately before the making of the forfeiture order may-

(a) where the property is still vested in the State authority in which it was vested under the forfeiture order, by application in writing to the Attorney-General, request the return of the property; or

(b) where the property is no longer so vested, apply to the Court which made the forfeiture order for an order declaring the value (as at the time of making the order under this paragraph) of the property.

(2) On receipt of an application under paragraph (1)(a), the Attorney-General shall, subject to subsection (3), arrange for the property to be transferred to the applicant or other person or body as the Attorney-General determines and, for this purpose, the Attorney-General shall do, or authorise the doing of, anything necessary to carry out the transfer.

(3) On an application under paragraph (1)(b) the court may make an order declaring the value (as at the time of making the order) of the property.

(4) After an order is made under subsection (3) the applicant for the order may, by application in writing to the Attorney-General, request the payment of the amount declared by the order.

(5) On receipt of an application under subsection (4), the Attorney-General shall direct the State authority concerned to pay to the applicant or to such other person or body as the Attorney-General determines the amount declared by the order made under subsection (3) less the total amount paid by the State authority in respect of the property under any order made under.

(6) No stamp duty is payable under the Stamp Duties Act in respect of the transfer of any property under this section.

16. Payment instead of forfeiture order

Where the Court is satisfied that a forfeiture order should be made in respect of property of a person pursuant to section 11 or 18 but that the property or any part thereof or interest therein cannot be made subject to such an 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 Fiji; or

(d) has been mixed 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 State an amount equal to the value of the property, part or interest.

17. Enforcement of order for payment instead of forfeiture

(1) An amount payable by a person to the State under section 16 is a civil debt due by the person to the State.

(2) An order made under section 16 may be enforced as if it were an order made in civil proceedings instituted by the State against the person to recover a debt due by the person to the State and the debt arising from the order shall be taken to be a judgment debt.

18. Forfeiture order where person has absconded

(1) Subject to subsection 10(3) where an application is made to the Court under subsection 11(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) he 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 State.

(2) Subsections 11(2), 11(3), 11(4), 11(5), sections 12 and 13 shall apply with such modifications as are necessary to give effect to this section.

19. Registered foreign forfeiture orders

If a foreign forfeiture order is registered in the Court under the Mutual Assistance in Criminal Matters Act 1997 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 subsection 13(3).

Division 3 - Confiscation Orders

20. Confiscation order on conviction

(1) Subject to subsections (1) and (2), where the Director of Public Prosecutions 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 into Court 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 21 to 24.

(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.

21. 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 is 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) (i) all property appearing to the Court to be held by the person on the day on which the application is made; and

(ii) all property 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,

whichever is the shorter, to be property that came into the possession or under the control of the person by reason of the commission of that offence or 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 offences; or

(c) any property received or is 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 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.

22. Statements relating to benefits from commission of serious offences

(1) Where:

(a) a person has been convicted of a serious offence and the Director of Public Prosecutions tenders to the Court a statement as to any matters relevant:

(i) to determining whether the person has benefited from the offence of from any other serious offence of which the person convicted in the same proceedings or which is taken into account in determining his sentences, 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 paragraph (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 matter 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 Director of Public Prosecutions accepts to any extent any allegation in the statement;

the Court may, for the purposes of that determination, treat the acceptance of the Director of Public Prosecutions 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 benefit from the commission of a serious offence is admissible in any proceedings for any offence.

23. 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 22 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.

24. 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 Director of Public Prosecutions 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 subsections 4(5) and 4(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 Director of Public Prosecutions 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.

25. 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 Director of Public Prosecutions, make an order declaring that the property is available to satisfy the order.

(4) Where the Court declares that a 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 Director of Public Prosecutions makes an application for an order under subsection (3) that property is available to satisfy a confiscation order against a person:

(a) the Director of Public Prosecutions shall give written notice of the application to the person and to any other person who the Director of Public Prosecutions has reason to believe may have an interest in the property; and

(b) the person and that other person who claims an interest in the property may appear and adduce evidence at the hearing of the application.

26. Enforcement of confiscation orders

(1) An amount payable by a person to the State under a confiscation order is a civil debt due by the person to the State.

(2) A confiscation order against a person may be enforced as if it were an order made in civil proceedings instituted by the State against the person to recover a debt due by the person to the State 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 Bankruptcy Act.

