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Vanuatu Sessional Legislation |
Commencement: 3 February 2003
REPUBLIC OF VANUATU
PROCEEDS OF CRIME ACT
NO. 13 OF 2002
Arrangement of sections
14A Financing terrorism and associated activities
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REPUBLIC OF VANUATU
Assent: 31st December 2002
Commencement: 3 February 2003
PROCEEDS OF CRIME ACT
NO. 13 OF 2002
An Act to provide for the confiscation of proceeds of crime, and for related purposes.
BE IT ENACTED by the President and the Parliament of Vanuatu as follows:
The principal objects of this Act are:
(a) to deprive persons of the proceeds of, and benefits derived from, the commission of serious offences; and
(b) to provide for the forfeiture of property used in, in connection with, or for facilitating, the commission of serious offences; and
(c) to enable law enforcement authorities to trace such proceeds, benefits and property.
(1) In this Act, unless the contrary intention appears:
account means a facility or arrangement by which a financial institution does any 1 or more of the following:
(a) accepts deposits of currency;
(b) allows withdrawals or transfers of currency;
(c) pays cheques or payment orders drawn on a financial institution by, or collects cheques or payment orders for, a person;
(d) supplies a facility or arrangement for a safety deposit box.
Administrator means the Attorney-General or the person appointed by the Attorney-General under section 84.
appeal includes proceedings by way of discharging or setting aside a judgement, and an application for a new trial or for a stay of execution.
Authority means the Financial Intelligence Unit established by the Financial Transactions Reporting Act No. 33 of 2000.
authorised officer, for a provision of this Act, means a person, or a person in a class of persons, designated in writing by the Attorney-General as an authorised officer for the provision.
benefit has the meaning given by section 3.
charge, in relation to an offence, includes any procedure by which criminal proceedings are begun against a person, and, in relation to an offence prosecuted summarily, includes the issue of the relevant summons.
conviction has the meaning given by subsection 4(1).
Court means the Supreme Court of Vanuatu.
currency means coin and paper money that is legal tender in its country of issue.
dealing with property includes:
(a) for property that is a debt— making a payment to the creditor in reduction or discharge of the debt; and
(b) giving or receiving property as a gift; and
(c) removing property from Vanuatu.
defendant means a person charged with a serious offence, whether or not he or she has been convicted of the offence, and for proceedings for a restraining order, includes a person who is likely to be charged with a serious offence.
document means a record of information in any form, including:
(a) a written or printed thing (including a map, plan, graph or drawing);
(b) a computer file, including a record that is kept in electronic form and can be accessed in Vanuatu;
(c) a photograph;
(d) a disk, tape, film sound-track or other thing in which sound or other data is embodied;
(e) a film, negative, tape or other thing in which a visual image is embodied.
financial institution has the same meaning as in the Financial Transactions Reporting Act No. 33 of 2000.
foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act.
foreign forfeiture order has the same meaning as in the Mutual Assistance Act.
foreign restraining order has the same meaning as in the Mutual Assistance Act.
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 20(1).
gift has the meaning given by section 8.
gift caught by this Act has the meaning given by section 10.
interest, in 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.
Mutual Assistance Act means the Mutual Assistance in Criminal Matters Act No. 14 of 2002.
pecuniary penalty order means an order under subsection 28(1).
police officer means a member of the Vanuatu Police.
proceedings include any procedure (including an inquiry, investigation, or preliminary or final determination of facts) conducted by or under the supervision of a judge or judicial officer in connection with:
(a) an alleged or proven offence; or
(b) property derived from such an offence.
proceeds of crime has the meaning given by section 5.
property includes money and all other property, real or personal, including an enforceable right of action and other intangible or incorporeal property.
quash has the meaning given by subsections 4(2) and (3).
realisable property has the meaning given by section 6.
relevant application period, for a person’s conviction of a serious offence, means the period of 12 months after:
(a) if the person was actually convicted of the offence— the day when the person was convicted of the offence; or
(b) if the person is taken to have been convicted of the offence because of paragraph 4(1)(b)— the day when the person was discharged without conviction; or
(c) if the person is taken to have been convicted of the offence because of paragraph 4(1)(c)— the day when the court took the offence into account in passing sentence for the other offence referred to in that paragraph.
restraining order means an order under section 52 or 65.
serious offence means:
(a) an offence against a law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months; or
(b) an offence against the law of another country that, if the relevant act or omission had occurred in Vanuatu, would be an offence against the law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months.
tainted property, in relation to an offence, means:
(a) property used in, or in connection with, the commission of the offence; or
(b) proceeds of the offence.
unit trust means an arrangement in which a person:
(a) invests funds in a trust; and
(b) is a beneficiary under the trust; and
(c) receives profit or income from the acquisition, holding, management or disposal of property under the trust.
unlawful activity means an act or omission that constitutes an offence against a law of Vanuatu or the foreign country where the activity occurs.
(2) A reference in this Act to the law of a country includes a law in force in a part of the country (for example, the law of a State of a country that has a federal system of government).
For this Act:
(a) a person benefits from an 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; and
(b) a reference to a benefit derived or obtained by, or otherwise accruing to, a person includes a benefit derived or obtained by, or otherwise accruing to, another person at the first-mentioned person’s request or direction.
(1) For this Act, a person is taken to have been convicted of an offence if:
(a) the person was convicted of the offence; or
(b) the person was charged with, and found guilty of, the offence but is discharged without conviction; or
(c) the person was not found guilty of the offence, but the Court, with the consent of the person, takes the offence into account in passing sentence on the person for another offence.
(2) If a person is taken, under paragraph (1)(b), to have been convicted of an offence, for the purposes of this Act the conviction is taken to be quashed if the finding of guilty is quashed or set aside.
(3) If a person is taken, under paragraph (1)(c), to have been convicted of an offence, for the purposes of this Act, the conviction is taken to be quashed if the Court’s decision to take the offence into account is quashed or set aside.
(1) In this Act:
proceeds of crime means property derived or realised directly or indirectly from a serious offence, including:
(a) property into which any property derived or realised directly from the offence is later successively converted or transformed; and
(b) income, capital or other economic gains derived or realised from that property since the offence.
(2) If property that is proceeds of crime (the original proceeds) is intermingled with other property from which it cannot readily be separated, that proportion of the whole represented by the original proceeds is taken to be proceeds of crime.
(1) In this Act, realisable property means:
(a) any property held by a person who has been convicted of, or charged with, a serious offence; or
(b) any property held by a person to whom a person so convicted or charged has directly or indirectly made a gift caught by this Act.
(2) However, property is not realisable property if:
(a) there is in force against the property a forfeiture order under this or another Act; or
(b) a forfeiture order is proposed to be made against the property under this or another Act.
(1) For this Act, the value of property (other than currency) to a person holding the property is:
(a) if another person holds an interest in the property— the market value of the person’s beneficial interest in the property, less the amount required to discharge any encumbrance on that interest; and
(b) in any other case— its market value.
(2) For this Act, the value at a particular time of a transfer of property is the greater of:
(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; and
(b) the value to the recipient at that time of:
(i) the property; or
(ii) of property that, in whole or in part, directly or indirectly represents in the recipient’s hands the property that he or she received.
(1) In this Act:
gift includes a transfer (directly or indirectly) of property by one person to another for a consideration that is significantly less than the value of the property.
(2) In the circumstances mentioned in subsection (1), sections 9 and 10 apply as if the person had made a gift of as much of the transferred property as bears to the whole property the same proportion as the difference between the value of the property and the value of the consideration.
For this Act, the value at a particular time of a gift is the greater of:
(a) the value of the gift to the recipient when he or she received it, adjusted to take account of changes in the value of money; or
(b) property that, in whole or in part, directly or indirectly represents in the person’s hands property that the person received as a gift.
