|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Vanuatu Sessional Legislation |
Commencement: 20 August 1990
REPUBLIC OF VANUATU
THE SERIOUS OFFENCES (CONFISCATION OF PROCEEDS) ACT
No. 50 OF 1989
Arrangement of Sections
PART 1 - INTERPRETATION
1. Interpretation.
PART 2 - CONFISCATION ORDERS
2. Application for confiscation order.
3. Decision on application for confiscation order.
4. Confiscation orders.
5. Confiscation orders - supplementary provisions.
6. Discharge of confiscation order.
PART 3 - RESTRAINING ORDERS
7. Interpretation for the-purposes of Part 3.
8. Application for restraining order.
9. Restraining order.
10. Appointment of receiver.
11. Court may make further orders.
12. Charge on property subject to restraining order.
13. Registration of restraining order.
14. Discharge of restraining order.
PART 4 - ENFORCEMENT OF EXTERNAL ORDERS, ETC
15. Effect of registration of order in nature of confiscation order.
16. Effect of registration of order in nature of restraining order.
17. Restraining order in respect of foreign offence.
PART 5 - OFFENCES AND INVESTIGATIONS
18. Definitions for purposes of Part 5.
19. Money laundering.
20. Possession, etc., property suspected of being proceeds of serious offence.
21. Offences of contravening restraining order.
22. Production orders.
23. Variation of production order.
24. Failure to comply with production order.
25. Production order pursuant to request.
26. Powers to search for, and seize, documents relevant to locating, etc., property.
27. Search warrant for location, etc., property.
28. Search warrant pursuant to request.
PART 6 - MISCELLANEOUS PROVISIONS
29. Appeals.
30. Standard of proof.
31. Minister to make regulations.
32. Commencement.
Schedule.
----------------------------------------------
REPUBLIC OF VANUATU
THE SERIOUS OFFENCES (CONFISCATION OF PROCEEDS) ACT
No. 50 OF 1989
ASSENT: 27/12/89
COMMENCEMENT: 20/8/90
An Act to make provision for the confiscation of the proceeds of certain crimes and for connected or related matters.
BE IT ENACTED by the President and Parliament as follows:-
PART 1 - INTERPRETATION
INTERPRETATION
1. (1) In this Act, unless the context otherwise requires -
"appropriate person" means -
(a) the Public Prosecutor; and
(b) a person, or a person of a class or description of persons, prescribed for the purposes of any provision of this Act in which the expression occurs;
"confiscation order" means an order made under section 4;
"defendant" means -
(a) in Part 2, and the Schedule, a person against whom an application for a confiscation order, or a confiscation order, is made; or
(b) in Part 3, a person against whom an application for a restraining order, or a restraining order, is made;
"foreign serious offence" means an offence against the law of a country the maximum penalty for which is death, or imprisonment for not less than 3 years, or the proceeds from the commission of which is not less than such amount as may be prescribed by or under the law of that country;
"property" includes money and all other property, real or personal, heritable or movable, including things in action and other intangible or incorporeal property;
"restraining order" means an order made under section 9;
"serious offence" means an offence the maximum penalty for which is imprisonment for not less than 3 years or the proceeds from the commission of which is not less than one million vatu or such greater sum as may be prescribed.
(2) Reference in this Act to anything received in connection with the commission of a serious offence includes a reference to anything received both in that connection and some other connection.
(3) For the purposes of this Act, a person shall be deemed to have been charged with a serious offence if any information has been laid against the person for the offence, whether or not -
(a) a summons to require the attendance of the person to answer to the information; or
(b) a warrant for the apprehension of the person
has been issued.
(4) Where -
(a) a person is convicted of a serious offence; and
(b) with his consent another serious offence, of which he has not been found guilty, is taken into account by the court in passing sentence for the offence referred to in paragraph (a),
the person shall, for the purposes of this Act, be deemed to have been convicted by the court of the offence so taken into account on the date on which the sentence was so passed.
(5) For the purposes of this Act -
(a) a person obtains proceeds from the commission of an offence if he receives a payment or other reward, or derives a pecuniary advantage, as a result of -
(i) the commission of the offence; or
(ii) any part of a course of conduct the person, alone or in association with any other person, having as its purpose or one of its purposes the carrying out or furtherance of criminal activities, of which the commission of the offence is shown to be part; and
(b) the value of those proceeds is the aggregate of the values of the payments, rewards or pecuniary advantages so received or derived.
