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Proceeds of Crime (Amendment) Act 2005

Commencement: 24 February 2006

REPUBLIC OF VANUATU

THE PROCEEDS OF CRIME (AMENDMENT)
ACT NO. 30 OF 2005

Arrangement of Sections

1 Amendment
2 Commencement

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

REPUBLIC OF VANUATU

Assent: 30/12/05
Commencement: 24/02/06

THE PROCEEDS OF CRIME (AMENDMENT)
ACT NO. 30 OF 2005

An Act to amend the Proceeds of Crime Act No. 13 of 2002.

Be it enacted by the President and Parliament as follows-

Amendment

The Proceeds of Crime Act No. 13 of 2002 is amended as set out in the Schedule.

Commencement

This Act commences on the day on which it is published in the Gazette.

________________________

SCHEDULE

AMENDMENTS OF THE PROCEEDS OF CRIME
ACT NO. 13 OF 2002

1 Section 2 (definition of authorised officer)

Repeal the definition, substitute

“authorised officer means:

(a) the Commissioner of Police; or

(b) a police officer authorised by the Commissioner of Police for a provision of this Act; or

2 Section 2 (definition of tainted property)

Repeal the definition, substitute,

“tainted property in relation to a serious offence means:

(a) property, intended for use in, or used in or in connection with the commission of the offence; or

(b) proceeds of crime”.

3 Section 2

Insert in its correct alphabetical positions:

“Counter Terrorism and Transnational Organised Crime Act means the Counter Terrorism and Transnational Organised Crime Act No. 29 of 2005;

terrorist property has the same meaning as provided for under the Counter Terrorism and Transnational Organised Crime Act No. 29 of 2005;

Unit has the same meaning as provided for under the Financial Transactions Reporting Act No. 33 of 2000”.

4 Paragraph 3(a)

Repeal the paragraph, substitute

“(a) a person benefits from a serious offence if the person receives, at any time, any payment or other reward in connection with, or derives any pecuniary advantage from the commission of the offence.”

5 Subsection 11(3)

Repeal the subsection, substitute

“(3) A person engages in money laundering only if the person:

(a) acquires, possesses or uses property or engages directly or indirectly, in an arrangement that involves property that the person knows or ought reasonably to know to be proceeds of crime; or

(b) converts or transfers property that the person knows or ought reasonably to know to be proceeds of crime; or

(c) conceals or disguises the true nature, source location, disposition, movement, ownership of or rights with respect to property that the person knows or ought reasonably to know to be proceeds of crime”.

6 Sections 13 and 14

Repeal the sections.

7 Part 2A

Repeal the Part.

8 Paragraph 16(1)(a)

Delete “reasonable” substitute “14 days (from the date of application)”.

9 Paragraph 16(2)(a)

Delete “reasonable” substitute “14 days (from the date of application)”.

10 Subsection 17(2)

Delete “reasonable” substitute “14 days (from the date of application)”.

11 Subsection 17(4)

Delete “reasonable” substitute “14 days (from the date of application”.

12 Section 19 (heading)

After “absconded” insert “or died”.

13 Paragraph 19(1)(c)

After “absconds” delete “,” substitute “or dies”.

14 Subsection 19(1)

After “absconds” (second occurring) delete “,” substitute “or dies”.

15 After section 21

Insert

“21A Voidable Transfers

The court may:

(a) before making a forfeiture order; or

(b) in the case of property in respect of which a restraining order was made- when the order was served in accordance with section 54,

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the restraining order, unless the conveyance or transfer was made for valuable consideration to a person acting in good faith and without notice.”

16 Subsection 30(2)

After “If” insert “a statement under subsection (1) has been tendered by the Attorney General and”.

17 Section 37 (heading)

After “property” insert “or terrorist property”.

18 At the end of subsection 37(1)

Add “or terrorist property”.

19 Paragraph 37(2)(b)

After “property” insert “or terrorist property”.

20 Paragraph 37(3)(b)

Repeal the paragraph, substitute

“(b) an information has been laid or will be laid within 48 hours for the relevant offence in relation to the tainted property or a forfeiture order under section 19 of the Counter Terrorism and Transnational Organised Crime Act No. of 2005 has been or will be made within 14 days against the terrorist property.”

21 Section 38 (heading)

After “property” insert “or terrorist property”.

22 Paragraph 38(1)(a)

Repeal the paragraph, substitute

“(a) for believing the other thing to be tainted property in relation to a serious offence or to be terrorist property, or to afford evidence about the commission of a criminal offence, or the existence of terrorist property in Vanuatu; or”.