A gift made by a person convicted of or charged with a serious offence, including a gift made before the commencement of this Act, is caught by this Act if:
(a) it was made after the commission of the offence (or, if more than one offence, the earliest of them) and the Court considers it appropriate in all the circumstances to take the gift into account; or
(b) it was made, by the person convicted or charged, at any time and was itself a gift of property:
(i) received by the person; or
(ii) that in whole or in part, directly or indirectly, represented in the person’s hands property received by the person;
in connection with the commission of another serious offence committed by the person or by another person.
(1) In this section:
transaction includes the receiving or making of a gift.
(2) A person who, after the commencement of this Act, engages in money-laundering is guilty of an offence punishable on conviction by:
(a) if the offender is a natural person — a fine of 10 million vatu or imprisonment for 10 years, or both; or
(b) if the offender is a body corporate — a fine of 50 million vatu.
(3) A person engages in money-laundering only if:
(a) the person engages, directly or indirectly, in a transaction that involves money, or other property, that the person knows, or ought reasonably to know, to be proceeds of crime; or
(b) the person receives, possesses, conceals, disposes of or brings into Vanuatu money, or other property, that the person knows, or ought reasonably to know, to be proceeds of crime.
(1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Vanuatu money, or other property, that may reasonably be suspected of being proceeds of crime is guilty of an offence punishable on conviction by:
(a) if the offender is a natural person — a fine of 10 million vatu or imprisonment for 10 years, or both; or
(b) if the offender is a body corporate — a fine of 50 million vatu.
(2) It is a defence to a charge of contravening subsection (1) that the person charged 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.
(3) A person is not liable to be convicted of an offence against both section 11 and this section because of one act or omission.
(1) A person who opens or operates an account with a financial institution in a false name is guilty of an offence punishable on conviction by:
(a) for a natural person — a fine of 5 million vatu or imprisonment for 5 years, or both; or
(b) for a body corporate — a fine of 25 million vatu.
(2) A person opens an account in a false name if the person, in opening the account, or becoming a signatory to the account, uses a name other than a name by which the person is commonly known.
(1) A person who:
(a) knows or suspects that a report is being prepared or has been sent to the Authority; and
(b) discloses to another person information or other matter likely to prejudice any investigation of an offence or possible offence of money-laundering;
commits an offence punishable by a fine of 5 million vatu or imprisonment for 5 years, or both.
(2) In proceedings for an offence against subsection (1), it is a defence to prove that the accused did not know, and had no reasonable grounds for suspecting, that the disclosure was likely to prejudice any investigation of an offence or possible offence of money-laundering.
Part 2A - Financing of Terrorism
(1) If a person:
(a) provides or collects by any means, directly or indirectly, money; and
(b) intends, knows or has reasonable grounds to believe that the money will be used in whole or in part to finance, directly or indirectly:
(i) terrorism; or
(ii) any act of terrorism; or
(iii) any person or organization that is known to have carried out, or is reasonably suspected of carrying out, acts of terrorism;
the person is guilty of an offence punishable on conviction by the penalty set out in subsection (3).
(2) If a person:
(a) enters into or facilitates, directly or indirectly, any transaction in respect of property; and
(b) knows or has reasonable grounds to believe that the purpose of the transaction in whole or in part is to finance, directly or indirectly:
(i) terrorism; or
(ii) any act of terrorism; or
(iii) any person or organization that has carried out, or is reasonably suspected of carrying out, acts of terrorism;
the person is guilty of an offence punishable on conviction by the penalty set out in subsection (3).
(3) The penalty is:
(a) in the case of an individual, to imprisonment for not more than 20 years; or
(b) in the case of a body corporate, to a fine not exceeding VT 500, 000,000.
(4) If:
(a) body corporate is found guilty of an offence against subsection (1) or (2); and
(b) director, manager, secretary or other officer of the body corporate has knowingly been a party to the offence;
the director, manager, secretary or officer is guilty of an offence punishable on conviction by imprisonment for not more than 20 years.
Part 3 - Forfeiture orders, pecuniary penalty orders and related matters
(1) If a person is convicted of a serious offence committed after this Act commences, the Attorney-General may apply to the Court for either or both of the following orders:
(a) a forfeiture order against tainted property in relation to the offence;
(b) a pecuniary penalty order against the person for benefits derived by the person from the commission of the offence.
(2) However, the Attorney-General may not make such an application after the end of the relevant application period for the conviction.
(3) A single application under this section may be made in connection with 2 or more serious offences.
(4) After an application under this section is finally determined, no further application for a forfeiture order or a pecuniary penalty order may be made in relation to the offence for which the person was convicted without leave of the Court.
(5) The Court may give leave for a new application only if:
(a) the property or benefit to which the new application relates was identified after the previous application was determined; or
(b) necessary evidence became available only after the previous application was determined; or
(c) it is in the interests of justice that the new application be made.
(1) If the Attorney-General applies for a forfeiture order against tainted property in relation to a serious offence for which a person is convicted:
(a) the Attorney-General must give reasonable written notice of the application to the person and to any other person who the Attorney-General has reason for believing may have an interest in the property; and
(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and
(c) the Court may, at any time before the final determination of the application, direct the Attorney-General:
(i) to give reasonable written 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 notice of the application, containing the particulars that the Court directs and as often as the Court directs, in a newspaper published and circulating in Vanuatu.
(2) If the Attorney-General applies for a pecuniary penalty order against a person:
(a) the Attorney-General must give the person reasonable written notice of the application; and
(b) the person may appear and adduce evidence at the hearing of the application.
(1) The Court may, before finally determining an application for a forfeiture order or pecuniary penalty order, and on the application of the Attorney-General, allow the amendment of the application to include any other property or benefit if:
(a) the other property or benefit was not reasonably capable of identification when the application for the order was originally made; or
(b) necessary evidence became available only after that application was originally made.
(2) If:
(a) the Attorney-General applies to amend an application for a forfeiture order; and
(b) the effect of the amendment would be to include additional property in the application for the forfeiture order;
the Attorney-General must give reasonable written notice of the application to amend to any person who the Attorney-General has reason for believing may have an interest in the additional property.
(3) Any person who claims an interest in the additional property may appear and adduce evidence at the hearing of the application to amend.
(4) If:
(a) the Attorney-General applies to amend an application for a pecuniary penalty order against a person; and
(b) the effect of the amendment would be to include an additional benefit in the application for the pecuniary penalty order;
the Attorney-General must give the person reasonable written notice of the application to amend.
On an application to the Court under section 15, the Court may:
(a) in determining the application, take into account the Judge’s notes of any proceedings against the person for the offence; or
(b) defer passing sentence until the Court has determined the application if the Court:
(i) has not, when the application is made, passed sentence on the person for an offence because of which the property became tainted; and
(ii) is satisfied that it is reasonable to do so in all the circumstances.
(1) If, in connection with a serious offence committed after this Act commences, each of the following occurs:
(a) an information has been laid alleging that a person committed the offence;
(b) a warrant for the person’s arrest is issued for that information;
(c) the person absconds, whether before or after the information is laid or warrant is issued;
the Attorney-General may, within 6 months after the person absconds, apply to the Court for a forfeiture order against any tainted property.
(2) For this section:
(a) a person is taken to have absconded in connection with an offence if reasonable attempts to arrest the person under a warrant have been unsuccessful during the 6 months starting on the day the warrant was issued; and
(b) the person is taken to have absconded on the last day of that 6 months.
(3) If the Attorney-General applies under subsection (1) for a forfeiture order against property, the Court must, before hearing the application, require:
(a) reasonable written 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) notice of the application, containing the particulars that the Court directs, to be published as often as the Court directs in a newspaper published and circulating in Vanuatu.
(1) If:
(a) the Attorney-General applies to the Court for a forfeiture order against property in relation to a person’s conviction of a serious offence; and
(b) the Court is satisfied that the property is tainted property in relation to the offence;
the Court may order that the property, or so much of the property as is specified by the Court in the order, be forfeited to the State.