PART 2 - CONFISCATION ORDERS
APPLICATION FOR CONFISCATION ORDER
2. (1) An application for a confiscation order against a person in respect of any serious offence of which the person has been convicted may be made by an appropriate person in accordance with this section.
(2) An application under, subsection (1) may be made -
(a) to -
(i) the court before which the defendant was convicted; or
(ii) the Supreme Court; and
(b) in respect of one, or more than one, serious offence.
(3) Where an application under subsection (1) in respect of an offence has been determined on its merits no further application for a confiscation order against that person in respect of that offence shall be made unless the court gives leave on being satisfied -
(a) that a determination on the further application, pursuant to section 3(1)(a), would be in relation only to alleged profits obtained by the person which were not identified until after the determination of the previous application; and
(b) that it is in the interests of justice that the further application be made.
(4) The appropriate person making an application under subsection (1) shall give notice of the application to the defendant.
(5) An application under subsection (1) shall not be made in respect of an offence after the expiration of the period of 12 months after the day on which the defendant was convicted of the offence.
DECISION ON APPLICATION FOR CONFISCATION ORDER
3. (1) The court to which an application is made under section 2(1) -
(a) shall determine whether the defendant obtained proceeds from the commission of any serious offence in respect of which the application is made; and
(b) shall, if it determines that he has so obtained proceeds, assess the value of the proceeds.
(2) Where an application is made under section 2(1) in respect of more than one offence, the court -
(a) shall make a separate determination under subsection (1)(a) in respect of each offence; and
(b) may, where it makes an affirmative determination in respect of more than one offence, make a single assessment under subsection (1)(b) in respect of the offences.
(3) The Schedule shall apply for the purpose of the making of a determination or assessment under subsection (1).
CONFISCATION ORDERS
4. (1) Where the court makes an affirmative determination under section 3(1)(a), it may order the defendant to pay to the Government pecuniary penalty of such amount as it thinks fit, but not exceeding the value of the profits assessed pursuant to section 3(1)(b).
(2) A confiscation order shall -
(a) specify the offence or, as the case may be, the offences in respect of which it is made; and
(b) if it is made in respect of more than one offence, indicate the amount of the pecuniary penalty attributable, in the opinion of the court, in relation to each of the offences.
(3) An amount payable by a defendant to the Government under a confiscation order is, for all purposes, deemed to be a civil debt due to the Government.
(4) A confiscation order made by a court may be enforced as if it were an order made by the court in civil proceedings instituted by the Government against the defendant to recover a debt due by him to the Government.
CONFISCATION ORDERS - SUPPLEMENTARY PROVISIONS
5. (1) Subject to subsection (2), where a person is convicted of a serious offence, a confiscation order in respect of the offence may be made either -
(a) before; or
(b) after,
the person is sentenced or otherwise dealt with for the offence.
(2) Where a person is deemed to have been convicted of a serious offence by virtue of section 1(4), a confiscation order may be made in respect of the offence after the defendant is deemed to have been so convicted.
(3) Where a confiscation order is made as provided in -
(a) subsection (1)(a), the court shall, when so sentencing or otherwise dealing with the defendant, take account of the confiscation order before -
(i) imposing a fine on the defendant; or
(ii) making any order involving any payment by the defendant by way of restitution or compensation,
but subject to that, shall leave the confiscation order out of account in determining the appropriate sentence or other manner of dealing with the defendant;
(b) subsection (1)(b), the court shall, when determining the amount of the pecuniary penalty under section 4(1), take account of -
(i) any fine imposed on the defendant; and
(ii) any order made which involves a payment by the defendant by way of restitution or compensation, in respect of the serious offence; or
(c) subsection (2), the court shall; when determining the amount of the pecuniary penalty under section 4(1), take account of -
(i) any fine imposed on the defendant; and
(ii) any order made which involves a payment by the defendant by way of restitution or compensation,
in respect of the serious offence of which the person was convicted, as provided in section 1(4)(a).
DISCHARGE OF CONFISCATION ORDER
6. (1) A confiscation order against a defendant is discharged on the occurrence of any of the following events, namely -
(a) the defendant's conviction for the serious offence or, as the case may be, for each of the serious offences, in respect of which the order was made, ceasing to have effect;
(b) the confiscation order being quashed on appeal; or
(c) the satisfaction of the amount of the pecuniary penalty under the confiscation order.
