PART 6 - ENFORCEMENT OF PENALTIES
Assistance with enforcement of forfeiture orders
126.
Request for forfeiture of tainted property—
(1)This section applies if—
(a)the ICC—
(i)makes an order under article 77(2)(b) of the Statute for the forfeiture of tainted property; and
(ii)requests assistance under article 109(1) of the Statute to enforce the forfeiture order; and
(b)neither the conviction in respect of which the order was imposed nor the forfeiture order is subject to further appeal.
(2)The Attorney-General may give authority for the request to proceed if the Attorney-General is satisfied that the order is of a kind that can be enforced in the manner provided in sections 127 to 131.
(3)If the Attorney-General gives authority for the request to proceed, the Attorney-General must refer the request to the Solicitor-General for registration of the forfeiture order in the manner provided in sections 127 to 129.
Cf 1992 No 86 s 54; Statute, articles 77(2)(b), 109(1)
127.
Solicitor-General may apply for registration—
(1)The Solicitor-General may apply to the High Court for the registration of a forfeiture order or an amendment to such an order.
(2)On an application under subsection (1), the Court must register the order or the amendment to the order under section 128 if it is satisfied that the order or amendment to the order is in force.
128.
Method of registration of order—
(1)A forfeiture order, or an amendment to such an order, must be registered in the High Court by the registration in accordance with the prescribed procedure, if any, of—
(a)a copy of the order or amendment sealed by the ICC; or
(b)a copy of the order or amendment authenticated in accordance with subsection (2).
(2)A document is authenticated for the purposes of subsection (1)(b) if it purports to be—
(a)signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the ICC; or
(b)authenticated in any other manner authorised by the Statute or the Rules.
(3) An amendment to a forfeiture order does not, for the purposes of this Act and of the Criminal Proceeds (Recovery) Act 2009, have any effect until it is registered.
(4) A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order has the same effect, for the purposes of this Act and of the Criminal Proceeds (Recovery) Act 2009, as the sealed or authenticated copy that is not a facsimile.
(5)Despite subsection (4), registration effected by means of a facsimile copy ceases to have effect on the expiry of the period of 21 days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.
129.
Notice of registration of order—
If the High Court registers an order under section 128, the Court may direct the Solicitor-General to do either or both of the following:
(a)give notice of the registration, in the manner and within the time the Court considers appropriate, to such persons (other than a person convicted of an offence in respect of which the order was made) as the Court has reason to believe may have an interest in the property:
(b)publish notice of the registration in the manner and within the time the Court considers appropriate.
Cf 1995 No 27 s 42(4)
130 Effect of registration of order
(1) A forfeiture order registered under section 128 has effect and
may be enforced as if it were a profit forfeiture order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.
(2) Subsection (1) applies subject to sections 132 and 133.
(3) If a forfeiture order is registered under section 128,—
(a) subpart 3 of Part 2 of the Criminal Proceeds (Recovery) Act 2009 so far as is applicable and with any necessary modifications, and except to the extent that this Act provides otherwise, applies in relation to the order; and
(b) the property must be disposed of, or otherwise dealt with, in accordance with the order of, or directions given by, the ICC and the Attorney-General may give such directions as may be necessary to give effect to that order or those directions; and
(c) if, for any reason, the Attorney-General is not able to dispose of the property in accordance with the ICC’s order or directions, the Attorney-General may, after consulting with the ICC, arrange for the property to be transferred to the person in whom it was vested immediately before the forfeiture order was made.
(4) A restraining order registered in accordance with section 112(2) has effect, and may be enforced, as if it were a restraining order—
(a) made under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.
Cf 1991 No 120 s 23A; 1992 No 86 s 57(1) and (3)
131 Forfeiture order may be treated as profit forfeiture order
(1) If the Attorney-General is unable to give effect to a forfeiture order, the Attorney-General must take measures to recover—
(a) the value specified by the ICC as the value of the tainted property ordered by the ICC to be forfeited; or
(b) if the ICC has not specified the value of the tainted property, the value that, in the opinion of the Attorney-General, is the value of the tainted property ordered by the ICC to be forfeited.