(2) In deciding whether property is tainted property, the Court may infer:
(a) if the evidence establishes that the property was in the person’s possession at the time of, or immediately after, the offence was committed— that the property was used in, or in connection with, committing the offence; and
(b) if the evidence establishes that the property (in particular, money) was found, during investigations before or after the person was arrested for and charged with the offence:
(i) in the person’s possession; or
(ii) under the person’s control in a building, vehicle, receptacle or place—
that the property was derived, obtained or realised as a result of the person’s committing the offence; and
(c) if:
(i) the evidence establishes that the value, after the person committed the offence, of all the person’s ascertainable property is more than the value of all the person’s ascertainable property before the person committed the offence; and
(ii) the Court is satisfied that the person’s income from sources unrelated to criminal activity cannot reasonably account for the increase in value —
that the value of all or part of the increase represents property that the person derived, obtained or realised directly or indirectly from committing the offence.
(3) If the Court orders that property (other than money) be forfeited to the State, the Court must specify in the order the amount that it considers to be the value of the property when the order is made.
(4) In considering whether to make a forfeiture order against property, the Court may take into account:
(a) any right or interest of a third party in the property; and
(b) the gravity of the offence concerned; and
(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) If the Court makes a forfeiture order, the Court may give any directions that are necessary or convenient to give effect to the order.
(1) In this section:
registrable property means property the title to which is passed by registration on a register kept under a law in force in Vanuatu.
(2) If the Court makes a forfeiture order against property (other than registrable property), the order vests the property absolutely in the State.
(3) If the Court makes a forfeiture order against registrable property:
(a) the order vests the property in the State in equity, but does not vest it in the State at law until the applicable registration requirements have been complied with; and
(b) the State is entitled to be registered as owner of the property; and
(c) the Administrator may do, or authorise the doing of, anything necessary or convenient to obtain the registration of the State as owner, including the execution of any necessary instrument.
(4) If the Court makes a forfeiture order against registrable property:
(a) the Attorney-General may do anything necessary or convenient to give notice of, or otherwise protect, the State’s equitable interest in the property; and
(b) anything done by the Attorney-General under paragraph (a) is not a dealing for the purposes of paragraph (5) (a).
(5) If the Court makes a forfeiture order against property (including registrable property):
(a) the property must 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 for the State, before:
(i) any appeal against the conviction, or the making of the order, is finally determined, or lapses; or
(ii) the last day for the lodging of an appeal against the conviction or order passes without such an appeal having been lodged; and
(b) the property may be disposed of, and the proceeds applied or otherwise dealt with as the Administrator directs, after:
(i) the determination or lapsing of any appeal lodged against the conviction or the making of the order; or
(ii) the last day for lodging such an appeal is past without such an appeal having been lodged.
(1) If 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 about the person’s interest in property, the Court must make an order declaring the nature, extent and value (as at the time the order is made) of the person’s interest if the Court is satisfied:
(a) that the applicant was not involved in committing an offence in relation to which forfeiture of the property is sought, or a forfeiture order against the property was made; and
(b) if the applicant acquired the interest when, or after, the offence was committed — 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.
(3) If a forfeiture order has already been made against property, a person who claims an interest in the property may, within 6 months starting on the day when the order is made, apply to the Court for an order under subsection (2).
(4) A person may not make an application under subsection (3), except with the leave of the Court, if the person:
(a) knew about the application for the forfeiture order before the order was made; or
(b) appeared at the hearing of that application.
(5) A person who applies to the Court under subsection (1) or (3) must give 28 days written notice of the application to the Attorney-General.
(6) The Attorney-General:
(a) is a party to the proceedings in an application under subsection (1) or (3); and
(b) may make an application under subsection (1) for a person.
(7) An appeal lies to the Court of Appeal of Vanuatu from an order under subsection (2).
(8) Subsection (9) applies if:
(a) a person has obtained an order under subsection (2); and
(b) the period for appeals has expired and any appeal from that order has been determined or has lapsed; and
(c) the Administrator has received the property under a forfeiture order.
(9) On application by the person, the Administrator must:
(a) return the property, or the part of it to which the interest of the person relates, to the person; or
(b) pay an amount equal to the value of the interest of the applicant, as declared in the order, to the person.
(1) This section applies if:
(a) an application is made to the Court for a forfeiture order against property; and
(b) the Court is satisfied that:
(i) proceedings for a serious offence committed for that property were commenced; and
(ii) any property is tainted property in relation to the offence; and
(iii) the accused charged with the offence has absconded.
(2) The Court may order that the property, or so much of it as the Court specifies in the order, be forfeited to the State.
(3) Section 20 (except subsection (1)), and sections 21 and 22, apply (with any necessary modifications) to an order under this section.
(1) If 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) If a forfeiture order against property is discharged:
(a) under subsection (1); or
(b) by the Court hearing an appeal against the making of the order;
a person who claims to have had an interest in the property immediately before the forfeiture order was made may apply to the Administrator, in writing, for the transfer of the interest to the person.
(3) On receipt of an application under subsection (2) from a person who had such an interest in the property, the Administrator must:
(a) if the interest is vested in the State — transfer the property or interest in the property, or the part of it to which the interest relates, to the person; or
(b) the State has disposed of the interest — pay the person an amount equal to the value of the interest at the time the order is made.
(4) The Administrator may ask the Court to determine whether the person had the interest claimed under subsection (2).
(5) The Administrator has power to do, or authorise the doing of, anything necessary or convenient to transfer or return property under section 22 or this section, including executing any instrument and applying to register an interest in the property on a register.
If the Court is satisfied that a forfeiture order should be made against property of a person, but that the property, or any part of it or interest in it, cannot be made subject to such an order, and, in particular:
(a) cannot, with the exercise of due diligence, be found; or
(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 to avoid the forfeiture of the property; or
(c) is located outside Vanuatu; or
(d) has been mingled with other property that cannot be divided without difficulty;
the Court may, instead of ordering the property, part or interest to be forfeited, order the person to pay to the State an amount equal to the value of the property, part or interest.
(1) An amount payable by a person to the State under an order under section 25 is a civil debt due by the person to the State.
(2) An order against a person under section 25 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 is taken to be a judgment debt.
(3) If an order is made against a person under section 25 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 in bankruptcy.
If a foreign forfeiture order is registered in the Court under section 41 of the Mutual Assistance Act, this Division applies to the order as if:
(a) the order were an order made by the Court under this Division; and
(b) references to an appeal against the making of an order were omitted; and
(c) the period mentioned in subsection 22 (3) were 6 weeks rather than 6 months.
Division 3 Pecuniary penalty orders
(1) If the Attorney-General applies to the Court for a pecuniary penalty order against a person in relation to the person’s conviction of a serious offence, the Court may, if it is satisfied that the person has benefited from the offence, order the person to pay to the State:
(a) an amount equal to the value of the person’s benefit from the offence; or
(b) a lesser amount that the Court certifies to be the amount that might be realised at the time the pecuniary penalty order is made.
(2) The Court must assess the value of the benefit derived by a person from committing an offence in accordance with sections 29, 30, 31, 32 and 33.
(3) The Court must not make a pecuniary penalty order under this section:
(a) until the period for the lodging of an appeal against conviction has expired without an appeal having been lodged; or
(b) if an appeal against conviction has been lodged — until the appeal lapses, or is finally determined.
(1) If a person obtains property as the result of, or in connection with committing, a serious offence, the person’s benefit is the value of the property so obtained.
(2) If a person derives an advantage as the result of, or in connection with committing, a serious offence, the person’s advantage is taken to be a sum of money equal to the value of the advantage so derived.