(2) Where a confiscation order is made in respect of more than one offence, and the conviction for one, or more than one but not all, of those offences ceases to have effect, the order is not discharged, but the amount of the pecuniary penalty under the order is deemed to have been reduced by the amount attributable, pursuant to section 4(2)(b), in relation to each offence so ceasing to have effect.
(3) For the purpose of this section, a conviction for a serious offence ceases to have effect -
(a) if the conviction is quashed on appeal, or a pardon is granted by the President in respect of the conviction; or
(b) where the defendant is deemed to have been convicted of the offence by virtue of section 1(4), if the conviction for the serious offence referred to in section 1(4) (a) ceases to have effect.
PART 3 - RESTRAINING ORDERS
INTERPRETATION FOR THE PURPOSES OF PART 3
7. For the purposes of this Part, proceedings against a defendant for a serious offence cease to have effect-
(a) if the proceedings are discontinued;
(b) if the defendant is acquitted;
(c) if his conviction for the offence is quashed on appeal; or
(d) if a pardon is granted by the President in respect of the offence.
APPLICATION FOR RESTRAINING ORDER
8. (1) An application for a restraining order against a person in respect of any serious offence with which the person-
(a) has been; or
(b) is about to be,
charged may be made by an appropriate person in accordance with this section.
(2) An application under subsection (1) may be made-
(a) ex parte to the Supreme Court; and
(b) in respect of one, or more than one, serious offence.
(3) An application under subsection (1) shall be supported by an affidavit of a member of the Vanuatu Police Force -
(a) stating that the member believes that the defendant committed the serious offence or, as the case may be each of them, and obtained profits from the commission; and
(b) setting out the basis of the belief.
(4) An application under subsection (1) for a restraining order against a defendant shall not be made or continued in respect of a serious offence if proceedings against the defendant for the offence cease to have effect.
RESTRAINING ORDER
(1) Where, on an application under section 8, the Supreme Court is satisfied-
(a) as to the matter referred to in section 8(1)(a) or (b); and
(b) that there is reasonable cause to believe that the defendant has obtained profits from the commission of any serious offence in respect of which the application is made,
to court may, by order, prohibit any person from dealing with any property to which the order applies, subject to such conditions as may be specified in the order.
(2) A restraining order may apply to -
(a) property described in the order, being property -
(i) of the defendant; or
(ii) received in connection with, or derived from, the commission of the offence and held by a person, other than the defendant, named in the order; or
(b) all property of the defendant, whether described in the order or not, and including property acquired by the defendant after the making of the order.
(3) A restraining order shall identify the defendant and the offence or, as the case may be, the offences in respect of which it is made.
(4) A restraining order shall provide for notice to be given to persons affected by the order.
(5) The conditions, subject to which a restraining order may be made, include conditions with respect to the meeting of the reasonable living and business expenses of the person, to whose property the order applies, out of that property or a specified part of it.
(6) The Supreme Court may refuse to make a restraining order if the defendant -
(a) gives security, satisfactory to the court for the satisfaction of any future pecuniary penalty which may be imposed under a confiscation order made in respect of any serious offence to which the application of the restraining order relates; or
(b) gives undertakings satisfactory to the court concerning his property.
7. For the purposes of this section, dealing with property held by a person includes-
(a) where a debt is owed to that person, making a payment to, any person in reduction of the amount of the debt; and
(b) removing the property from Vanuatu.
APPOINTMENT OF RECEIVER
10. (1) The Supreme Court may, when it makes a restraining order, or at a later time, on the application of an appropriate person or on its own motion, appoint a receiver -
(a) to take possession of any property to which the order applies; and
(b) in accordance with the court's direction, to manage or otherwise deal with any property in respect of which he is appointed, subject to such exceptions and conditions as may be specified by the court.
(2) The Supreme Court may require any person having possession of property in respect of which a receiver is appointed under this section to give control or possession of it to the receiver.
(3) Subject to subsection (4), when a restraining order in relation to which a receiver is appointed under this section, is discharged -
(a) the appointment of the receiver ceases; and
(b) any property in respect of which the receiver was appointed and which is then in his possession or under his control shall be dealt with by the receiver in accordance with the court's directions.
(4) Where a restraining order is discharged pursuant to section 14(1)(b), any property in respect of which the receiver was appointed and which is then in his possession or under his control shall be made available by the receiver, to the extent necessary, to satisfy the amount of the pecuniary penalty under the confiscation order, unless the Supreme Court otherwise directs.
(5) Where, pursuant to subsection (3)(b), the Supreme Court so directs, a receiver may satisfy any amount due in respect of his remuneration and expenses out of property such as is referred to in subsection (3)(b).