Paragraph 39(2)(b) and (c)

Repeal the paragraphs, substitute

“(b) the property is not tainted property or terrorist property; and

(c) in the case of tainted property, the person in relation to whose conviction, charging or proposed charging the property was seized has no interest in the property.”

24 Section 40

Repeal the section, substitute

“40 Return of seized property if no information laid in relation to offence for tainted property or forfeiture order made against terrorist property

If:

(a) property has been seized under subsection 38(1); and

(b) when the property was seized, an information had not been laid in relation to an offence because of which the property is tainted or a forfeiture order had not been granted in relation to the terrorist property; and

(c) an information is not laid, in relation to an offence because of which the property is tainted, within 48 hours after the property was seized, or a forfeiture order had not been granted in relation to the terrorist property within 14 days;

the Attorney General must ,subject to section 42, 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 48 hours or 14 days”.

25 Section 41 (heading)

After “seized”, insert “tainted”.

26 Paragraph 41(a)

Before “property” insert “tainted”.

27 Paragraphs 41(c)

Repeal the paragraph, substitute

“(c) the Attorney General does not apply for a forfeiture order under section 20 of this Act within 14 days after the proceedings are completed; and.”

Subsection 42(3)

After “offence”, insert “or is terrorist property”.

Division 2 (heading)

Repeal the heading, substitute

“Search for and seizure of tainted property in relation to foreign offences or terrorist property”

30 Subsection 44(1)

After “offence” substitute “or for terrorist property”.

31 Section 45 (heading)

After “property” insert “or terrorist property”.

32 Subsection 45(1)

After “offence” (first occurring) insert “or terrorist property”.

33 Paragraph 45(1)(a)

After “offence” insert “or terrorist property”.

34 Subparagraph 45(1)(b)(ii)

After “offence” insert “or the existence of the terrorist property”.

35 Paragraphs 46(2)(b) and (c)

Repeal the paragraphs, substitute

“(b) the property is not tainted property or terrorist property; or

(c) in the case of tainted property- the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property”.

Subparagraph 48(1)(c)(ii)

Delete “for the foreign serious offence”.

Subsection 48(4)

Repeal the subsection, substitute

“(4) The court may, if satisfied that there are reasonable grounds for believing that the property may afford evidence as to the commission of an offence or that the property is terrorist property, order that the Attorney General may retain the property for as long as the property is so required as evidence or is so required”.

Paragraph 50(1)(b)

Delete “.”

Insert

“; or

Subsection 50 (3)

After “order” (first occurring) insert “under paragraph 1(a) or (b)”.

40 Paragraph 50(1)(g)

Delete “.”

Insert

“; or

(h) the grounds for believing that a forfeiture order under section 20 maybe or is likely to be made in respect of the property”.

41 At the end of section 50

Add

“(4) An application for a restraining order under paragraph 1(c) must be in writing and must be accompanied by an affidavit stating:

(a) the grounds for believing that the property is terrorist property and that a forfeiture order under section 19 of the Counter Terrorism and Transnational Organised Crime Act No of 2005 may be or is likely to be made against the property; and

(b) a description of the property against which the restraining order is sought ; and

Paragraph 51(1)(a)

Delete “reasonable” substitute “14 days”.

43 Subsection 52(1)

After “property” (first occurring) insert “under Paragraphs 50(1)(a) or (b)”.

44 Paragraph 52(1)(d)

Delete “.”

Insert

“; or

(e) there are reasonable grounds for believing that a forfeiture order under section 20 may or is likely to be made in respect of the property.”

After subsection 52(1)

Insert

"(1A) The Court may make a restraining order against property under paragraph 50(1)(c) if it is satisfied that there are reasonable grounds for believing that the property is terrorist property and that a forfeiture order under section 19 of the Counter Terrorism and Transnational Organised Crime Act No. of 2005 may or is likely to, be made against the property”.

Subsection 52 (2)

Delete “The order may”, substitute “An order under this section may”.

Subsection 52(3)

After “defendant” insert “under subsection (1)”.

Subsection 52(4)

Repeal the subsection, substitute

“(4) An order under this section may be subject to any conditions that the court thinks fit and, without limiting this subsection, may provide for meeting, out of the property or a specified part of it, all or any of the following:

(a) the reasonable living expenses of any person affected by the order (including the reasonable living expenses of the person’s dependants if any) and reasonable business expenses;

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

Paragraph 55(3)(a)

After “order” insert “or the interest is not terrorist property”.