(3) Unless the contrary is proved:
(a) property is taken to be tainted property if it is held by a person on the day when the application is made, and at any time:
(i) if the offence or earliest offence was committed more than 5 years before the application is made — within 5 years before the application is made; and
(ii) in any other case — after the offence, or the earliest offence, was committed and before the application is made; and
(b) any expenditure by the person in the time mentioned in subparagraph (a) (ii) is taken to be expenditure met out of tainted property; and
(c) any property received or taken to have been received by the person at any time as a result of, or in connection with, committing the offence or offences is taken to have been received free of any other interests; and
(d) if evidence is given at the hearing of the application that the value of the person’s property increased after committing an offence, the increase is taken to be part of the person’s benefit from the offence.
(4) If a pecuniary penalty order has previously been made against a person in relation to an offence, 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 the earlier order must be disregarded.
(1) If a person has been convicted of a serious offence, the Attorney-General may tender to the Court a statement about any matter relevant to:
(a) deciding whether the person has benefited from the offence, or from any other serious offence of which the person is convicted in the same proceedings or that is taken into account in passing sentence on the person; or
(b) assessing the value of the person’s benefit from the offence or any other serious offence of which the person is so convicted in the same proceedings or that is so taken into account.
(2) If the Court is satisfied that a copy of the statement has been served on the person, the Court may require the person to indicate:
(a) to what extent the person accepts each allegation in the statement; and
(b) for each allegation that the person does not accept wholly or in part — any matters the person proposes to rely on.
(3) If the person accepts to any extent an allegation in the statement, the Court may, in deciding or assessing the matters mentioned in subsection (1), treat the person’s acceptance as conclusive of the matters to which it relates.
(4) If a person fails, wholly or in part, to comply with a requirement under subsection (2), the Court may treat the person, for this section, as having accepted every allegation in the statement, other than:
(a) an allegation for which the person has complied with the requirement; or
(b) an allegation that the person has benefited from the offence concerned, or that the person obtained any property or advantage as a result of, or in connection with, committing the offence.
(5) An allegation may be accepted, or matter indicated, for this section either:
(a) orally before the Court; or
(b) in writing.
(6) An acceptance by a person under this section that the person received any benefits from committing a serious offence is admissible in any proceedings against the person for any offence.
(1) The amount to be recovered from a person under a pecuniary penalty order is the amount that the Court assesses to be the value of the person’s benefit from the offence, or all the offences, concerned.
(2) If the Court is satisfied (whether by an acceptance under section 30 or otherwise) about a matter relevant to determining the amount that might be realised at the time a pecuniary penalty order is made, the Court may issue a certificate giving the Court’s opinion about the matter.
(3) The Court must issue the certificate if it is satisfied that the amount that might be realised at the time the pecuniary penalty 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 all the offences, for which the pecuniary penalty order may be made.
(1) For sections 30 and 31, the amount that might be realised at the time a pecuniary penalty order is made against a person is the total of:
(a) the values at that time of all the realisable property held by the person, less the total amounts payable under any obligation having priority at that time; and
(b) the total of the values at that time of all gifts caught by this Act.
(2) For subsection (1), an obligation of a person has priority at a time if it is an obligation to:
(a) pay a fine, or an amount due under an order of the Court imposed or made on conviction of an offence, if the fine was imposed or the order made before the pecuniary penalty order; or
(b) pay an amount due as a tax, rate, duty, excise or other impost under an enactment; or
(c) pay any other civil obligation as may be determined by the Court.
(1) If:
(a) the Court makes a pecuniary penalty order in relation to an offence; and
(b) in calculating the amount of the pecuniary penalty order, the Court took into account a forfeiture of property or a proposed forfeiture of property or a proposed forfeiture order against 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 order being made;
the Attorney-General may apply to the Court to vary the pecuniary penalty 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) If:
(a) the Court makes a pecuniary penalty order against a person in relation to an offence; and
(b) in calculating the amount of the pecuniary penalty order, the Court took into account an amount of tax paid by the person; and
(c) an amount is repaid or refunded to the person for that tax;
the Attorney-General may apply to the Court to vary the pecuniary penalty 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.
(1) In assessing the value of benefits derived by a person from committing an offence, the Court may treat as the person’s property any property that, in the opinion of the Court, is under the person’s effective control, 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 subsection (1), the Court may take into account:
(a) shareholdings in, debentures over, or directorships of a company that has an interest (whether direct or indirect) in the property; and
(b) a trust that has a relationship to the property; and
(c) any relationship between persons having an interest in the property, or in companies of the kind mentioned in paragraph (a) or trusts of the kind mentioned in paragraph (b), and other persons.
(3) To decide, for paragraph (2) (a), whether a particular company has a direct or indirect interest in property, the Court may order the investigation and inspection of the books of the company.
(4) If the Court, in making a pecuniary penalty order against a person, treats particular property as the person’s property under subsection (1), the Court may, on application by the Attorney-General, make an order declaring that the property is available to satisfy the order.
(5) If the Court declares that property is available to satisfy a pecuniary penalty 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 relation to the property as if the property were property of the person against whom the order is made.
(6) If the Attorney-General applies for an order that property is available to satisfy a pecuniary penalty order against a person:
(a) the Attorney-General must give reasonable written notice of the application to the person and to any other person who the Attorney-General has reason for believing may have an interest in the property; and
(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.
(1) An amount payable by a person to the State under a pecuniary penalty order is a civil debt due by the person to the State.
(2) A pecuniary penalty 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 is taken to be a judgment debt.
(3) If a pecuniary penalty 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 in bankruptcy.
If a foreign pecuniary penalty order is registered in the Court under the Mutual Assistance Act, any amount paid, whether in Vanuatu or elsewhere, in satisfaction of that order is taken to have been paid in satisfaction of the debt that arises because of the registration of that order.
Part 4 - Facilitating investigations and preserving property
Division 1 Powers of search and seizure
(1) An authorised officer may apply to the Court for the issue of a warrant to search land or premises for tainted property.
(2) If an application is made under subsection (1) for a warrant, the Court may issue the warrant authorising the authorised officer, with such assistance, and by such force, as is necessary and reasonable:
(a) to enter the land or premises; and
(b) to search the land or premises for the tainted property and to seize it.
(3) The Court may issue the warrant only if it is satisfied that:
(a) the property authorised to be seized is tainted property; and
(b) an information has been laid or will be laid within 48 hours for the relevant offence; and
(c) there are reasonable grounds for issuing the warrant.
(4) A warrant issued under this section must include:
(a) a statement of the purpose for which the warrant is issued, including a reference to the nature of the relevant offence; and
(b) a description of the kind of property authorised to be seized; and
(c) a time at which the warrant ceases to have effect; and
(d) a statement whether entry is authorised at any time or at specified times.
(1) If, in the course of a search under a warrant issued under section 37, for a thing of a kind specified in the warrant, an authorised officer finds another thing, the warrant is taken to authorise the officer to seize the other thing if there are reasonable grounds:
(a) for believing the other thing to be tainted property in relation to a serious offence, or to afford evidence about the commission of a criminal offence in Vanuatu; or
(b) for believing that it is necessary to seize the property or thing to prevent it being concealed, lost or destroyed, or used to commit, continue or repeat the offence or another offence.
(2) Any property seized must be given to the Attorney-General.
(1) If property has been seized under subsection 38 (1), 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) The Court must order that the property be returned to the person if the Court is satisfied that:
(a) the person is entitled to possession of the property; and
(b) the property is not tainted property; and
(c) the person in relation to whose conviction, charging or proposed charging the property was seized has no interest in the 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; 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;
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.
If:
(a) property has been seized under subsection 38 (1); and
(b) any proceedings for an offence because of which the property is tainted have been completed; and
(c) the Attorney-General:
(i) has not applied for a forfeiture order; or
(ii) does not apply for a forfeiture order within 14 days after the proceedings are completed; and
(d) the property is in the Attorney-General’s possession;
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.
