A forfeiture order is a final order that means property is permanently surrendered to the Commonwealth. These orders are often conviction based, but they can also be granted in circumstances where the suspected person has not been found guilty of an offence, but the Court is satisfied on the balance of probabilities that a person has engaged in an offence, or the property is the proceeds of a crime.
Obtaining Forfeiture Orders
In order to make a conviction-based Forfeiture Order, a Court must be satisfied that the property to be forfeited is the proceeds of one or more offences. Avoiding a conviction will not automatically lead to the striking out of a forfeiture order, and the Commonwealth may apply to have the forfeiture order confirmed.To make a non-conviction-based Forfeiture Order, a Restraining Order covering the property must have been in force for at least 6 months, and the Court must be satisfied on the balance of probabilities that ‘the relevant grounds’ for making the order are satisfied.
‘The relevant grounds’ varies depending on the type of restraining order. For a conduct-based restraining order, the Court will need to be satisfied that the person has engaged in conduct constituting one or more serious offences, whereas a proceeds-based order requires a Court be satisfied that the proceeds are the result of one or more indictable offences.
Reducing the Impact of Forfeiture Orders
A court may make an order excluding property from a Forfeiture Order if it is satisfied that the applicant’s interest in the property is not the proceeds of unlawful activity, and not the instrument of a serious offence. For conviction-based forfeitures, the Court must be satisfied that the applicant’s interest in the property is not the proceeds of the offence.Compensation Order
Individuals who have had their property forfeited may be able to apply for a Compensation Order, requiring the Commonwealth to compensate them from any property seized that is untainted by alleged offending, and derived from legitimate means.Automatic-Forfeiture
Automatic-Forfeiture occurs without the need of a Court order, and will occur automatically when property is already restrained, and a person is found guilty of a serious offence. Forfeiture will occur 6 months after conviction, unless application is made to exclude the property from forfeiture through exclusion orders, compensation orders or recovery orders.Time limits in this area are critical. As is the resolution of charges in a matter. You should speak to one of our experienced lawyers as soon as possible if you have been served with a restraining order.