Paragraph 55(3)(b)

Before “the applicant”, insert “in the case where the interest is tainted property-"

After paragraph 55(3)(b)

Insert

“(ba) in the case where the interest is terrorist property- 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 terrorist property; or”.

Subsection 55(4)

Delete “reasonable” substitute “14 days”.

Section 61

After “serious offence” insert “or against any terrorist property”.

Subsection 63(1)

After “defendant” insert “or any terrorist property”.

Paragraph 63(1)(b)

Delete “.”

Insert

“; or

Subsection 63(3)

Delete “The application” substitute “An application under Paragraphs (1)(a) or (b)”.

Paragraph 63(3)(g)

Delete “.”

Insert

“; or

(h) the grounds for believing that a forfeiture order under section 20 maybe or is likely to be made in respect of the property.

58 At the end of section 63

Add

“(4) An application under paragraph 1(c) must be in writing and must be accompanied by an affidavit stating:

(a) the grounds for believing that the property is terrorist property and that a foreign forfeiture order may be or is likely to be made against the property; and

(b) a description of the property against which the restraining order is sought ; and

Subsection 65(1)

After “order” insert “under paragraph 63(1)(a) or (b)”.

Paragraph 65(1)(d)

Delete “.”

Insert

“; or

(e) there are reasonable grounds for believing that a forfeiture order under section 20 maybe or is likely to be made in respect of the property.”

After subsection 65(1)

Insert

“(1A) The court may make an interim restraining order against property under paragraph 63(1)(c) if it is satisfied that there are reasonable grounds for believing that the property is terrorist property and that a foreign forfeiture order may or is likely to, be made against the property.

Paragraph 68(3)(a)

Before “that” (first occurring) insert “in the case where the interest is tainted property”.

After paragraph 68(3)(a)

Insert

“(aa) in the case where the interest is terrorist property- 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 terrorist property; or”

Part 5- Suspicious currency movements

Section 80

Before the section, insert

“79A Currency reporting at the boarder

(1) A person who leaves or arrives in Vanuatu with more than VT 1,000,000 in cash or negotiable bearer instruments on his or her person or on his or her luggage without first having reported the fact to the Department of Customs, commits an offence punishable on conviction by a fine not exceeding VT 1,000,000 or imprisonment for 2 years or both.

(2) A person who, without reasonable excuse, makes or causes to be made a cash report to the Department of Customs, knowing that it is false or misleading in any material respect is guilty of an offence punishable, on conviction by a fine not exceeding VT 1,000,000 or imprisonment for 2 years or both.

(3) For the purpose of this part, “negotiable instrument” means a document representing ownership of debts or obligations, including bills of exchange or promissory note, whether made payable to the bearer or otherwise.

(4) When a person is about to leave Vanuatu or has arrived in Vanuatu, or is about to board or leave, or has boarded or left, any ship or aircraft, an authorized officer may with such assistance as is reasonable and necessary and with the use of force if necessary:

(a) examine any article which a person has with him or her or in his or her luggage; and

(b) if the officer has reasonable grounds to suspect that an offence under subsection (1)has been or is likely to be committed , search the person

for the purpose of determining whether the person has in his or her possession any cash or negotiable bearer instrument in respect of which a report under subsection (1) is required.

(5) A person must only be searched by an authorized officer of the same sex.

(6) An authorized officer and any person assisting such officer, may stop, board and search any ship or aircraft for the purpose of exercising the powers under this section.

(7) Where an authorized officer has reasonable grounds for believing that cash or negotiable bear instruments found in the course of an examination or search under this section may afford evidence as to the commission of an offence under this section the authorized officer may seize and detain the cash or negotiable bearer instruments.

(8) An authorised officer who has seized cash or negotiable bearer instruments under this section or section 80 must report such seizure to the unit.

(9) A person who, otherwise than by force, wilfully obstructs any authorised officer in the exercise or performance of any power or duty conferred or imposed on that officer by this Part is guilty of an offence punishable, on conviction by a fine not exceeding VT 1,000,000 or imprisonment for 2 years or both.

79B Detention of seized currency

(1) Currency detained under section 79A may not be detained for more than 24 hours after it is seized.

(2) The authorized officer may apply to the Court that the seized currency be continued to be detained

(3) The Court may order that the seized currency be continued to be detained for a period not exceeding 3 months from the day it was seized, upon being satisfied that:

(a) there are reasonable grounds for the suspicion mentioned in paragraph 79A(1); and

(b) the continued detention of the seized currency is justified while:

(i) its origin or derivation is further investigated; or

(ii) consideration is given to the institution (in Vanuatu or elsewhere) of criminal proceedings against a person for an offence with which the currency is connected.

