What the Law states - Criminal Proceeds Confiscation Act-Application To Exclude Value Of Innocent Interest After Forfeiture After Conviction

Section 156 of the Criminal Proceeds Confiscations Act Queensland states:

(1) A person, other than a person whose conviction is the basis for the application for the forfeiture order or the forfeiture order, who claims an interest in property forfeited under a forfeiture order may apply to the court that made the forfeiture order for an innocent interest exclusion order.

(2) Unless the court gives leave under section 157-

(a) the application must be made before the end of the 6 months starting on the day the forfeiture order was made; and

(b) the following persons can not apply under this section for an innocent interest 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) The applicant must give the DPP notice of the making of the application, including an application for leave.

(4) The State must be a party to the application represented by the DPP.

Section 158 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The Supreme Court, on an application under section 155 or 156, may make an innocent interest exclusion order.

(2) The court must, and may only, make an innocent interest exclusion order if it is satisfied-

(a) the applicant has or, apart from the forfeiture, would have, an interest in the property; and

(b) the applicant was not, in any way, involved in the commission of a relevant confiscation offence; and

(c) the applicant acquired the interest-

(i)   in good faith and for sufficient consideration; and

(ii) if the applicant acquired the interest at the time of or after the commission of the relevant confiscation offence-without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property.

Note that the law in respect of such applications is set to change later this year.  The effect will be to allow the State to apply for a tainted property substitution declaration.  This will allow for the State to preclude an exclusion of the value of an innocent interest in property where it can show that:

• (a) the property is similar enough to substitute property used (or intended to be used) by the prescribed respondent in the commission of the offence; and
• (b) the prescribed respondent had an interest in the property at the time of the offence.

Keep an eye on this page for when the new legislation comes into effect.