Section 141 of the Criminal Proceeds Confiscations Act Queensland states:

(1) This section applies only if the confiscation offence a prescribed respondent has been charged with, is about to be charged with, or has been convicted of, is a serious criminal offence.

(2) If the prescribed respondent has an interest in property restrained under a restraining order, the prescribed respondent may apply to the Supreme Court for a declaration that the property is not subject to automatic forfeiture.

(3) The court may make the declaration sought if it is satisfied-

(a) the property was not used in, or in connection with, any illegal activity and was not derived by a person from illegal activity; and

(b) the prescribed respondent's interest in the property was lawfully acquired.

The Court may order the all or part of the property requested be excluded from automatic forfeiture, or it may refuse the application.

If the application is successful, the restraining order will be amended to exclude the particular property from being subject to automatic forfeiture under section 163 of the Criminal Proceeds Confiscations Act. 

If you are unsuccessful, you property may be automatically forfeited.  Click here to learn more about automatic forfeiture.

The application will be heard in the Supreme Court.

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

That:

(1) Your are the prescribed respondent in the Restraining Order (i.e. the order was made against you); AND

(2) You have an interest in property restrained under the Restraining Order; AND

(3) You:

(a) are about to be charged with a serious criminal offence (i.e. an offence with a maximum penalty of 5 years imprisonment or more); OR

(b) have been charged with a serious criminal offence; OR

(c) have been convicted of a serious criminal offence; AND

(4) You made an application to exclude particular property restrained by that Restraining Order from being subject to automatic forfeiture; AND

(5) Ground to exclude that property from being subject to automatic forfeiture exists.

Grounds for Application - Criminal Proceeds Confiscations (After Charge or Conviction) Law - Restraining Order over Property - Application to Exclude from Automatic Forfeiture - Lawyer / Solicitor Article

In order to be successful, you will need to show a legitimate basis for your application known as a ground for the application. There is only one ground available for this type of application and that is to show that the property came from legitimate means. To show this you must present evidence of the following:

(1) That :

(a) the property was not used in, or in connection with, any illegal activity; AND

(b) the property was not derived by a person from illegal activity; AND

(c) the prescribed respondent's interest in the property was lawfully acquired.