(4) The Court may subsequently order the continued detention of the currency if satisfied of the matters mentioned in paragraphs 2(a) and (b), however, the maximum period of detention must not exceed 2 years from the date of the first order made under subsection (2).

79C Released of detained currency

(1) Currency detained under section 79B may be released in whole or in part to the person from whom it was seized if:

(a) an application by or for that person and after considering any views of the Attorney General to the contrary, the Court orders that its continued detention is no longer justified; or

(b) an authorised officer is satisfied that its continued detention is no longer justified.

(2) Currency detained under section 79B must not be released if:

(a) an application is made for:

(i) a confiscation order against the whole or part of the currency; or;

(ii) a restraining order against it pending determination of its liability to confiscation; or

(iii) the registration of a foreign confiscation order or foreign restraining order against it; or

(b) proceedings are underway in Vanuatu or elsewhere against a person for an offence with which the currency is connected;

unless the proceedings relating to the relevant application, or the proceedings for the offence, have been concluded.”

After Division 5

Insert

“Division 6 Production Orders

82A Application for a production order

(1) If an authorised officer has reasonable grounds for believing that a person has been, is or will be involved in the commission of a serious offence, and that a person (other than the first-mentioned person) has possession or control of a document relevant to:

(a) identifying, locating or quantifying property of the first-mentioned person; or

(b) identifying or locating any document necessary for the transfer of property of the first-mentioned person; or

(d) identifying or locating any document necessary for the transfer of tainted property in relation to the offence;

the officer may apply to the court for a production order against the person having possession or control of the document.

(2) If an authorised officer has reasonable grounds for believing that a person has possession or control of a document relevant to:

(a) identifying, locating or quantifying terrorist property; or

(b) identifying or locating any document relevant for the transfer of terrorist property;

the officer may apply to the court for a production order against the person having possession or control of the document.

(3) An application under subsection (1) or (2) may be made ex parte and must be in writing and supported by an affidavit.

(4) The court if it is satisfied that there are reasonable grounds to do so may make an order requiring the person to produce to the authorised officer at a specified time and place any documents referred to in subsection (1) or (2).

(5) The authorised officer to whom the documents are produced may:

(a) inspect the documents; or

(b) make copies of the documents; or

(6) If the authorized officer retains the documents produced to him or her, he or she must make a copy of the documents available to the person who produced them.

(7) A person is not entitled to refuse to produce any document required under a production order on the ground that production of the document:

(a) may incriminate him or her, or cause him or her to be liable to a penalty; or

(b) will be in breach of his or her obligation (whether statutory or otherwise) not to disclose the existence and/or the content of the document.

82B Evidential value of documents produced or information obtained

(1) If a person produces a document under subsections 82A(1) or (2), the document, or any information, or thing obtained as a direct or indirect consequence of the production of the document, is not admissible against him or her in any criminal proceedings except for proceedings under section 82C.

(2) For the purposes of subsection (1), proceedings on an application for a forfeiture order, a pecuniary penalty order or a restraining order are not criminal proceedings.

82C Failure to comply with a production order

(1) If a person is required to produce a document under a production order, the person is guilty of an offence if he or she:

(a) contravenes the order [without reasonable cause]; or

(b) produces a document known to him or her to be false or misleading in a material particular and he or she does not indicate to the authorised officer that the document is false or misleading and the respect to which the document is false or misleading and provide the correct information to the authorised officer.

(2) A person who is guilty of an offence under subsection (1) is punishable on conviction by:

(a) if the person is a natural person – a fine not exceeding VT 1,000,000 or imprisonment for 2 years, or both; or

(b) if the person is a body corporate – a fine not exceeding VT 5,000,000.

82D Production orders in relation to foreign serious offences

If a foreign State requests assistance in obtaining documents of the type described in subsection 79A (1) or (2) in respect of a foreign serious offence or property suspected to be terrorist property, the provisions of this Division apply provided that the Attorney-General has under section 48 of the Mutual Assistance in Criminal Matters Act No. 14 of 2002 authorised the giving of the assistance to the foreign State.

82E Power to search for and seize documents relevant to locating property

An authorised officer may:

(a) enter upon land or upon or into premises;

(b) search the land or premises for any documents of the type described in subsections 82A (1) or (2); and

(c) seize any document found in the course of the search that the authorized officer believes on reasonable grounds to be a relevant document in relation to a serious offence or terrorist property;

provided that the entry, search and seizure is made with the consent of the owner or occupier of the land or premises, or under warrant issued under section 82F.