(6) The Supreme Court may, on application of an appropriate person or on its own motion, -
(a) vary the conditions or, exceptions subject to which a receiver is appointed under this section; or
(b) revoke the appointment of a receiver so appointed.
(7) Where a receiver takes any action -
(a) in relation to property which is not property in respect of which he was appointed, being action which he would be entitled to take if it were such property; and
(b) believing and having reasonable ground for believing, that he is entitled to take that action in relation to that property,
he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.
COURT MAY MAKE FURTHER ORDERS
11. (1) The Supreme Court may, when it makes a restraining order or at any later time, on application made to it or on its own motion, make one or more of the following orders namely -
(a) an order varying the property to which the restraining order applies;
(b) an order varying any condition to which the restraining order is subject;
(c) an order for the examination of the defendant, or any other person whether affected by the order or not, before the Supreme Court, or a prescribed person, concerning the nature and location of any property to which the order relates; or
(d) an order relating to the carrying out of any undertaking given under section 9(6) in relation to the restraining order.
(2) A person is not required in an examination referred to in subsection (1)(c) to answer any question that might tend to incriminate him.
(3) A statement or disclosure made by a person in answer to a question put in the course of an examination referred to in subsection (1)(c) is admissible against him in-
(a) any civil proceeding;
(b) a proceeding for giving false testimony in the course of the examination; or
(c) a proceeding for the making of a confiscation order, for the purpose only of assessing the value of the profits of the person from the commission of the offence,
but is not otherwise admissible in evidence against him.
(4) An application under subsection (1) may be made-
(a) by an appropriate person;
(b) by the defendant; or
(c) with leave of the Supreme Court, by another person.
(5) The Minister may, after consultation with the Chief Justice, by order, designate a person, or a person of a class or description of persons, as a prescribed person for the purposes of subsection (1)(c).
CHARGE ON PROPERTY SUBJECT TO RESTRAINING ORDER
12. (1) Subject to subsection (2), where a restraining order is discharged pursuant to section 14(1)(b), then, by virtue of this subsection, a charge is created on property to which the restraining order applied immediately before it was so discharged, to secure the payment to the Government of the amount of the pecuniary penalty under the confiscation order.
(2) Subsection (1) does not apply in relation to any property to which section 10(4) applies.
(3) A charge on property created by subsection (1) ceases to have effect if any of the following events occur, namely-
(a) the confiscation order is discharged;
(b) the property is disposed of with the consent of the Supreme Court; or
(c) the property is sold to a purchaser in good faith for value who, at the time of the purchase, had no notice of the charge.
(4) A charge created by subsection (1) -
(a) is subject to every encumbrance to which the property was subject immediately before the confiscation order was made but has priority over all other encumbrances; and
(b) subject to subsection (3), remains on the property despite any disposal of the property.
(5) If-
(a) a charge is created by subsection (1) on property of a particular kind; and
(b) any law of Vanuatu provides for the registration of charges on property of that kind,
an appropriate person may cause the charge so created to be registered under that law.
(6) If the charge is registered under subsection (5), a person who purchases the property after the registration of the charge is, for the purposes of subsection (3)(c), to be taken to have had notice of the charge.
REGISTRATION OF RESTRAINING ORDER
13. (1) If -
(a) a restraining order applies to property of a particular kind; and
(b) any law of Vanuatu provides for the registration of title to, or encumbrances on, or documents relating to, property of that kind,
the relevant registration authority under that law shall, on application to it by an appropriate person, record on the register the prescribed particulars of the restraining order.
(2) If the prescribed particulars are so recorded, a person who disposes of, or otherwise deals with the property after the recording of those particulars is, for the purposes of section 21, deemed to have notice of the restraining order.
DISCHARGE OF RESTRAINING ORDER
14. (1) A restraining order against a defendant in respect of a serious offence is discharged on the occurrence of any of the following events, namely -
(a) the proceedings against the defendant for the serious offence ceasing to have effect;
(a) the making of a confiscation order against the defendant in respect of the serious offence;
(b) the failure to make a confiscation order in respect of the offence pursuant to an application made within the period referred to in section 2(5); or
(c) the discharge of the order pursuant to subsection (3) or (4).
(2) Where a restraining order is made against a defendant in respect of more than one offence, and the proceedings against the defendant for one, or more than one but not all, of the offences ceases to have effect, the order is discharged only in relation to the offence or offences the proceeding for which have ceased to have effect.