(2) In a case to which subsection (1) applies, the forfeiture order
is to be treated as a profit forfeiture order for the equivalent amount and may be enforced accordingly as if it were a profit forfeiture order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and
(b) entered on the date of registration.
Cf Statute, article 109(2)
132.
Third parties may apply for relief—
(1)If a forfeiture order is registered under section 128, a person (other than a person convicted of an offence in respect of which the order was made) who claims an interest in any of the property to which the order relates may apply to the High Court for an order under section 133.
(2)A person on whom notice of the hearing of the ICC held in connection with the making of the forfeiture order was served, or who appeared at the hearing, may not make an application under subsection (1) without the leave of the High Court.
(3)The High Court must not grant leave under subsection (2) unless it is satisfied that—
(a)the applicant had good reason for failing to attend the hearing held by the ICC in connection with the making of the forfeiture order; or
(b)evidence proposed to be adduced by the applicant in connection with the application under subsection (1) was not reasonably available to the applicant at the time of the hearing of the ICC; or
(c)there are special reasons justifying the grant of leave.
(4)An application under subsection (1) must be made before the expiry of the period of 2 months beginning on the date on which the forfeiture order is registered in the High Court.
(5)Despite subsection (4), the High Court may grant a person leave to make an application under subsection (1) after the expiry of the period referred to in subsection (4) if it is satisfied that the person's failure to apply within that period was not owing to any neglect on the person's part.
(6)A person who makes an application under subsection (1) must serve notice of the application on the Solicitor-General, who must be a party to any proceedings on the application.
(7)This section and section 133 apply subject to any contrary provision in the Statute or the Rules.
Cf 1991 No 120 s 23C; 1992 No 86 s 57(1) and (3); Statute, articles 77(2)(b), 109(1)
133.
Court may grant relief to third party—
(1)This section applies if—
(a)a person applies to the High Court for an order under this section in respect of an interest in property; and
(b)the Court is satisfied that the applicant's claim is valid.
(2)If this section applies, the High Court must make an order—
(a)declaring the nature, extent, and value of the applicant's interest in the property; and
(b)either—
(i)directing that the interest be transferred to the applicant; or
(ii)declaring that payment be made to the applicant of an amount equal to the value of the interest declared by the Court.
(3)Despite subsection (2), the Court may, if it thinks fit, refuse to make an order under that subsection if it is satisfied that—
(a)the applicant was, in any respect, involved in the commission of the offence in respect of which the order was made; or
(b)although the applicant acquired the interest at the time of or after the commission of the offence, it was not acquired in good faith and for value.
Cf 1995 No 27 s 46
134.
Cancellation of registration of order—
(1)If a forfeiture order has been registered under section 128, the Attorney-General may direct the Solicitor-General to apply to the High Court for cancellation of the registration.
(2)Without limiting the generality of subsection (1), the Attorney-General may give a direction under that subsection in relation to a forfeiture order if—
(a)the order has, since its registration in New Zealand, ceased to have effect; or
(b)the order was registered in contravention of section 126; or
(c)the Attorney-General considers that cancellation is appropriate having regard to the arrangements in force with the ICC in relation to the enforcement of orders of that kind; or
(d)the ICC so requests.
(3)If, in accordance with a direction given under subsection (1), the Solicitor-General applies to the High Court for cancellation of the registration of a forfeiture order, the Court must cancel the registration accordingly.
(4) If, under the Criminal Proceeds (Recovery) Act 2009, a forfeiture order registered under section 128 of this Act is discharged (in whole or in part) or is revoked, that discharge or revocation constitutes a ground for an application for cancellation of the order under this section.
Cf 1995 No 27 s 47
Enforcement of forfeiture orders
EDIT.