27. Amounts paid in respect of registered foreign confiscation orders

Where a foreign confiscation order is registered in the Court under the Mutual Assistance in Criminal Matters Act, 1997 any amount paid, whether in Fiji 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 III-PROVISIONS FOR FACILITATING POLICE INVESTIGATIONS AND PRESERVING PROPERTY LIABLE TO FORFEITURE AND CONFISCATION ORDERS

Division 1 - Powers of search and seizure

28. Warrant to search premises etc. for tainted property

(1) A police officer may apply to a Magistrate for a warrant to search premises for tainted property in the same way as a police officer may apply for the issue of a search warrant under Part IV of the Criminal Procedure Code.

(2) Where an application is made under subsection (1), the magistrate may, subject to conditions, issue a search warrant under Part IV of the Criminal Procedure Code and, subject to this Division, the warrant may be executed in the same manner as if it had been issued under Part IV of the Criminal Procedure Code.

29. Defects in warrants

A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

30. Police may seize other tainted property

In the course of a search under a warrant issued under section 28 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, or

(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.

31. 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 Commissioner to return the property to the person and the Commissioner 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, and

(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 Commissioner 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 Commissioner at the end of that period,

(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 Commissioner 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 Commissioner shall:

(d) if the restraining order directs the Attorney-General to take custody and control of the property - arrange for the property to be given to the Attorney-General in accordance with the restraining order; or

(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 under 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 Commissioner,

the Commissioner may apply to the Court that made the restraining order for an order and that the Commissioner 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 Commissioner is to retain the property for so long as the property is so required as evidence as to the commission of that offence.

(7) Where the Commissioner 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 Commissioner, a forfeiture order is made in respect of the property,

the Commissioner shall deal with the property as required by the order.

32. Appointment of Administrator

The Attorney-General may appoint an Administrator to administer property forfeited or subject to any order made or to be enforced under this Act.

33. 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 1997, to apply to a Magistrate 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;

(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 28 in respect of a foreign serious offence;

(d) the reference in paragraph 31(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 subsection 31(4) to a period of 14 days were a reference to a period of 30 days;

(f) the references in subsections 31(5) and 31(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 1997, 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 subsection 31(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 1997 of a foreign forfeiture order; and

(h) section 30 and subsection 31(3) were omitted.

(2) If, in the course of searching under a warrant issued under section 28, 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 28 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

34. 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 Director of Public Prosecutions 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.

35. Restraining orders

(1) Subject to this section, where the Director of Public Prosecutions 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; and

(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,

the Court may make an order:

(e) prohibiting the defendant or any person from disposing of, or dealing with, the property or such part thereof or interest except in the manner specified in the order; and

(f) at the request of the Director of Public Prosecutions, where the Court is satisfied that the circumstances so require - that the Attorney-General to take custody of the property or such part thereof and to manage of otherwise deal with all of any part of the property in accordance with the directions of the Court.

(2) An order under subsection (1) may be made subject to 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:

(a) the person's reasonable living expenses (including the reasonable living expenses of the person's defendants (if any)) and reasonable business expenses;

(b) the person's reasonable expenses in defending a criminal charge and any proceedings under this Act; or

(c) other 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 expenses or debt concerned out of property that is not subject to a restraining order.

(3) In determining whether there are 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 subsection 25(2).

(4) Where the Attorney-General is given a direction under paragraph (1)(f), the Attorney-General 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 Director of Public Prosecutions 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.

36. Undertakings by Attorney-General

(1) Before making an order under section 35, the Court may require the Attorney-General to give an undertaking as to damages or costs, or both, in relation to the making and execution of the order.

(2) For the purposes of this section, the Director of Public Prosecutions may, after consultation with the Attorney-General, give to the Court an undertaking with respect to the payment of damages or costs, or both, as are required by the Court.

37. 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 in interest in the property.

(2) If the Director of public Prosecutions so requests, the Court shall consider the application without requiring notice to be given under subsection (1) but a restraining order 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 Director of Public Prosecutions, extend the period of operation of a restraining order made under subsection (2) but shall not consider the application without requiring notice to be given under subsection (1).

38. 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 a manner as the Court directs or as 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.

39. Further orders

(1) Where the Court makes, or has made, a restraining order, the Court may, on application by the Director of Public Prosecutions, a person whose property is the subject of the restraining order (in this section called "the owner"), the Attorney-General (if the restraining order directs the Attorney-General 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 of the defendant;

(d) provide for the carrying out of any undertaking with respect to the payment of damages or costs given by the State in connection with the making of the restraining order;

(e) direct the owner or the defendant to give a specified person a statement on oath setting out a particulars of the property, or dealings with the property, as the Court thinks fit; or

(f) where the restraining order directs the Attorney-General to take custody and control of property:

(i) regulate the performance or exercise of the Attorney-General 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 Attorney-General 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 the expenses be taxed as provided in the order before being met; or

(v) make provision for the payment to the Attorney-General out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Attorney-General 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 circumstance 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 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 paragraph (2)(c) or (2)(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 the 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.