(3) The Supreme Court may, on application by the defendant, discharge a restraining order if the defendant gives security or undertakings of the kind referred to in section 9(6).
(4) Where a restraining order is made against a defendant in respect of a serious offence with which the defendant is about to be charged, the order is discharged if he is not so charged within 48 hours after the making of the order.
PART 4 - ENFORCEMENT OF EXTERNAL ORDERS, ETC
EFFECT OF REGISTRATION OF ORDER IN NATURE OF CONFISCATION ORDER
15. (1) Where -
(a) in any country an order, similar in nature to a confiscation order, is made against a person in respect of a foreign serious offence; and
(b) the order is registered by the Supreme Court pursuant to the Mutual Assistance in Criminal Matters Act No. 52 of 1989,
Part 2 shall have effect as if the order had been made under that Part, subject to such modifications as may be prescribed, as it has effect in relation to a confiscation order.
(2) Where an order is registered as provided in subsection (1)(b), any amount paid (whether in Vanuatu or elsewhere) in satisfaction of the pecuniary penalty under the order shall be taken to have been made in satisfaction of the debt that arises by reason of that registration.
EFFECT OF REGISTRATION OF ORDER IN NATURE OF RESTRAINING ORDER.
16. Where-
(a) in any country an order, similar in nature to a restraining order, is made against a person in respect of a foreign serious offence; and
(b) the order is registered by the Supreme Court pursuant to the Mutual Assistance in Criminal Matters Act No. 52 of 1989,
Part 3 shall have effect as if the order had been made under that Part, subject to such modifications as may be prescribed, as it has effect in relation to a restraining order.
RESTRAINING ORDER IN RESPECT OF FOREIGN OFFENCE
17. Where an application is made for a restraining order pursuant to section 26(2) of Mutual Assistance in Criminal Matters Act No. 52 of 1989, Part 3 shall have effect, subject to such modifications as may be prescribed, as it has effect in relation to an application for a restraining order in respect of a serious offence with which a person has been charged, in Vanuatu.
PART 5 - OFFENCES AND INVESTIGATIONS
DEFINITIONS FOR PURPOSES OF PART 5.
18. In this Part -
"proceeds of crime" means -
(a) profits of a serious offence; or
(b) any property that is derived or realised directly or indirectly, by any person from acts or omissions that -
(i) occurred outside Vanuatu; and
(ii) would, if they had occurred in Vanuatu, have constituted a serious offence;
"profits", in relation to a serious offence, means any payment or other reward in connection with, or pecuniary advantage derived from, the commission of the offence;
"production order" means an order under section 22;
"property-tracking document", in relation to an offence means -
(a) a document relevant to -
(i) identifying, locating or assessing the value of property of a person who committed the offence; or
(ii) identifying or locating any document necessary for the transfer of any such property; or
(b) a document relevant to -
(i) identifying, locating or assessing the value of profits of the offence; or
(ii) identifying or locating any document necessary for the transfer of any such profits;
"transaction" includes the making or receiving of a gift;
"unlawful activity" means an act or omission that constitutes an offence in Vanuatu or in a foreign country.
MONEY LAUNDERING
19. For the purposes of this section, a person shall be taken to engage in money laundering if, and only if,
(a) the person engages, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of crime; or
(b) the person receives, possesses, conceals, disposes of or brings into Vanuatu any money, or other property, that is proceeds of crime,
and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.
(2) A person who, after the commencement of this Act, engages in money laundering is guilty of an offence punishable, upon conviction, by -
(a) if the offender is a natural person, a fine not exceeding 20 million vatu or imprisonment for a period not exceeding 15 years, or both; or
(b) if the offender is a body corporate, a fine not exceeding 100 million vatu.
(3) Where a person discloses to a police officer a suspicion or belief that any money, or other property is derived or realised from unlawful activity or any matter on which such a suspicion or belief is based -
(a) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract; and
(b) if he does any act in contravention of subsection (2) and the disclosure relates to the arrangement concerned, he does not commit an offence under this section if the disclosure is made in accordance with this paragraph, that is -
(i) it is made before he does the act concerned, being an act done with the consent of the police officer;
(ii) it is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it.
POSSESSION, ETC., OF PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME
20. (1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Vanuatu any money, or other property, that may reasonably be suspected of being proceeds of crime is guilty of an offence punishable, upon conviction, by -
(a) if the offender is a natural person, a fine not exceeding 2 million vatu or imprisonment for a period not exceeding 5 years, or both; or
(b) if the offender is a body corporate, a fine not exceeding 50 million vatu.
