Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 22

Determination of exclusion application-restraining order-automatic forfeiture

22. Determination of exclusion application-restraining order-automatic
forfeiture

On an application made under section 20, where the restraining order has been
made in relation to a Schedule 2 offence for the purposes of automatic
forfeiture-

   (a)  the court may make an order excluding the applicant's interest in the
        property from the operation of the restraining order if the court is
        satisfied that-

   (i)  the property in which the applicant claims an interest was lawfully
        acquired by the applicant; and

   (ii) the property is not tainted property; and

   (iia) the property is not derived property; and

   (iii) the property will not be required to satisfy any pecuniary penalty
        order or an order for restitution or compensation under the
        Sentencing Act 1991; or



   (b)  where the application is made by a person other than the defendant,
        the court may make an order excluding the applicant's interest in the
        property from the operation of the restraining order-

   (i)  if the court is not satisfied that the property in which the person
        claims an interest is not tainted property or derived property but is
        satisfied that-

                (A)  the applicant was not, in any way, involved in the
                     commission of the Schedule 2 offence; and

                (B)  where the applicant acquired the interest before the
                     commission, or alleged commission, of the Schedule 2
                     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 2
                     offence; and

                (C)  where the applicant acquired the interest at the time of
                     or after the commission, or alleged commission, of the
                     Schedule 2 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 or derived 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 2 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) if the court is satisfied that the property is not tainted property or
        derived property and 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 2 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; or

   (c)  where the application is made by the executor or administrator of the
        estate of a deceased defendant, the court may make an order excluding
        the applicant's interest in the property from the operation of the
        restraining order if the court is satisfied that-

   (i)  the defendant is dead; and

   (ii) there are reasonable grounds to believe that the interest claimed by
        the estate of the defendant was lawfully acquired by the defendant;
        and

   (iii) the property is not derived property; and

   (iiia) the property is not tainted property; and

   (iv) the property will not be required to satisfy any pecuniary penalty
        order or an order for restitution or compensation under the
        Sentencing Act 1991.