82F Search warrant for documents relevant to locating property

(1) Where an authorised officer has reasonable grounds for suspecting that there is, or may be, within the next 48 hours, upon any land or upon or in any premises, a document of the type described in subsection 82A (1) or (2), the officer may make an application accompanied by an affidavit to the court for a search warrant in respect of that land or premises.

(2) Where an application is made under subsection (1), the court may, subject to subsection (4), issue a search warrant authorising the authorised officer , with such assistance and by such force as is necessary and reasonable:

(a) to enter upon the land or upon or into the premises;

(b) to search the land or premises for documents of the type described in subsection 82A(1) or (2); and

(c) to seize any document found in the course of the search that the officer has reasonable grounds for believing to be such documents.

(3) The court shall not issue a search warrant under subsection (2) unless it is satisfied that:

(a) a production order has been given in respect of the document and the order has not been complied with; or

(b) a production order is unlikely to be complied with; or

(c) the investigation for the purposes for which the warrant is being sought might be seriously prejudiced if the authorised officer does not gain immediate access to the document without notice to any person; or

(d) the document involved cannot be identified or described with sufficient particularity to enable a production order to be obtained.

(4) A search warrant issued under this section shall state:

(a) the purpose for which it is issued, including a reference to the nature of the relevant offence, if any;

(b) a description of the kind of documents authorised to be seized;

(d) whether entry is authorised to be made at any time of the day or night or during specified hours.

(5) If during the course of conducting a search under a search warrant issued under this section, an authorised officer finds:

(a) a document of the type described under subsection 82A(1) or (2) that the officer has reasonable grounds for believing to relate to the relevant offence, to another serious offence or to terrorist property; or

(b) anything that the officer has reasonable grounds for believing will afford evidence to the commission of a serious offence;

the officer may seize that property or thing and the warrant shall be deemed to authorise such seizure.

82G Search warrant in relation to foreign offences

Division 7 – Monitoring Orders

82H Application for a monitoring order

(1) An authorised officer may apply to the court for a monitoring order directing a financial institution to provide information to him or her if he or she has reasonable grounds for believing or suspecting that:

(a) the person in respect of whose account the order is sought has committed or was involved in the commission, or is about to commit or be involved in the commission of, a serious offence; or

(b) the person in respect of whose account the order is sought has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a serious offence; or

(2) An application under subsection (1) may be made ex parte and must be in writing and supported by an affidavit.

(3) The court, if it is satisfied that there are reasonable grounds to do so, may make an order directing a financial institution to disclose to an authorized officer information obtained by the institution about transactions conducted through an account of a person with the institution if it is satisfied that there are reasonable grounds to do so.

(4) A monitoring order granted under subsection (3) must:

(a) specify the name of the person in respect of whose account the order is sought; and

(b) specify the class of information the financial institution is required to give; and

82I Failure to comply with a monitoring order

(1) If a monitoring order has been made on financial institution, the institution is guilty of an offence if it:

(a) contravenes the order [without reasonable cause]; or

(b) provides information known to it to be false or misleading in a material particular and it does not indicate to the authorised officer that the document is false or misleading and the respect to which the document is false or misleading and provide the correct information to the authorised officer.

(2) A financial institution which is guilty of an offence under subsection (1) is punishable on conviction by a fine not exceeding VT 5,000,000.

82J Non-disclosure of monitoring orders

(1) A financial institution that is, or has been subject to a monitoring order, its officers, employees or agents or any other person shall not disclose the existence or operation of the order to any person except:

(a) an officer, employee or agent of the institution for the purpose of ensuring compliance with the order; or

(b) a legal advisor for the purpose of obtaining legal advice or representation in respect of the order.

(2) A person described under paragraph (1)(a) or (b) shall not disclose the existence or operation of a monitoring order except to another such person and for the purpose of carrying out the person’s duties or functions.

(3) Nothing in subsection (1) or (2) prevents the disclosure of information concerning a monitoring order for the purposes of, or in connection with, legal proceedings, [provided that nothing in this subsection shall be construed as requiring a legal advisor to disclose to any court the existence or operation of a monitoring order].

(4) A person who is guilty of an offence under subsection (1) or (2) is punishable on conviction by:

(a) if the person is a natural person – a fine not exceeding VT 1,000,000 or imprisonment for 2 years, or both; or

(b) if the person is a body corporate – a fine not exceeding VT 5,000,000.”

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