(2) Where a person is charged with an offence against subsection (1), it is a defence to the charge if the person satisfies the court that he had no reasonable grounds for suspecting that the property referred to in the charge was derived or realised, directly or indirectly, from some form of unlawful activity.
OFFENCES OF CONTRAVENING RESTRAINING ORDER
21. A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property to which the order relates is guilty of an offence punishable upon conviction, by -
(a) if the offender is a natural person, a fine not exceeding 2 million vatu or imprisonment for a period not exceeding 5 years, or both; or
(b) if the offender is a body corporate, a fine not exceeding 50 million vatu.
PRODUCTION ORDERS
22. (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 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 -
(i) a person has committed a serious offence; and
(ii) a person has possession or control of a property-tracking document or property-tracking documents in relation to the offence,
the police officer may -
(i) lay before a Judge of the Supreme Court an information on oath setting out those grounds; and
(ii) apply to the Judge for an order under subsection (4) against a person of the kind referred to in paragraph (a) or (b).
(2) Where a police officer applying for an order under this section in respect of an offence includes in the information under subsection (1) information on oath that the officer has reasonable grounds to believe that -
(a) the person who was convicted of the offence, or who is believed to have committed the offence, obtained profits from the commission of the offence; and
(b) property specified in the information is subject to the effective control of the person,
the Judge may treat any document relevant to identifying, locating or assessing the value of that property as a property-tracking document in relation to the offence for the purposes of this section.
(3) In determining whether to treat a document, under subsection (2), as a property-tracking document in relation to an offence, the Judge may have regard to the matters referred to in the Schedule.
(4) Where an application is made under subsection (1) for an order against a person, the Judge may, subject to subsections (5) and (8), make an order that the person -
(a) produces to a police officer any documents of the kind referred to in subsection (1) that are in the person's possession or control; or
(b) makes available to a police officer, for inspection, any documents of that kind that are in the person's possession or control.
(5) An order under subsection (4)(a) shall not be made in respect of bankers' books.
(6) A Judge shall not make an order under this section unless -
(a) the informant or some other person has given the Judge either orally or by affidavit, such information (if any) as the Judge requires concerning the grounds on which the order is sought; and
(b) the Judge is satisfied that there are reasonable grounds for making the order.
(7) An order that a person produces a document or documents to a police officer shall specify the time when and the place where the document is or the documents are to be produced.
(8) An order that a person makes a document or documents available to a police officer for inspection shall specify the time or times when the document is or the documents are to be made available.
(9) Where a document is produced to a police officer pursuant to an order under this section, the police officer may do any one or more of the following -
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document;
(d) retain the document if, and for so long as, retention of the document is reasonably necessary for the purposes of this Act.
(10) Where a document is made available to a police officer for inspection pursuant to an order under this section the police officer may do any one or more of the following-
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document.
(11) Where a police officer retains a document pursuant to an order under this section, the police officer shall on request by the person to whom the order was addressed -
(a) give the person a copy of the document certified by the police officer in writing to be a true copy of the document; and
(b) unless the person has received a copy of the document under paragraph (a), permit the person to do any one or more of the following-
(i) inspect the document;
(ii) take extracts from the document.
(12) A person is not excused from producing or making available a document when required to do so by an order under this section on the ground that -
(a) the production or making available of the document might tend to incriminate the person or make the person liable to a penalty; or
(b) the production or making available of the document would be in breach of an obligation (whether imposed by enactment or otherwise) of the person not to disclose the existence or contents of the document.
(13) Where a person produces or makes available a document pursuant to an order under this section, the production or making available of the document, or any information, document or thing obtained as a direct or indirect consequence of the production or making available of the document, is not admissible against the person in any criminal proceedings except a proceeding for an offence against section 24(1).
(14) For the purposes of subsection (13), proceedings, on an application for a confiscation order or a restraining order are not criminal proceedings.
(15) In this section, "bankers books" means any accounting records used in the ordinary business of banking and includes ledgers, day-books, cash-books and account books.
VARIATION OF PRODUCTION ORDER
23. Where a court makes a production order requiring a person to produce a document to a police officer, the person may apply to the court for a variation of the order and if the court is satisfied that the document is essential to the business activities of the person, the court may vary the production order so that it requires the person to make the document available to a police officer for inspection.
