Victorian Consolidated Legislation

Crown Proceedings Act 1958 - SECT 5

Recovery of moneys payable under forfeited recognisances

5. Recovery of moneys payable under forfeited recognisances





(1) Where a court is satisfied that a person has failed to observe a condition
of a recognisance to Her Majesty the court shall declare the recognisance to
be forfeited and shall order that the amount of the recognisance be paid to
the proper officer of the court forthwith or within such time as the court
allows and that in default of payment of that amount in accordance with the
order-

   (a)  in the case of a principal-that he be imprisoned for the term (not
        exceeding two years) fixed by the order; and

   (b)  in the case of a surety-that the amount be obtained by seizing and
        selling the property of the surety and in default, in whole or in
        part, that the surety be imprisoned for the term (not exceeding two
        years) fixed by the order.

(2) Every order under subsection (1) shall be in writing in the prescribed
form, shall be signed by the judge or magistrate presiding and shall be
delivered to the proper officer of the court.



(2A) Where a court makes an order under subsection (1) in the absence of a
principal the proper officer of the court shall send by post addressed to the
principal and to each of the sureties (if any) at the respective addresses
shown in the recognisance a notice in writing signed by the proper officer
setting forth-

   (a)  particulars of the order made against the principal and each of the
        sureties (if any); and

   (b)  a statement that a warrant to imprison, a warrant of seizure and sale
        or a warrant to seize property (as the case requires) will issue after
        the expiration of twenty-eight days unless-

   (i)  the amount due under the order is paid;

   (ii) an order is made for the payment of the amount by instalments; or

   (iii) application is made under subsection (3) for rescission or variation
        of the order.

(2B) Where a court makes an order under subsection (1) in the absence of a
principal no warrant shall issue for the recovery of moneys due under the
order until after the expiration of twenty-eight days from the day the order
is made.

			(3)    (a)	Where a recognisance has been forfeited under subsection (1) any principal or surety may at any time within twenty-eight days after the making of the order or, if the order was made in the absence of the principal or surety, within twenty-eight days after the order first comes to his notice apply to the court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount of the recognisance having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.


   (b)  Every application under paragraph (a) shall be in writing in the
        prescribed form signed by the person making the application, shall set
        forth the grounds of the application, and shall be lodged with the
        proper officer of the court a reasonable time in the circumstances
        before the hearing of the application.

   (c)  Not less than twenty-eight days before the hearing of an application
        under this subsection the applicant shall serve or cause to be served
        personally or by post on the informant or complainant or, in the case
        of a presentment, the Director of Public Prosecutions a true copy of
        the application lodged with the proper officer of the court.

   (d)  At any time after the lodging of an application under paragraph (a)
        the applicant may apply ex parte to a court for a stay of proceedings
        in the matter and upon any such application the court may direct the
        return of any warrant unexecuted or may stay the issue or execution of
        any such warrant pending the determination of an application under
        paragraph (a).





   (e)  The Governor in Council may make regulations prescribing forms for the
        purposes of this section.

(4) Every warrant to imprison a principal pursuant to the provisions of
paragraph (a) of subsection (1) shall be in or to the effect of the prescribed
form.





(5) Every warrant of seizure and sale and warrant to seize property of a
surety to a forfeited recognisance shall be in or to the effect of the
prescribed form and every warrant to imprison a surety shall be in or to the
effect of the prescribed form.



* * * * *

(9A) The proper officer of the court shall attach or cause to be attached to
every warrant to imprison issued under this section a notice in the prescribed
form addressed to the member of the police force executing the warrant
requiring such member to deliver to the principal or surety before the
execution of the warrant a statement in writing in the prescribed form with
respect to the provisions of subsection (3) and shall allow the principal or
surety, as the case may be, reasonable time and opportunity to make
application thereunder should he so desire.

(10) Any member of the police force to whom a warrant under this section is
directed shall execute the warrant according to its tenor unless the amount of
money specified in the warrant be sooner paid and the keeper of the gaol shall
receive into his custody any person referred to in a warrant to imprison and
safely keep him for the term or period on the warrant named unless the said
amount be sooner paid or unless he is otherwise removed or discharged from
custody by due course of law.

(11) The provisions of the Magistrates' Court Act 1989 with respect to
warrants and to the payment or part payment of moneys shall, so far as those
provisions are applicable and with such modifications as are necessary, extend
and apply with respect to the recovery of moneys payable under forfeited
recognisances and in particular with the following modifications, namely-

   (a)  any reference in those provisions to a warrant shall be read and
        construed as if it were a reference to a warrant issued for the
        purposes of this section;

   (b)  any reference in those provisions to a fine or other sum adjudged to
        be paid under a conviction or order of the Magistrates' Court shall be
        read and construed as if it were a reference to an order made for the
        recovery of the moneys payable under a forfeited recognisance;

   (c)  any reference in those provisions to the Magistrates' Court shall be
        read and construed as if it were a reference to the court making an
        order forfeiting a recognisance; and

   (d)  any reference in those provisions to a registrar of the magistrates'
        court shall be read and construed as if it included a reference to the
        Prothonotary or the Registrar of the County Court (as the case
        requires).

(12) The officer in charge of a prison shall on receiving payment of moneys
payable under a forfeited recognisance forthwith pay the amount received to
the proper officer of the court.



* * * * *