(1) If:
(a) property has been seized under subsection 38 (1); and
(b) a restraining order is made against the property before the Attorney-General is required by this Act to return it; and
(c) the restraining order directs the Administrator to take custody and control of the property;
then, despite section 40 or 41, the Attorney-General must arrange for the property to be given to the Administrator in accordance with the restraining order.
(2) If, when the restraining order is made the property is in the Attorney-General’s possession, the Attorney-General may apply to the Court for an order that the Attorney-General keep possession of the property.
(3) If the Court is satisfied that there are reasonable grounds for believing that the property may afford evidence as to the commission of an offence, the Court may order that the Attorney-General may retain the property for as long as the property is so required as evidence.
(4) If the Court makes an order under subsection (3) about the property, the Attorney-General must arrange for the property to be kept until it is dealt with in accordance with another provision of this Act.
(5) In proceedings for an order under subsection (3), the Court may order that a witness need not:
(a) answer a specified question; or
(b) produce a specified document;
if the Court is satisfied that answering the question or producing the document may prejudice the investigation of, or the prosecution of a person for, an offence.
If:
(a) property has been seized under this Division; and
(b) while the property is in the Attorney-General’s possession, a forfeiture order is made against the property;
the Attorney-General must deal with the property as required by the order.
Division 2 Search for and seizure of tainted property — foreign offences
(1) If, under section 19 of the Mutual Assistance Act, an authorised officer is directed to apply to the Court for a search warrant for tainted property in relation to a foreign serious offence, this Division applies to:
(a) the application; and
(b) any warrant issued as a result of the application.
(2) In this Division:
(a) references to tainted property are taken to be references to tainted property in relation to a foreign serious offence; and
(b) references to an offence are taken to be references to a foreign serious offence.
(1) Subsection (2) applies if, in the course of searching under a warrant referred to in section 44 for tainted property in relation to a foreign serious offence, an authorised officer finds:
(a) property that there are reasonable grounds for believing is tainted property in relation to a foreign serious offence for which another search warrant under that section is in force; or
(b) anything that there are reasonable grounds for believing:
(i) is relevant to a criminal proceeding in the foreign country for the foreign serious offence; or
(ii) will afford evidence as to the commission of a criminal offence.
(2) If there are reasonable grounds for believing that it is necessary to seize the property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence, the warrant is taken to authorise the officer to seize the property or thing.
(1) If property has been seized under subsection 45 (2), 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) The Court must order the Attorney-General to return the property to the person if the Court is satisfied that:
(a) the person is entitled to possession of the property; and
(b) the property is not tainted property; and
(c) the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property.
(1) Subsection (2) applies if:
(a) property has been seized under subsection 45 (2); and
(b) no forfeiture order is made against the property within 30 days after it was seized; and
(c) the property is in the Attorney-General’s possession at the end of that period.
(2) The Attorney-General must 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.
(1) Subsections (2), (3) and (4) apply if:
(a) property has been seized under subsection 45 (2); and
(b) but for that subsection, the Attorney-General would be required to arrange for the property to be returned to a person as soon as practicable after the end of a period; and
(c) before the end of that period:
(i) a foreign restraining order against the property is registered in the Court; or
(ii) the Court makes a restraining order for the foreign serious offence against the property; and
(d) the Attorney-General is not the Administrator.
(2) The Attorney-General must:
(a) if the restraining order directs the Administrator to take custody and control of the property — arrange for the property to be given to the Administrator in accordance with the restraining order; or
(b) if the Court has made an order under subsection (4) about the property — arrange for the property to be kept until it is dealt with in accordance with another provision of this Act.
(3) If the property is in the Attorney-General’s possession when the restraining order is made or registered, the Attorney-General may apply to the Court for an order that the Attorney-General retain possession of the property.
(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, order that the Attorney-General may retain the property for as long as the property is so required as evidence.
(5) In proceedings for an order under subsection (4), the Court may order that a witness need not answer a question, or produce a document, if the Court is satisfied that answering the question, or producing the document, may prejudice the investigation of an offence or the prosecution of a person.
(1) Subsection (2) applies if:
(a) property has been seized under this Division; and
(b) while the property is in the Attorney-General’s possession, a foreign forfeiture order against the property is registered in the Court.
(2) The Attorney-General must deal with the property as required by the order.
(1) The Attorney-General may apply to the Court for a restraining order against:
(a) any realisable property held by a defendant; or
(b) realisable property, specified in the application, held by a person other than a defendant.
(2) An application for a restraining order may be made ex parte.
(3) An application for a restraining order must be in writing, and must be accompanied by an affidavit stating:
(a) if the relevant defendant has been convicted of a serious offence:
(i) the offence of which the defendant was convicted, the date of the conviction, the court before which the conviction was obtained; and
(ii) whether an appeal has been lodged against the conviction, the result of any appeal and, if an appeal has not been finalised, what stage it has reached; and
(b) if 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; and
(c) if 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; and
(d) a description of the property against which the restraining order is sought; and
(e) the name and address of the person who is believed to be in possession of the property; and
(f) if the application seeks a restraining order against property of a defendant — the grounds for believing that the property is tainted property in relation to an offence, or that the defendant derived a benefit directly or indirectly from committing the offence; and
(g) if the application seeks a restraining order against property of a person other than a defendant — the grounds for believing that the property is tainted property in relation to an offence, or is subject to the effective control of a defendant.
(1) Before making a restraining order, the Court:
(a) must require the Attorney-General to give reasonable written notice to any person who may have an interest in the property; and
(b) may hear any person to whom notice is given.
(2) However, if the Attorney-General so requests:
(a) the Court must consider the application without requiring notice to be given in accordance with subsection (1); but
(b) a restraining order made in reliance on this subsection ceases to have effect after 14 days or a lesser period that the Court specifies in the order.
(3) The Court:
(a) may, on application by the Attorney-General, extend the period of operation of a restraining order made in reliance on subsection (2); but
(b) must not consider the application without requiring reasonable written notice to be given to any person who may have an interest in the property.
(1) The Court may make a restraining order against property if it is satisfied that:
(a) a defendant has been convicted of a serious offence, has been charged with a serious offence or will be charged with a serious offence within 48 hours; and
(b) if the defendant has not been convicted of the offence — there are reasonable grounds for believing that the defendant committed the offence; and
(c) if the property is property of the defendant — there are reasonable grounds for believing that the property is tainted property, or that the defendant derived a benefit directly or indirectly from the commission of the offence; and
(d) if the property is 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.
(2) The order may:
(a) prohibit the defendant or any other person from disposing of, or otherwise dealing with, the property, or a part of it or interest in it specified in the order, either absolutely or except in a way specified in the order; and
(b) at the request of the Attorney-General, if the Court is satisfied that the circumstances so require, direct the Administrator:
(i) to take custody of the property or a part of it specified in the order; and
(ii) to manage or otherwise deal with all, or any part of, the property in accordance with the directions of the Court.
(3) In deciding whether there are reasonable grounds for believing that property is subject to the effective control of the defendant, the Court may take into account the matters mentioned in subsection 34 (2).
(4) The order 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 person’s reasonable living expenses (including the reasonable living expenses of the person’s dependants, if any) and reasonable business expenses;
(b) the person’s reasonable expenses in defending a criminal charge and any proceedings under this Act;
(c) another specified debt incurred by the person in good faith.
(5) However, the order must not make such provision unless the Court is satisfied that the person cannot meet the expenses or debt out of property that is not subject to a restraining order.
(6) If the Court gives the Administrator a direction under paragraph (2) (b) in relation to property, the Administrator may do anything that is reasonably necessary to preserve the property, and, for that purpose:
(a) may do anything in relation to the property that its owner could do, and
(b) may do so to the exclusion of the owner.
(7) In proceedings for a restraining order, the Court may order that a witness need not answer a specified question or produce a specified 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.
