Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 21

Determination of exclusion application-restraining order-Schedule 1 offence

21. Determination of exclusion application-restraining order-Schedule 1
offence

On an application made under section 20, where the restraining order has been
made in relation to a Schedule 1 offence (other than for a purpose referred to
in paragraph (b) or (c) of section 15(1))-

   (a)  if the court is satisfied that the property in which the applicant
        claims an interest-

   (i)  is not tainted property; and

   (ii) will not be required to satisfy any purpose for which the restraining
        order was made- the court may make an order excluding the applicant's
        interest in the property from the operation of the restraining order;
        or

   (b)  if the applicant is a person other than the defendant and-

   (i)  the court is not satisfied as specified in paragraph (a)(i), the court
        may make an order excluding the applicant's interest in the property
        from the operation of the restraining order if satisfied that-

                (A)  the applicant was not, in any way, involved in the
                     commission of the Schedule 1 offence; and

                (B)  where the applicant acquired the interest before the
                     commission, or alleged commission, of the Schedule 1
                     offence, the applicant did not know that the defendant
                     would use, or intended to use, the property in, or in
                     connection with, the commission of the Schedule 1
                     offence; and

                (C)  where the applicant acquired the interest at the time of
                     or after the commission, or alleged commission, of the
                     Schedule 1 offence, the applicant acquired the interest
                     without knowing, and in circumstances such as not to
                     arouse a reasonable suspicion, that the property was
                     tainted property; and

                (D)  the applicant's interest in the property was not subject
                     to the effective control of the defendant on the earlier
                     of the date that the defendant was charged with the
                     Schedule 1 offence or the date that the restraining order
                     was made in relation to the property; and

                (E)  where the applicant acquired the interest from the
                     defendant, directly or indirectly, that it was acquired
                     for sufficient consideration; or

   (ii) the court is satisfied as specified in paragraph (a)(i) but not
        satisfied as specified in paragraph (a)(ii), the court may make an
        order excluding the applicant's interest in the property from the
        operation of the restraining order if satisfied that-

                (A)  the applicant's interest in the property was not subject
                     to the effective control of the defendant on the earlier
                     of the date that the defendant was charged with the
                     Schedule 1 offence or the date that the restraining order
                     was made in relation to the property; and

                (B)  where the applicant acquired the interest from the
                     defendant, directly or indirectly, that it was acquired
                     for sufficient consideration.