Compensation for proportion of property not derived or realised from commission of any offence

A court that made a restraining order in section 92(1)(b) POCA must make an order to pay the applicant an amount of compensation[1] if:

• A person applies for an order under section 94A POCA;
• The court is satisfied that the applicant has an interest in property covered by the restraining order;
• A person has been convicted of a serious offence to which the restraining order relates;
• The court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence;
• The court is satisfied that the applicant’s interest is not an instrument of any offence.

A section 94A compensation order can be made at any time.[2] However, the person may be restricted from applying under this section if they were given notice under section 92A, and did not make an application prior to forfeiture, unless a good reason exists inter alia.[3]

It is incumbent upon the applicant for compensation to provide written notice to the AFP of both the application and grounds[4]

If the AFP has had a reasonable opportunity to conduct examinations in relation to the application, then the AFP must give the applicant notice of any grounds on which it proposes to contest the application.[5]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[6] until the AFP has had a reasonable opportunity to conduct examinations in relation to the application. As examinations compel an examinee to answer questions, it may not be in the applicant’s interest to seek exclusion.

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[1] S 94A(2) Proceeds of Crime Act 2002 (Cth).

[2] S 94A(3) Proceeds of Crime Act 2002 (Cth).

[3] See sections 94A(4) and (5) Proceeds of Crime Act 2002 (Cth).

[4] “grounds” cannot simply restate the statutory regime. ‘The applicant should particularise … not merely recite the statutory formation of the test…’ (Commissioner of the Australian Federal Police v Nguyen [2016] NSWSC 883, [8]).

[5] S 94(5) Proceeds of Crime Act 2002 (Cth).

[6] S 94(6) Proceeds of Crime Act 2002 (Cth).

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