40. Attorney-General to satisfy confiscation order

(1) Where:

(a) a confiscation order is made against a 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 subsection 25(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 Director of Public Prosecutions, while the restraining order remains in force, direct the Attorney-General to satisfy the confiscation order by a payment to the Consolidated Fund out of the property.

(2) For the purposes of enabling the Attorney-General to comply with a direction under subsection (1), the Court may:

(a) direct the Attorney-General to sell or otherwise dispose of such of the property as the Court specifies, and

(b) order that the Attorney-General 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 an order, the execution of the deed or instrument by the Attorney-General has the same force and validity as if the deed or instrument had been executed by the person.

(3) The Attorney-General shall refrain from taking action to sell property pursuant to a direction under subsection (1):

(a) until the relevant appeal dale; 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.

41. Registration of restraining order

Where a restraining order applies to property of a particular kind and the provisions of any law of Fiji 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 Director of Public Prosecutions, 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, for the purposes of section 42, is deemed to have notice of the restraining order at the time of the dealing.

42. Contravention of restraining orders

(1) A person who knowingly contravenes a restraining order by disposing of, or dealing with, property that is subject to the restraining order commits an indictable offence and is liable on conviction, to:

(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 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 Director of Public Prosecutions may apply to the Court that made the restraining order for an order that the disposition or dealing be set aside.

(3) Where the Director of Public Prosecutions 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 person 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.

43. 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 Director of Public Prosecutions and, if the restraining order directed the Attorney-General to take control of property, the Attorney-General.

44. 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:

(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; or

(e) when property subject to the order is forfeited under section 11 or 18.

(2) Notwithstanding 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 Director of Public Prosecutions, 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 the property may be required to satisfy a confiscation order which has not yet been made.

(3) The Director of Public Prosecutions 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.

45. Interim restraining order may be made in respect of foreign serious offence

(1) Where the Director of Public Prosecutions is authorised, under the Mutual Assistance in Criminal Matters Act 1997, to apply for a restraining order under this Act against any property of a person in respect of a foreign serious offence, the Director of Public Prosecutions 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) 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 paragraph 35(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";

(d) there were substituted for the words of paragraph 35(1)(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";

(e) the reference in paragraph 35(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) paragraphs 35(1)(c) and 35(1)(f), and 39(3)(a), sections 40, 43 and 44 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 Director of Public Prosecutions 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 1997,

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).

46. Registered foreign restraining orders - general

Where a foreign restraining order is registered in the Court under the Mutual Assistance in Criminal Matters Act 1997, this Division applies to the order as if:

(a) section 39, subsection 40(3), subsection 40(4), sections 43 and 44 were omitted;

(b) a reference in section 38, 40, 41 or 42 to a restraining order included a reference to an order under section 47; and

(c) the reference in subsection 40(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 1997 and the making of an order under section 47.

47. Registered foreign restraining orders - Court may direct Attorney-General to take custody and control of property

(1) Where a foreign restraining order against property registered in the Court under the Mutual Assistance In Criminal Matters Act 1997, the Court may, upon application by the Director of Public Prosecutions, order the Attorney-General to take custody and control of the property or part thereof as is specified in the Court's order and to manage or 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, have an interest in the property.

(3) Where the Attorney-General is given an order under subsection (1) in relation to property, the Attorney-General 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 any later time, order:

(a) the respondent to give the Attorney-General a statement on oath setting out such particulars of the property, or dealings with the property, as the Court thinks proper;

(b) the performance or exercise of the Attorney-General's functions, duties or powers under the restraining order;

(c) the determination of 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 - that expenses be taxed as provided in the order before being met; or

(e) the payment to the Attorney-General out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Attorney-General of functions, duties or powers under the restraining order.

48. Registered foreign restraining orders - undertakings

Where:

(a) a foreign restraining order against property is registered in the Court under the Mutual Assistance In Criminal Matters Act 1997; or

(b) the Court makes an order under section 47 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, or an undertaking by the Director of Public Prosecutions, on behalf of the State with respect to the payment of damages or costs in relation to the registration, making or operation of the order.

49. Registered foreign restraining orders - time when order ceases to be in force

A foreign restraining order registered in the Court under the Mutual Assistance in Criminal Matters Act 1997 ceases to be in force when the registration is cancelled in accordance with that Act.

Division 3 - Production orders, and other information gathering powers

50. 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 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 subsection 25(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) the Judge may, if satisfied that there are reasonable grounds for doing so, order 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 paragraph (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.

51. 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 50, 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 paragraph 50(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 retain a document pursuant to an order under section 50, 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:</