Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 52

Determination of exclusion application-automatic forfeiture

52. Determination of exclusion application-automatic forfeiture



(1) On an application made under section 51, the court may make an order
excluding the applicant's interest in property from the operation of section
35-

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

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

   (ii) where the applicant acquired the interest before the 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

   (iii) where the applicant acquired the interest at the time of or after the
        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

   (iv) 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

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

   (b)  if the court is satisfied that the property is not tainted property or
        derived property and that-

   (i)  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

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

(2) If the court makes an order under subsection (1), the court may also make
an order declaring the nature, extent and value of the applicant's interest in
the property.