Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1 - RESTRAINING ORDERS  

Division 6 - Duration of restraining orders  

SECTION 45   Cessation of restraining orders  

Effect on certain restraining orders of withdrawal of charges, acquittals etc.

45(1)  
A * restraining order that relates to one or more offences ceases to be in force 28 days after one of the following occurs:


(a) the charge, or all of the charges, that relate to the restraining order are withdrawn;


(b) the * suspect is acquitted of the offence, or all of the offences, with which he or she was charged;


(c) the suspect ' s conviction for the offence, or all of the offences, of which he or she was convicted are * quashed;

unless:


(d) there is a * confiscation order that relates to the offence; or


(e) there is an application for such a confiscation order before the court; or


(f) there is an application under:


(i) Division 6 of Part 2-2 ; or

(ii) Division 4 of Part 2-3 ; or

(iii) Division 5 of Part 2-4 or 2-5 ;
for confirmation of a forfeiture, or a confiscation order, that relates to the offence; or


(g) the suspect is charged with a * related offence; or


(h) a new trial is ordered in relation to the offence.

Restraining orders if there is no conviction etc.

45(2)  
A * restraining order ceases to be in force if, within 28 days after the order was made:


(a) the * suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and


(b) there is no * confiscation order or application for a confiscation order that relates to the offence. Restraining orders and forfeiture orders etc.

45(3)  
A * restraining order ceases to be in force in respect of property covered by the restraining order if:


(a) either:


(i) the court refuses an application for a * forfeiture order that would have covered the property; or

(ii) the court excludes the property from a forfeiture order; or

(iii) a forfeiture order that covers the property is discharged or ceases to have effect; or

(iv) the court excludes the property under section 94 from forfeiture under Part 2-3 ; and


(b) in the case of a refusal of an application for a * forfeiture order:


(i) the time for an appeal against the refusal has expired without an appeal being lodged; or

(ii) an appeal against the refusal has lapsed; or

(iii) an appeal against the refusal has been dismissed and finally disposed of; and


(c) no application for another * confiscation order relating to:


(i) an offence to which the restraining order relates; or

(ii) a * related offence;
is yet to be determined; and


(d) no other confiscation order relating to such an offence is in force.

45(4)  
A * restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Commonwealth under Division 4 of Part 2-2 or Division 1 of Part 2-3 . Restraining orders, pecuniary penalty orders and literary proceeds orders

45(5)  
A * restraining order that relates to one or more offences ceases to be in force in respect of property covered by the restraining order if:


(a) a * pecuniary penalty order or a * literary proceeds order relates to that offence or those offences; and


(b) one or more of the following occurs:


(i) the pecuniary penalty order or the literary proceeds order is satisfied;

(ii) the property is sold or disposed of to satisfy the pecuniary penalty order or literary proceeds order;

(iii) the pecuniary penalty order or the literary proceeds order is discharged or ceases to have effect.
Restraining orders and instruments owned by third parties

45(6)  
Despite subsection (1), if:


(a) a * restraining order covers property of a person who is not a * suspect; and


(b) the property is an * instrument of an offence to which the order relates; and


(c) the property is not * proceeds of such an offence; and


(ca) the property is not an instrument of a * serious offence to which the order relates; and


(d) the property is not subject to the * effective control of another person who is a suspect in relation to the order;

the restraining order ceases to be in force in respect of that property if the suspect has not been charged with the offence or a * related offence within 28 days after the restraining order is made.

Restraining orders and charges relating to unexplained wealth orders

45(6A)  


If:


(a) a *restraining order referred to in paragraph 179SA(1)(b) would otherwise cease to be in force under this section at a particular time; but


(b) a charge on the property against which the restraining order was made is created by subsection 179SA(1) before that time;

then despite anything in subsection (1), (2), (3) or (6) of this section, the restraining order does not cease to be in force until the charge ceases to have effect in respect of the property in accordance with subsection 179SA(2) .

Section does not apply to unexplained wealth restraining orders

45(7)  


To avoid doubt, this section does not apply to a *restraining order made under section 20A .



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