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Criminal Proceeds Confiscation Proceeds Act - Application To Exclude Property Prior To Conviction

What the law says

Section 66 of the Criminal Proceeds Confiscations Act Queensland states:

  1. A person, including a prescribed respondent, who claims an interest in property that is forfeited under a forfeiture order may apply to the Supreme Court for an exclusion order.
  2. Unless the court gives leave under section 67-
    • (a) the application must be made within 6 months after the forfeiture order was made; and
    • (b) the following persons can not apply for an exclusion order-
      • (i)   a person who was given notice of the application for the forfeiture order;
      • (ii) a person who appeared at the hearing of the application for the forfeiture order.
  3. For each application made under this section, including an application for leave the applicant must give notice of the making of the application and the grounds for the application to the State and anyone else who has an interest in the property.
  4. The State must be a party to the application.

 ... 

Section 67 of the Criminal Proceeds Confiscations Act Queensland states:

  1. The Supreme Court may give leave to apply for an exclusion order after the end of the 6 months mentioned in section 66(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 a person mentioned in section 66(2)(b) leave to apply for an exclusion order only if it considers there are special grounds, including, for example-
    • (a)  for a good reason, the person did not attend the hearing of the application for the forfeiture order even though the person had notice of it; or
    • (b) particular evidence proposed to be presented by the person in the application was not available to the person when the application for the forfeiture order was heard.

Section 68 of the Criminal Proceeds Confiscations Act Queensland states:

  1. The Supreme Court, on an application under section 65 or 66, may make an exclusion order.
  2. The Supreme Court must, and may only, make an exclusion order if it is satisfied-
    • (a) the applicant has or, apart from the forfeiture, would have, an interest in the property; and
    • (b)  it is more probable than not that the property to which the application relates is not illegally acquired property.

Note that the law in respect of such applications is set to change later this year.  The effect will be to require the applicant to give the State written notice of the application in which the applicant outlines the grounds and facts relied upon fully. Keep an eye on this page for updates on when this legislation will come into effect.

What the police must prove

N/A

Maximum penalty

application.

If the application is successful and the excluded property is still vested in the State, the State will transfer the property excluded back to you. However, if the successful and the excluded property no long vests in the State (i.e. it has been sold off), the State will pay you the value of that property.  You and other persons will be authorised to deal with the excluded property as you see fit from that point onwards.

If you are unsuccessful, the property will remain the subject of the Forfeiture Order and will remain property of the State.

Note, the State may oppose your application.  If so, the State is obligated to provide you with written notice of such, detailing the grounds of its opposition. However, it is not required to give any notice until it has had reasonable opportunity to examine you under an examination order.

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:

That:

  1. Your have an interest in the property that was forfeited to the State by virtue of a Forfeiture Order; AND
  2. You made an application to exclude particular property sought to be forfeiture by that Forfeiture Order; AND
  3. The application was made AFTER the Forfeiture Order was made;AND
  4. You made the application:
    • (a) within 6 months of the Forfeiture Order being made; OR
    • (b) more than 6 months after the Forfeiture Order was made with leave of the Court, after showing the delay was not due to your neglect; AND
  5. You:
    • (a) were not given notice of the application for a Forfeiture Order and were not present at the hearing; OR
    • (b) were given notice of the application for a Forfeiture Order and/or attended the hearing, but the Court has granted you leave to make the application to exclude property due to some special grounds (e.g. you have a good reason for not attending hearing, or new evidence has come to light); AND
  6. The State is a party to your application to exclude particular property; AND
  7. You gave notice to the State and other interested persons (i.e. others with an interest in the property forfeited) of:
    • (a) your application; AND
    • (b) the grounds for that application; AND
  8. Ground to exclude that property exists.

Grounds for Application - Criminal Proceeds Confiscations (Prior to Conviction) Law - Forfeiture Order over Property - Application to Exclude Property AFTER Forfeiture Order Made - Lawyer / Solicitor Article

In order to be successful, you will need to show a legitimate basis for your application, known as a ground for that application. In this instance you must show the following in order to have ground:

  1. That you have an interest in the property; AND
  2. That:
    • (a) It is more probable than not, that the property came from legitimate sources and therefore was not illegally acquired; OR
    • (b) The property was acquired prior to or after the relevant 6 year period.
 

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