Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 16

Application for restraining order

16. Application for restraining order



(1) If a person has been, or within the next 48 hours will be, charged with or
has been convicted of a Schedule 1 offence-

   (a)  the DPP may apply, without notice, to any court; or

   (b)  an appropriate officer may apply, without notice, to the Magistrates'
        Court or the Children's Court-

for a restraining order in respect of property in which the defendant has an
interest or which is tainted property in relation to that offence.

(2) The DPP or a prescribed person, or a person belonging to a prescribed
class of persons, may apply, without notice, to the Supreme Court or the
County Court for a restraining order in respect of property if-

   (a)  a member of the police force suspects on reasonable grounds that the
        property is tainted property in relation to a Schedule 2 offence; or

   (b)  a member of the police force or a person authorised by or under an Act
        to prosecute the relevant type of offence believes that-

   (i)  within the next 48 hours a person will be charged with a Schedule 2
        offence; and

   (ii) that person has an interest in the property or that the property is
        tainted property in relation to that offence; or

   (c)  a person has been charged with a Schedule 2 offence and that person
        has an interest in the property or the property is tainted property in
        relation to that offence; or

   (d)  a person has been convicted of a Schedule 2 offence and that person
        has an interest in the property or the property is tainted property in
        relation to that offence.

(2A) An application under subsection (2) for the purposes of civil forfeiture
may only be made in respect of property that is reasonably suspected to be
tainted property.

(3) An application under subsection (2) for the purposes of automatic
forfeiture may only be made before the end of the relevant period in relation
to the conviction.

(4) An application under subsection (1) or (2)(b), (c) or (d) must be
supported by an affidavit of-

   (a)  a member of the police force; or

   (b)  a person authorised by or under an Act to prosecute the relevant type
        of offence-

setting out any relevant matters and stating that the member or person
believes the following matters and setting out the grounds on which the member
or person holds those beliefs-

   (c)  in the case of an application made in reliance on the proposed
        charging of the defendant with an offence, that the defendant will be
        so charged within the next 48 hours; and

   (d)  that the defendant has an interest in the property or the property is
        tainted property, as the case may be; and

   (e)  if the restraining order is being sought for a purpose referred to in
        paragraph (a), (d) or (e) of section 15(1), that-

   (i)  a forfeiture order may be made in respect of the property; or

   (ii) a pecuniary penalty order may be made against the defendant; or

   (iii) an order for restitution or compensation may be made under the
        Sentencing Act 1991.

(5) An application under subsection (2)(a) must be supported by an affidavit
of a member of the police force setting out any relevant matters and stating
that the member suspects that the property is tainted property in relation to
a Schedule 2 offence and setting out the grounds on which the member has that
suspicion.