FAILURE TO COMPLY WITH PRODUCTION ORDER
24. Where a person is required by a production order to produce a document to a police officer or make a document available to a police officer for inspection, the person is guilty of an offence against this subsection if the person -
(a) contravenes the order without reasonable excuse; or
(b) in purported compliance with the order produces or makes available a document known to the person to be false or misleading in a material particular without -
(i) indicating to the police officer to whom the document is produced or made available that the document is false or misleading and, the respect in which the document is false or misleading; and
(ii) providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.
(2) An offence against- subsection (1) is punishable, upon conviction, by-
(a) if the offender is a natural person, a fine not exceeding 2 million vatu or imprisonment for a period not exceeding 5 years, or both; or
(b) if the offender is a body corporate, a fine not exceeding 50 million vatu.
PRODUCTION ORDER PURSUANT TO REQUEST
25. Where-
(a) a request is transmitted under the Mutual Assistance in Criminal Matters Act No. 52 of 1989 for assistance in identifying, locating or assessing the value of proceeds; and
(b) the request is not refused under that Act,
sections 22, 23 and 24 shall have effect, subject to such modifications as maybe prescribed, as they have effect in the circumstances stated in section 22(1)(a) or (b).
POWERS TO SEARCH FOR, AND SEIZE, DOCUMENTS RELEVANT TO LOCATING, ETC., PROPERTY
26. A police officer may -
(a) enter upon land, or upon or into premises;
(b) search the land or premises for any property-tracking document in relation to a serious offence; and
(c) seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a property-tracking document in relation t o serious offences,
but only if the entry, search or seizure, as the case may be, is made -
(i) with the consent of the occupier of the land or premises; or
(ii) under a warrant issued under section 27.
SEARCH WARRANT FOR LOCATION, ETC., OF PROPERTY
27. (1) Where -
(a) a person has been convicted of a serious offence and a police officer has reasonable grounds for suspecting that there is upon any land, or upon or in any premises, a property-tracking document in relation to the offence; or
(b) a police officer has reasonable grounds for suspecting that -
(i) a person has committed a serious offence; and
(ii) there is upon any land, or upon or in any premises, a property-tracking document in relation to the offence,
the police officer may -
(i) lay before a Judge of the Supreme Court an information on oath setting out those grounds; and
(ii) apply to the Judge for a search warrant under subsection (4) in respect of the land or premise.
(2) Where a police officer applying for a warrant under this section in respect of an offence includes in the information under subsection (1) information on oath that the officer has reasonable grounds to believe that -
(a) the person who was convicted of the offence or who is believed to have committed the offence obtained profits from the commission of the offence; and
(b) property specified in the information is subject to the effective control of the person,
the Judge may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.
(3) In determining whether to treat a document, under subsection (2), as a property-tracking document in relation to an offence, the Judge may have regard to the matters referred to in the Schedule.
(4) Where an application is made under subsection (1) for a search warrant in respect of land or premises, the Judge may, subject to subsections (5) and (6), issue a search warrant authorising a police officer (whether or not named in the warrant), 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 kind referred to in subsection (1);
(c) to seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a document of that kind.
(5) A Judge shall not issue a search warrant under subsection (4) unless the Judge is satisfied that -
(a) the document involved cannot be identified or described with sufficient particularity for the purpose of obtaining a production order in respect of the document;
(b) a production order has been given in respect of the document and has not been complied with;
(c) a production order in respect of the document would be unlikely to be effective because there are reasonable grounds to suspect that such a production order would not be complied with; or
(d) the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the document without notice to any person.
(6) A Judge shall not issue a search warrant under this section unless-
(a) the informant or some other person has given the Judge, either orally or by affidavit, any further information that the Judge requires concerning the grounds on which the search warrant is sought; and
(b) the Judge is satisfied that there are reasonable grounds for issuing the search warrant.
(7) There shall be stated in a search warrant issued under this section -
(a) a statement of the purpose for which the warrant is issued, including a reference to the nature of the serious offence that has been or is believed to have been committed;
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
(c) a description of the kind of document authorised to be seized; and
(d) a date, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect.
(8) If, in the course of searching, under a warrant issued under this section, for a property-tracking document in relation to a particular offence, a police officer finds -
(a) any document that the police officer believes, on reasonable grounds, to be -
(i) a property-tracking document in relation to the offence, although not of a kind specified in the warrant; or
(ii) a property-tracking document in relation to another 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,
and the police officer believes, on reasonable grounds, that it is necessary to seize that document or thing in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorise the police officer to seize that document or thing.