Before making a restraining order, the Court may require the State to give an undertaking about the payment of damages or costs, or both, in relation to the making and execution of the order.
(1) A copy of a restraining order must be served on a person affected by it in the way the Court directs.
(2) If 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.
(1) If the Court makes a restraining order, any of the following may apply to the Court for an ancillary order:
(a) the Attorney-General;
(b) a person whose property is the subject of the restraining order (the owner);
(c) if the restraining order directs the Administrator to take custody and control of property — the Administrator;
(d) with the leave of the Court — any other person.
(2) An ancillary order may do any 1 or more of the following:
(a) vary the property to which a restraining order relates;
(b) vary any condition to which a restraining order is subject;
(c) order a person to be examined on oath before the Court about the affairs of the owner or the defendant;
(d) provide for carrying out any undertaking about 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 the particulars of the property, or dealings with the property, that the Court directs;
(f) if the restraining order directs the Administrator to take custody and control of property — do any 1 or more of the following:
(i) regulate the performance or exercise of the Administrator’s functions, duties or powers under the restraining order;
(ii) decide a question relating to the property;
(iii) order a person to do anything to enable the Administrator to take custody and control of the property;
(iv) if the restraining order provides that a person’s reasonable expenses in defending a criminal charge be met out of the property — direct that those expenses be taxed as provided in the ancillary order before being met;
(v) provide for the payment to the Administrator out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Administrator of functions, duties or powers under the restraining order;
(g) anything else that the Court considers necessary in the circumstances.
(3) If a person who has an interest in property against which a restraining order is made applies to the Court for a variation of the order to exclude the person’s interest from the order, the Court must grant the application if the Court is satisfied that:
(a) the interest is not tainted property and that it cannot be required to satisfy a pecuniary penalty order; or
(b) the applicant was not involved in the commission of the offence in relation to which the restraining order was made and, if the applicant acquired the interest at the time of or after the commission (or alleged commission) of the offence, the applicant acquired the interest:
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or
(c) 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) The Court must not hear an application under subsection (1) unless the applicant has given reasonable written notice of the application to each other person who is entitled to make an application under that subsection for the restraining order.
(5) The Court may require notice of the application to be given to, and may hear, any person who, in the opinion of the Court, appears to have an interest in the property.
(6) If a person is required, in accordance with an order under paragraph (2) (c) or (e), to make a statement on oath:
(a) the person is not excused from making the statement on the ground that the statement, or part of it, might tend to incriminate the person or make the person liable to forfeiture or a penalty; and
(b) the statement, and any information, document or thing obtained as a direct or indirect consequence of it, is not admissible against the person in any criminal proceedings except a proceeding for perjury in making the statement.
(1) This section applies if:
(a) a pecuniary penalty order is made against a defendant in reliance on the defendant’s conviction of an offence; and
(b) a restraining order is made, in reliance on the defendant’s conviction, or alleged commission, of the offence, against property of:
(i) the defendant; or
(ii) a person in relation to which an order under subsection 34 (4) is in force.
(2) The Court may direct the Administrator to satisfy the pecuniary penalty order by a payment to the State out of the property:
(a) upon the making of the later of the orders; or
(b) on application by the Attorney-General, at any time while the restraining order remains in force.
(3) To enable the Administrator to comply with a direction under subsection (2), the Court may:
(a) direct the Administrator to sell or otherwise dispose of a part of the property that the Court specifies; and
(b) order that the Administrator may execute, and do anything necessary to give validity and effect to, any deed or instrument in the name of a person who owns or has an interest in the property.
(4) If the Court makes an order of the kind mentioned in paragraph (3) (b), the execution of a deed or instrument by the Administrator in accordance with the order has the same force and validity as if the deed or instrument had been executed by the person in whose name the Administrator executed it.
(5) The Administrator must not take action to sell property under a direction under subsection (4):
(a) until:
(i) the periods for the lodging of an appeal against the relevant conviction, and the making of the relevant pecuniary penalty order and restraining order, have expired without any such appeal having been lodged; or
(ii) if an appeal is lodged against a relevant conviction, or the making of the relevant pecuniary penalty order or restraining order — all the appeals lapse or are finally determined; or
(b) if proceedings in bankruptcy against the owner of the property are in progress or the owner is a bankrupt.
(1) An authority that administers a law of Vanuatu that provides for the registration of title to, or charges over, property of a particular kind may, on application by the Attorney-General, record on a register kept under that law the particulars of a restraining order that applies to property of that kind.
(2) If those particulars are so recorded, a person who subsequently deals with the property is taken, for section 58, to have notice of the restraining order at the time of the dealing.
(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order commits an offence punishable by:
(a) for a natural person — a fine of 1 million vatu or imprisonment for 2 years, or both; or
(b) for a body corporate — a fine of 5 million vatu.
(2) If a restraining order is made against property and the property is disposed of, or otherwise dealt with, in contravention of the restraining order, the Attorney-General may apply to the Court for an order setting aside the disposition or dealing.
(3) If the Court is satisfied that the disposition or dealing was either not for sufficient consideration, or not in favour of a person who acted in good faith, the Court may:
(a) set aside the relevant disposition or dealing with effect from the day when it took place; or
(b) set aside the disposition or dealing with effect from the day of the Court’s order, and declare the right of any person who acquired an interest in the property on or after the day when the disposition or dealing took place and before the day of the order.
(1) If the Court has made a restraining order against a person’s property, the Court may, on application by the person, revoke the order if:
(a) for an applicant who is a defendant — the applicant gives security satisfactory to the Court for the satisfaction of any pecuniary penalty order that may be made against the person under this Act; or
(b) the applicant gives undertakings satisfactory to the Court about the property.
(2) An applicant under subsection (1) must give reasonable written notice of the application to the Attorney-General and, if the restraining order directed the Administrator to take control of property, the Administrator.
(1) A restraining order ceases to be in force at the end of 6 months after the day when it was made, unless it ceases sooner under subsection (5).
(2) Within that period, on application by the Attorney-General, the Court may order that the order continues in force until a specified time or event, if the Court is satisfied that:
(a) a forfeiture order may still be made against the property; or
(b) the property may be required to satisfy a pecuniary penalty order that has not yet been made.
(3) An order under subsection (2) does not have the effect of continuing a restraining order in force after the time when it would cease to be in force under subsection (5).
(4) The Attorney-General must give a person reasonable written notice of an application under subsection (2) about a restraining order against the person’s property.
(5) 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) if 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; or
(b) if the order is made in reliance on the charging of the person with the offence — when:
(i) the charge against the person is withdrawn; or
(ii) the person is acquitted of the charge and the time for an appeal by the State has lapsed; or
(c) when property subject to the order is used to satisfy a pecuniary penalty order that was made in reliance on the person’s conviction of the offence; or
(d) when the Court refuses an application for a pecuniary penalty order in reliance on the person’s conviction of the offence; or
(e) when property subject to the order is forfeited under Division 2 of Part 3.
Division 4 Interim restraining orders for foreign offences
This Division applies to an application by the Attorney General for a restraining order under this Act against any property of a person in relation to a foreign serious offence, and to any restraining order made as a result of the application.
A person is a defendant for this Division if:
(a) the person has been convicted of a foreign serious offence; or
(b) there are reasonable grounds for believing that a criminal proceeding has commenced, or is about to be commenced, against the person in a foreign country.
(1) If, under the Mutual Assistance Act, the Attorney-General applies for a restraining order under this Act against any property of a defendant, the Attorney-General may apply to the Court for an interim restraining order against:
(a) any realisable property held by the defendant; or
(b) specified realisable property held by another person.
(2) The application may be made ex parte.
