What the law says
Section 156 of the Criminal Proceeds Confiscations Act Queensland states:
- A person, other than a person whose conviction is the basis for the application for the forfeiture order or the forfeiture order, who claims an interest in property forfeited under a forfeiture order may apply to the court that made the forfeiture order for an innocent interest exclusion order.
- Unless the court gives leave under section 157-
- (a) the application must be made before the end of the 6 months starting on the day the forfeiture order was made; and
- (b) the following persons can not apply under this section for an innocent interest exclusion order-
- (i) a person who was given notice of the application for the forfeiture order;
- (ii) a person who appeared at the hearing of the application for the forfeiture order.
- The applicant must give the DPP notice of the making of the application, including an application for leave.
- The State must be a party to the application represented by the DPP.
Section 158 of the Criminal Proceeds Confiscations Act Queensland states:
- The Supreme Court, on an application under section 155 or 156, may make an innocent interest exclusion order.
- 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
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 and your property is still vested in the State, then the State must transfer the property back to you. However, where the property is no longer vested in the State (i.e. it was sold off), the State must pay you the value of the property.
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.
In order for you to be successful in an application at Court, you must show the following:
- Your are a person who has an interested 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
- You made an application to exclude an innocent interest from the application for a Forfeiture Order; AND
- That application was made after the Forfeited Order had been decided; AND
- You gave notice to the Department of Public Prosecution of your application; AND
- You made the State a party to your application; AND
- Ground exists for the application.
Grounds for Application – Criminal Proceeds Confiscations (After Charge or Conviction) Law – Forfeiture Order over Property – Application by Other Person to Exclude Value of Innocent Interest AFTER Order Made – Lawyer / Solicitor Article
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:
- You have or would have an interest in the property if there were no Forfeiture Order in place; AND
- You were not, in any way, involved in the commission of a relevant confiscation offence; AND
- You acquired the interest in good faith and for sufficient consideration; AND
- 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.