SEARCH WARRANT PURSUANT TO REQUEST
28. In the circumstances referred to in paragraphs (a) and (b) of section 25, section 27 shall have effect, subject to such modifications as may be prescribed, as it has effect in the circumstances stated in section 27(1)(a) and (b).
PART 6 - MISCELLANEOUS PROVISIONS
APPEALS
29. (1) Without affecting any other right of appeal, a confiscation order is appealable in the same manner as if it were, or were part of, a sentence imposed in relation to the offence in respect of which the order was made.
(2) On appeal, a confiscation order may be confirmed, varied or quashed.
(3) The Attorney General may appeal to the Court of Appeal against a refusal by a court to make a confiscation order, and the court may, in its discretion, make such order as could have been made in the first instance.
(4) A confiscation order made by the Court of Appeal under subsection (3) is deemed to have been made by the Supreme Court under this Act, but is not on that account subject to further appeal.
STANDARD OF PROOF
30. (1) Subject to subsection (2), any question of fact to be decided by a court on an application for a confiscation order or a restraining order shall be decided on the balance of probabilities.
(2) Where the making of an order under this Act is conditioned on-
(a) a person having been convicted of, or charged, or about to be charged, with, a serious offence; or
(b) a serious offence having been taken into account in determining the sentence for another serious offence,
the court shall not make the order unless it is satisfied, beyond a reasonable doubt, that he was so charged, about to be charged or convicted, or that the offence was so taken into account.
MINISTER TO MAKE REGULATIONS
31. The Minister may make regulations for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
COMMENCEMENT
32. This Act shall come into force on such day as the Minister may appoint by order published in the Gazette.
(sec. 3(3))
SCHEDULE
DETERMINATIONS AND ASSESSMENTS UNDER SECTION 13
1. For the purpose of making a determination or an assessment under section 3(1), the court -
(a) may, subject to paragraph 5, treat any property appearing to the court -
(i) to have been held by the defendant since his conviction for the serious offence;
(ii) to have been transferred to the defendant at any time since the beginning of the period of 6 years ending when he was charged with the serious offence or, in the case of a serious offence of which a person is deemed to have been convicted by virtue of section 4, when he was convicted of the offence,
as having been received by him, at the earliest time at which he appears to the court to have held it, as payment or reward in connection with the commission of the offence;
(b) may treat a payment, reward or pecuniary advantage as having been received or derived by the defendant notwithstanding that it was received or derived -
(i) by another person at the request or by the direction of the defendant; or
(ii) by the defendant or such other person before the commencement of this Act, or outside Vanuatu;
(c) may treat any property vested in a trustee in bankruptcy by reason of the defendant's bankruptcy as continuing to be the defendant's property;
(d) may treat property as being held by the defendant if he holds an interest in it;
(e) may treat property as having been transferred to the defendant if an interest in the property is transferred or granted to him;
(f) shall disregard expenses or outgoings of the defendant in connection with the offence or of serious offences; and
(g) shall disregard any payment, reward or pecuniary advantage that the defendant proves, or that the court is otherwise satisfied, was taken into account, for the purposes of any confiscation order previously made against him.
2. (1) For the purpose of making a determination or an assessment under section 3(1), the court may treat as property of the defendant any property that, in the opinion of the court, is subject to the effective control of the defendant, whether or not the defendant has-
(a) any legal or equitable estate or interest in the property; or
(b)any right, power or privilege in connection with the property.
(2) Without limiting the generality of sub-paragraph (1), the court may have regard to -
(a) shareholdings in, debentures over or directorships of any company that has an interest (whether direct or indirect) in the property;
(b) any trust that has a relationship to the property; and
(c) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in item (a) or trusts of the kind referred to in item (b) and any other persons.
3. For the purpose of making a determination under section 3(1)(a) in respect of a serious offence, the court may have regard to the transcript of any proceedings against the defendant for the offence.
4. For the purpose of making an assessment under section 3(1)(b) -
(a) the value of property, other than money, is its market value determined as at the date when the court makes the assessment; and
(b) when any person, other than the defendant, holds an interest in the property the value of that interest shall be taken into account in determining the value of the property to the defendant.
5. The court may not, pursuant to paragraph 1, treat property as having been received by the defendant as a payment or reward in connection with the commission of serious offence to the extent that -
(a) the defendant proves; or
(b) the court is otherwise satisfied,
that it was not so received.
-----------------------------------------------
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/legis/num_act/soopa1989397