(3) The application must be in writing, and must be accompanied by an affidavit stating:
(a) if the defendant has been convicted of a foreign 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; and
(b) if the defendant has not been convicted of a foreign serious offence — the offence for which criminal proceedings are believed to have been commenced, and the grounds for believing that the defendant committed the offence; and
(c) if it is believed that criminal proceedings are about to be commenced against the defendant — the grounds for believing that the proceedings will be commenced within 48 hours; and
(d) a description of the property against which the restraining order is sought; and
(e) the name and address of the person who is believed to be in possession of the property; and
(f) if the application seeks a restraining order against property of a defendant — the grounds for believing that the property is tainted property in relation to a foreign serious offence, or that the defendant derived a benefit directly or indirectly from committing such an offence; and
(g) if the application seeks a restraining order against property of a person other than a defendant — the grounds for the belief that the property is tainted property in relation to a foreign serious offence, or is subject to the effective control of the defendant.
(1) Before making an interim restraining order, the Court must require reasonable written notice to be given to, and may hear, any person who may have an interest in the property.
(2) However, if the Attorney-General so requests, the Court must consider the application without requiring notice to be given in accordance with subsection (1), but an interim restraining order made in reliance on this subsection ceases to have effect after 14 days or a lesser period that the Court specifies in the order.
(3) The Court may, on application by the Attorney-General, extend the period of operation of an interim restraining order made in reliance on subsection (2), but must not consider the application without requiring reasonable written notice to be given to any person who may have an interest in the property.
(1) Subsection (2) applies if the Attorney-General applies to the Court for an interim restraining order against property of a defendant and the Court is satisfied that:
(a) the defendant has been convicted of a foreign serious offence, or a criminal proceeding for a foreign serious offence has commenced, or is reasonably believed to be about to commence, against the defendant in a foreign country; and
(b) if the defendant has not been convicted of a foreign serious offence — there are reasonable grounds for believing that the defendant committed the offence; and
(c) if the application seeks a restraining order against property of the defendant — there are reasonable grounds for believing that:
(i) the property is tainted property in relation to a foreign serious offence; or
(ii) the defendant derived a benefit directly or indirectly from the commission of the offence; and
(d) if the application seeks a restraining order against property of a person other than a defendant — there are reasonable grounds for believing that the property is:
(i) tainted property in relation to a foreign serious offence; or
(ii) subject to the effective control of the defendant.
(2) The Court may make an order prohibiting the defendant or any other person from disposing of, or otherwise dealing with, the property, or a part of it or interest in it specified in the order, either absolutely or except in a way specified in the order.
(3) An order under subsection (2) 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 person’s reasonable living expenses (including the reasonable living expenses of the person’s dependants, if any) and reasonable business expenses;
(b) the person’s reasonable expenses in defending a criminal charge and any proceedings under this Act or in being represented in a criminal proceeding in a foreign country;
(c) another specified debt incurred by the person in good faith.
(4) However, the order must not make provision of that kind unless the Court is satisfied that the person cannot meet the expenses or debt out of property that is not subject to a restraining order.
(5) In deciding whether there are reasonable grounds for believing that property is subject to the effective control of the defendant, the Court may take into account the matters mentioned in subsection 34 (2).
(6) In proceedings for an order under subsection (2), the Court may:
(a) take into account evidence that would otherwise be inadmissible; and
(b) order that a witness need not:
(i) answer a specified question; or
(ii) produce a specified document;
if the Court is satisfied that answering the question or producing the document may prejudice the investigation of, or the prosecution of a person for, an offence.
Before making an interim restraining order, the Court may require the State to give an undertaking about the payment of damages or costs, or both, in relation to the making and execution of the order.
(1) A copy of an interim restraining order must be served on a person affected by it in the way the Court directs.
(2) If 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.
(1) If the Court makes an interim restraining order, any of the following may apply to the Court for an ancillary order:
(a) the Attorney-General;
(b) a person whose property is the subject of the interim restraining order (the owner);
(c) with the leave of the Court — any other person.
(2) An ancillary order may do any 1 or more of the following:
(a) vary the property to which an interim restraining order relates;
(b) vary any condition to which an interim restraining order is subject;
(c) order a person to be examined on oath before the Court about the affairs of the owner or the defendant;
(d) provide for carrying out any undertaking about the payment of damages or costs given by the State in connection with the making of the interim restraining order;
(e) order the owner or the defendant to give a specified person a statement on oath setting out the particulars of the property, or dealings with the property, that the Court directs;
(f) anything else that the Court considers necessary in the circumstances.
(3) If a person who has an interest in property against which an interim restraining order is made applies to the Court for a variation of the order to exclude the person’s interest from the order, the Court must grant the application if the Court is satisfied:
(a) that the applicant was not involved in the commission of the offence in relation to which the order was made and, if the applicant acquired the interest at the time of or after the commission (or alleged commission) of the offence, that the applicant acquired the interest:
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or
(b) that 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) The Court must not hear an application under subsection (1) unless the applicant has given reasonable written notice of the application to each other person who is entitled to make an application under that subsection for the interim restraining order.
(5) The Court may require notice of the application to be given to, and may hear, any person who, in the opinion of the Court, appears to have an interest in the property.
(6) If a person is required, in accordance with an order under paragraph (2) (c) or (e), to make a statement on oath:
(a) the person is not excused from making the statement on the ground that the statement, or part of it, might tend to incriminate the person or make the person liable to forfeiture or a penalty; and
(b) the statement, and any information, document or thing obtained as a direct or indirect consequence of it, is not admissible against the person in any criminal proceedings except a proceeding for perjury in making the statement.
(1) An authority that administers a law of Vanuatu that provides for the registration of title to, or charges over, property of a particular kind may, on application by the Attorney-General, record on a register kept under that law the particulars of an interim restraining order that applies to property of that kind.
(2) If those particulars are so recorded, a person who subsequently deals with the property is taken, for section 70, to have notice of the order at the time of the dealing.
(1) A person who knowingly contravenes an interim restraining order by disposing of, or otherwise dealing with, property that is subject to the order commits an offence punishable by:
(a) for a natural person — a fine of 1 million vatu or imprisonment for 2 years, or both; or
(b) for a body corporate — a fine of 5 million vatu.
(2) If an interim restraining order is made against property and the property is disposed of, or otherwise dealt with, in contravention of the restraining order the Attorney-General may apply to the Court for an order setting aside the disposition or dealing.
(3) If the Court is satisfied that the disposition or dealing was either not for sufficient consideration, or not in favour of a person who acted in good faith, the Court may:
(a) set aside the relevant disposition or dealing with effect from the day when it took place; or
(b) set aside the disposition or dealing with effect from the day of the Court’s order, and declare the right of any person who acquired an interest in the property on or after the day when the disposition or dealing took place and before the day of the order.
(1) An interim restraining order ceases to have effect at the end of 30 days starting on the day when the order is made.
(2) However, if the Court makes an interim restraining order, it may, on application by the Attorney-General made before the end of the period mentioned in subsection (2), extend the period of operation of the order.
(3) Also, if:
(a) an interim restraining order is made against property; and
(b) before the end of the period mentioned in subsection (1) (including any extension of that period under subsection (2)), a foreign restraining order against the property is registered in the Court under the Mutual Assistance Act;
the interim restraining order ceases to have effect when the foreign restraining order is registered.
Division 5 Foreign restraining orders
This Division applies to a foreign restraining order registered in the Court under section 41 of the Mutual Assistance Act.
(1) On application by the Attorney-General, the Court may, if satisfied that the circumstances so require, order the Administrator:
(a) to take custody and control of the property subject to the order, or of a part of it specified in the order; and
(b) to manage or otherwise deal with the property or part in accordance with the directions of the Court.
(2) Before making an order under subsection (1), the Court must require reasonable notice to be given to, and may hear, any person who, in the opinion of the Court, may have an interest in the property.
