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Criminal Confiscation Proceeds Act - Application For Buy-Back Order To Avoid Automatic Forfeiture

What the law says

Section 165 of the Criminal Proceeds Confiscations Act Queensland states:

  1. A person, other than the prescribed respondent, who claims an interest in the property may apply to the Supreme Court for a third party order or a buy-back order.
  2. Unless the court gives leave under section 166-
    • (a) the application must be made within 6 months after the property is forfeited to the State; and
    • (b) the following can not apply to the court for a third party order or a buy-back order-
      • (i) a person who was given notice of the application for the relevant restraining order;
      • (ii) a person who appeared at the hearing of the application for the relevant restraining order;
      • (iii) a person who was given notice of the relevant restraining order.
  3. The applicant must give the DPP notice of the making of an application under this section, including an application for leave to apply for a third party order or a buy-back order.
  4. The State must be a party to the application represented by the DPP.

Section 166 of the Criminal Proceeds Confiscations Act Queensland states: 

  1. The Supreme Court may give leave to apply for a third party order or a buy-back order after the end of the 6 months mentioned in section 165(2)(a) if it is satisfied the delay in applying was not because of the applicant's neglect.
  2. Also, the Supreme Court may give leave for a person mentioned in section 165(2)(b) to apply for a third party order or a buy-back order only if it considers the failure of the applicant to apply, or apply successfully, to have the property excluded from the relevant restraining order was not because of the applicant's neglect.
  3. In this section-relevant restraining order, for property automatically forfeited, means the restraining order made in relation to the forfeited property. 

Section 169 of the Criminal Proceeds Confiscations Act Queensland states:

  1. The Supreme Court, on an application under section 165, may make a buy-back order.
  2. The Supreme Court may make a buy-back order if it is satisfied-
    • (a) the applicant, apart from the forfeiture, would have an interest in the property; and
    • (b) It would not be against the public interest for the relevant interest in the property to be transferred to the applicant; and
    • (c) there is no other reason why the interest should not be transferred to the applicant.

What the police must prove

N/A

Maximum penalty

The Court may either grant a Buy-Back Order in respect of all or part of the property, or refuse the application.

If your application is successful, then the State must transfer that property back to you after you have paid the amount prescribed to be the value of that property.

If you are unsuccessful, the Automatic Forfeiture will remain in effect and the property will remain forfeited to the State. 

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

In order for you to be successful in an application at Court, you must show the following:

  1. Your are a person who has an interest in the property that was automatically forfeited, other than prescribed respondent in the original Restraining Order (i.e. the person whose charge or conviction is the basis of the application); AND
  2. You made an application for a Buy-Back Order:
    • (a) Within 6 months of the property being automatically forfeited and without:
      • (i) Notice of an application for a Restraining Order over your property; AND
      • (ii) Attending the hearing of the application for a Restraining Order over your property; AND
      • (iii) Notice of the Restraining Order being granted over your property; OR
    • (b) with leave of the Supreme Court as the delay was not a result of your neglect; AND
  3. You gave notice of the application to the Department of Public Prosecutions; AND
  4. You made the State a party to the application; AND
  5. Ground exists for a Buy-Back Order.
 

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