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Criminal Confiscation Proceeds Act - Application For Forfeiture After Conviction Date: 01/09/2009

What the law says

Section 146 of the Criminal Proceeds Confiscations Act Queensland states: 

  1. This section applies if a person is convicted of a confiscation offence.
  2. The State may apply to the Supreme Court or the court before which the person is convicted for an order (forfeiture order) forfeiting particular property to the State.
  3. The application may include particulars of any encumbrance over the restrained property that an appropriate officer considers an encumbrancee took in good faith, for valuable consideration, and in the ordinary course of the encumbrancee's business.
  4. Unless the court gives leave, the application must be made within 6 months after the day the person is treated as if convicted of the offence because of section 106.

...

Section 147 of the Criminal Proceeds Confiscations Act Queensland states:

  1. The State must give written notice of the application for the forfeiture order to the person whose conviction is the basis for the application and anyone else the appropriate officer making the application for the State considers has an interest in the property to which the application relates.

... 

Section 149 of the Criminal Proceeds Confiscations Act Queensland states:

  1. In deciding an application for a forfeiture order, the court must have regard to the evidence given in any proceeding against the person for the confiscation offence on which the application is based.

Section 151 of the Criminal Proceeds Confiscations Act Queensland states: 

  1. The court may make a forfeiture order in relation to particular property if-
    • (a) a person is convicted of a confiscation offence; and
    • (b) the conviction is the basis for the application for the forfeiture order against the property; and
    • (c) the court is satisfied the property, or an interest in the property, is tainted property; and
    • (d) the court, having regard to subsection (2), considers it appropriate to make the order.
  2. For subsection (1)(d), the court may have regard to-
    • (a) any hardship that may reasonably be expected to be caused to anyone by the order; and
    • (b) the use that is ordinarily made, or was intended to be made, of the property; and
    • (c) the seriousness of the offence concerned; and
    • (d) anything else the court considers appropriate.
  3. The court must presume that particular property is tainted property if-
    • (a) at the hearing of the application, evidence is presented that the property was in the person's possession at the time of, or immediately after, the commission of the offence concerned; and
    • (b) no evidence is presented tending to show that the property is not tainted property.

What the police must prove

In order for the State to be successful in their application at Court, it must show the following:

That:

  1. It made an application for a Forfeiture Order to the Supreme Court
  2. You were convicted of:
    • (a) a serious criminal offence (i.e. maximum penalty 5 years imprisonment or more); OR
    • (b) an indictable offence; OR
    • (c) an offence against the Criminal Proceedings Confiscation Act; OR
    • (d) an offence against another Act; OR
    • (e) an ancillary offence to those listing in Schedule 2, Part 1 of the Criminal Proceedings Confiscation Act; AND
  3. That conviction is the basis for the application for a Forfeiture Order; AND
  4. It gave written notice to:
    • (a) All persons whose property is restrained under the relevant Restraining Order; AND
    • (b) All persons who have an interest in the property restrained under the relevant Restraining Order; AND
  5. The property sought to be restrained is tainted; AND
  6. A Forfeiture Order is appropriate, having regard to:
    • (a) any hardship that may reasonably be expected to be caused to anyone by the order; AND
    • (b) the use that is ordinarily made, or was intended to be made, of the property; AND
    • (c) the seriousness of the offence concerned; AND
    • (d) anything else the court considers appropriate.

Note that property that is considered as property of the Respondent includes (but is not limited to):

  1. Property that is held in the name of the Respondent (i.e. you), either solely or jointly; AND
  2. Property that is held in the possession of the Respondent, either solely or jointly; AND
  3. Property that is held in the name or in the possession of some other person/s, but which is under the effective control of the Respondent as:
    • (a) It is held for the ultimate benefit of the Respondent; OR
    • (b) It was a gift from the Respondent to the other person/s, given within the 6 year period After the application for the Restraining Order being made; OR
    • (c) It is in effect, under the control of the Respondent; AND
  4. Property that is held in the name or in the possession of some other person/s, but which the Respondent has some interest in; AND
  5. Property that is held in the name of other person/s, but which is suspected of being derived or acquired from the commission of the confiscation offence of the Respondent (whether directly or indirectly).

Note that property that is considered tainted includes (but is not limited to):

  1. Property used, or intended to be used, by a person:
    • (a) in, or in connection with, the commission of the offence; OR
    • (b) where use of the property constitutes all or part of the offence; AND
  2. Property or another benefit derived by a person from property mentioned in paragraph (a); AND
  3. Property or another benefit derived by a person from the commission of the offence; AND
  4. If the offence is money laundering, the tainted property that the person seeks to launder; AND
  5. If the offence is that of receiving, possessing or disposing of tainted property, the property received possessed or tainted.

Maximum penalty

If the application is successful, the Court will impose a Forfeiture Order against the property restrained under the Restraining Order.  The effect of such an order is that the property will be forfeited to the State absolutely and you will no long have any interest in or right to that property. Accordingly, the Court may make additional orders so as to facilitate the transfer of property to the State.

There are certain circumstances where the Court may release the property from the Forfeiture Order.  If the application is yet to be heard, you may apply to have your property excluded from being considered to be forfeited. Click here to find out more. Further, you may also apply to have property excluded from forfeiture after the Forfeiture Order is made, if there are grounds to do so.  Click here to find out more.

You may also apply to have property released upon payment of the value of your interest in that property. Click here to find our more. 

Failing having property excluded from forfeiture, you may seek that the Court make an order that part of the property be used to satisfy any encumbrance over the property that was taken out in good faith and for valuable consideration (e.g. to pay the remainder of a mortgage). 

Note that each person whose property is restrained under the Restraining Order and each person who claims an interest in any property restrained may attend the hearing of the application to forfeit that property.  However, the absence of any such interested person, will not preclude the Court from making the Forfeiture Order.

If the conviction upon which the Forfeiture Order is made is later quashed by a Court, the Forfeiture Order will be discharged.

It is important that you are aware that the State may apply for a further Forfeiture Order after the first application for a Forfeiture Order is decided.  The State may make such a second application where new evidence of property comes to light after the first application is decided which was not readily available before and where it is in the public interest to hear the second application for a Forfeiture Order.  

Also note that where you have been convicted, but are yet to be sentenced for that conviction, the Court may adjourn the application until after the sentence has been passed,

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

There are no defences to this application, but rather grounds upon which a person can oppose the application. Possible grounds to oppose this application include:

  1. You have not been convicted of a confiscation offence.
  2. The conviction was not the basis for the Forfeiture Order application.
  3. The respondent (i.e. you) was not given reasonable notice of the application.
  4. Other persons whose property is sought to be forfeited by the order were not provided with reasonable notice.
  5. The property is not tainted

The order is not appropriate in the circumstances.

 

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