(3) If the Court makes an order under subsection (1) in relation to property, the Administrator:
(a) may do anything that is reasonably necessary for preserving the property; and
(b) for that purpose may exercise any power that the owner of the property could exercise; and
(c) may do so to the exclusion of the owner.
(4) If the Court makes an order under subsection (1) against property of a person (the respondent), the court may, when it makes the order or afterwards, make any 1 or more of the following orders:
(a) an order directing the respondent to give to the Administrator a statement on oath setting out the particulars of the property, or dealings with the property, that the Court directs;
(b) an order regulating the performance or exercise of the Administrator’s functions, duties or powers under the foreign restraining order;
(c) an order deciding any question about the property;
(d) if the relevant registered foreign restraining order provides that a person’s reasonable expenses in defending a criminal charge be met out of the property — an order directing that those expenses be taxed, as provided in the order, before being met;
(e) an order providing for the payment to the Administrator out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Administrator of functions, duties or powers under the foreign restraining order.
On application by a person claiming an interest in property, the Court may make an order about giving, or carrying out, an undertaking by the Attorney-General, for the State, about the payment of damages or costs for the registration, making or operation of:
(a) a foreign restraining order against property that is registered in the Court under the Mutual Assistance Act; or
(b) an order made by the Court under section 73 for the property.
(1) A copy of a restraining order or an order under section 73 must be served on a person affected by it in the way the Court directs.
(2) If 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.
(1) In this section, a reference to a restraining order includes an order under section 73.
(2) This section applies if:
(a) a foreign pecuniary penalty order is registered in the Court against a defendant; and
(b) a foreign restraining order is registered against property of:
(i) the defendant; or
(ii) another person against whom an order under subsection 34 (4) is in force.
(3) The Court may direct the Administrator to satisfy the pecuniary penalty order by a payment to the State out of the property:
(a) on the registration of the later of the orders; or
(b) on application by the Attorney-General, at any time while the restraining order remains in force.
(4) To enable the Administrator to comply with a direction under subsection (3), the Court may:
(a) direct the Administrator to sell or otherwise dispose of a specified part of the property; and
(b) order that the Administrator may execute, and do anything necessary to give validity and effect to, any deed or instrument in the name of a person who owns, or has an interest in, the property.
(5) If the Court makes an order of the kind mentioned in paragraph (4) (b), the execution of a deed or instrument by the Administrator in accordance with the order has the same force and validity as if the deed or instrument had been executed by the person in whose name the Administrator executed it.
(1) In this section, a reference to a restraining order includes an order under section 73.
(2) An authority that administers a law of Vanuatu that provides for the registration of title to, or charges over, property of a particular kind may, on application by the Attorney-General, record on a register kept under that law the particulars of a restraining order that applies to property of that kind.
(3) If those particulars are so recorded, a person who subsequently deals with the property is taken, for section 78, to have notice of the restraining order at the time of the dealing.
(1) In this section, a reference to a registered foreign restraining order includes an order under section 73.
(2) A person who knowingly contravenes a registered foreign restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order commits an offence punishable by:
(a) for a natural person — a fine of 1 million vatu or imprisonment for 2 years, or both; or
(b) for a body corporate — a fine of 5 million vatu.
(3) If a foreign restraining order is registered against property and the property is disposed of, or otherwise dealt with, in contravention of the restraining order, the Attorney-General may apply to the Court for an order setting aside the disposition or dealing.
(4) If the Court is satisfied that the disposition or dealing was either not for sufficient consideration, or not in favour of a person who acted in good faith, the Court may:
(a) set aside the relevant disposition or dealing with effect from the day when it took place; or
(b) set aside the disposition or dealing with effect from the day of the Court’s order, and declare the right of any person who acquired an interest in the property on or after the day when the disposition or dealing took place and before the day of the order.
A foreign restraining order registered in the Court under the Mutual Assistance Act ceases to be in force when the registration is cancelled in accordance with that Act.
Part 5 - Suspicious currency movements
An authorised officer may seize and detain any currency that is being brought into or taken out of Vanuatu if:
(a) the amount is not less than the equivalent of 1 million vatu (or a higher amount prescribed by regulation for this paragraph); and
(b) there are reasonable grounds for suspecting that it is:
(i) property derived from a serious offence; or
(ii) intended by any person for use in the commission of a serious offence.
(1) Currency detained under section 80 may not be detained for more than 24 hours after it is seized.
(2) However, the Court may order its continued detention for a period not exceeding 3 months from the day it is seized, upon being satisfied that:
(a) there are reasonable grounds for the suspicion mentioned in paragraph 80(b); and
(b) its continued detention 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.
(3) The Court may subsequently order the continued detention of the currency if satisfied of the matters mentioned in paragraphs (2) (a) and (b), but the total period of detention may not exceed 2 years from the date of the first order made under subsection (2).
(1) Currency detained under section 80 may be released in whole or in part to the person for whom it was imported or exported if:
(a) on 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) However, currency detained under section 80 must not be released if:
(a) an application is made for:
(i) a confiscation order against the whole or any 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 under way in Vanuatu or elsewhere against a person for an offence with which the currency is connected;
until the proceedings relating to the relevant application, or the proceedings for the offence, have been concluded.
(1) For this Act, the state of mind of a person may be established in accordance with this section.
(2) For conduct engaged in, or taken under subsection (3) to have been engaged in, by a body corporate, it is sufficient to show that a director, servant or agent of the body corporate who engaged in the conduct within the scope of his or her actual or apparent authority had that state of mind.
(3) Conduct engaged in for a body corporate is taken, for this Act, to have been engaged in by the body corporate if it is engaged in:
(a) by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) both:
(i) by another person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate; and
(ii) if giving the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent.
(4) For conduct taken, under subsection (5), to have been engaged in by a person (other than a body corporate), it is sufficient to show that a servant or agent of the person who engaged in the conduct within the scope of his or her actual or apparent authority had that state of mind.
(5) Conduct engaged in for a person (other than a body corporate) is taken, for this Act, to have been engaged in by the person if it is engaged in by:
(a) a servant or agent of the person within the scope of the servant or agent’s actual or apparent authority; or
(b) by another person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent.
(6) A reference in this section to the state of mind of a person includes the person’s knowledge, intention, opinion, belief or purpose, and the person’s reasons for that intention, opinion, belief or purpose.
The Attorney-General may by instrument appoint a person to administer property forfeited, or subject to a restraining order, under this Act.
Except as otherwise provided in this Act, a question of fact to be decided by the Court in proceedings under this Act is to be decided on the balance of probabilities.
The Court may order the State to pay all costs reasonably incurred by a person in connection with proceedings, or a part, specified in the order, of those costs if:
(a) the person brings, or appears at, the proceedings under this Act before the Court:
(i) to prevent a forfeiture, confiscation or restraining order from being made against property of the person; or
(ii) to have property of the person excluded from a forfeiture, confiscation or restraining order; and
(b) the person is successful in those proceedings; and
(c) the Court is satisfied that the person was not involved in the commission of the offence in relation to which the forfeiture, confiscation or restraining order was sought or made.
The Administrator is not personally liable for any act done, or omitted to be done, by him or her in performing the Administrator’s functions under this Act.
Nothing in this Act prejudices, limits or restricts:
(a) the operation of any other law that provides for the forfeiture of property or the imposition of penalties or fines; or
(b) the remedies available to the State, apart from this Act, for the enforcement of its rights and the protection of its interests; or
(c) any power of search or any power to seize or detain property that is exercisable by a police officer apart from this Act.
The Serious Offences (Confiscation of Proceeds) Act No. 50 of 1989 is repealed.
A request or order that was made under the Serious Offences (Confiscation of Proceeds) Act No. 50 of 1989 and has not been finalised at the commencement of this Act is taken to be a request or order made under this Act.
The Minister may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
This Act commences on the day on which it is published in the Gazette.
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URL: http://www.paclii.org/vu/legis/num_act/poca2002160