Criminal Proceeds Confiscation Act – Application To Exclude From Forfeiture Where Innocent Interest

What the law says

Section 155 of the Criminal Proceeds Confiscations Act Queensland states:

1. A person, other than a person whose conviction is the basis for the application for the forfeiture order, who claims an interest in property included in an application for a forfeiture order may apply to the court to which the application for the forfeiture order is made for an innocent interest exclusion order.
2. The applicant must give the DPP notice of the making of the application.
3. The State must be a party to the application represented by the DPP.

Section 158 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court, on an application under section 155 or 156, may make an innocent interest exclusion order.
2. The court must, and may only, make an innocent interest exclusion order if it is satisfied-
   • (a) the applicant has or, apart from the forfeiture, would have, an interest in the property; and
   • (b) the applicant was not, in any way, involved in the commission of a relevant confiscation offence; and
   • (c) the applicant acquired the interest-
     • (i)   in good faith and for sufficient consideration; and
     • (ii) if the applicant acquired the interest at the time of or after the commission of the relevant confiscation offence-without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property.

Note that the law in respect of such applications is set to change later this year.  The effect will be to allow the State to apply for a tainted property substitution declaration.  This will allow for the State to preclude an exclusion of the value of an innocent interest in property where it can show that:

• (a) the property is similar enough to substitute property used (or intended to be used) by the prescribed respondent in the commission of the offence; and
• (b) the prescribed respondent had an interest in the property at the time of the offence.

Keep an eye on this page for when the new legislation comes into effect.

What the police must prove

In order for you to be successful in an application at Court, you must show the following:

That:

1. Your are a person who has an interest in the property sought to be forfeited, other than prescribed respondent in the Forfeiture Order (i.e. the person whose conviction is the basis of the application); AND
2. You made an application to exclude an innocent interest from the application for a Forfeiture Order; AND
3. That application was made prior to the Forfeiture Order application being decided; AND
4. You gave notice to the Department of Public Prosecution of your application; AND
5. You made the State a party to your application; AND
6. Ground exists for the application.

Maximum penalty

The Court may order the all or part of the value of your interest in the property be excluded, or it may refuse the application.

If the application is successful, the prescribed value of your interest in the property will be excluded from the operation of any Restraining Order and will be excluded from being considered in the application for Forfeiture Order.

If you are unsuccessful, the Restraining Order will remain in place and it you will have to continue to abide by that order. Further, the property may be subject to forfeiture if the Forfeiture Order application is successful.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

In order to be successful, you will need to show a legitimate basis for your application known as a ground for the application. There is only one possible ground for this application, namely that the property you have an interest in was acquired through legitimate means.  In order to show this you must produce evidence of the following:

1. You have or would have an interest in the property if there were no Forfeiture Order in place; AND
2. You were not, in any way, involved in the commission of a relevant confiscation offence; AND
3. You acquired the interest in good faith and for sufficient consideration; AND
4. You acquired the interest at the time of or after the commission of the relevant confiscation offence without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property.