Forfeiture Orders: Understanding Your Rights and Legal Options

Could a Forfeiture Order be made in my case?

The offences for which a Forfeiture Order may be made are very broad and are those set out in Schedule 1 of the Act and include:

• An indictable offence against the law of Victoria
• A schedule 2 offence; and
• Numerous other offences under legislation designed to regulate certain behaviour – for example, designated offences under the Aboriginal Heritage Act 2006, the Dangerous Goods Act 1985 and the Fisheries Act 1995 etc.

 

When is property considered tainted?

Property is generally considered tainted if it has been used in connection with the commission of the offence, or was derived or substantially derived from the commission of the offence. This can include a car that was used to transport stolen goods, the mobile phone where illegal material was stored, or a house which was paid for using funds derived from the criminal activity. The key question to consider is the role of the property in the offending.

What if the property is jointly owned or someone else has an interest in it?

Notice of an application for forfeiture must be given to any person who has an interest in the identified property. The fact that it is jointly owned does not prevent the authorities from being able to make an Application to forfeit.

Can someone else other than the accused apply for their property to be excluded?

Exclusion Applications can be made by a person other than the accused. Sometimes, in these cases, the court may choose to exclude the property even if it considers the property as tainted, and even if the court believes that this property may be required to satisfy any purpose for which the Restraining Order was made. The circumstances in which a court could make an Exclusion Order on application by someone other than the accused include:

• Where the applicant was not in any way involved in the commission of the schedule 1 offence
• Where the applicant acquired the interest before the alleged commission of the schedule 1 offence, and did not know that the accused would use the property in connection with the schedule 1 offence
• Where the applicant acquired the interest from the accused and it was acquired for sufficient consideration;

There may also be other situations in which a court might make an exclusion order. It is important to speak to a lawyer to obtain advice about exclusion in your specific case.

Can I stop a Forfeiture Order from being made in my case?

There may be an opportunity to oppose the making of a forfeiture order in some cases. One basis could be to argue that the property is not tainted. The Court can also have regard to the use that is ordinarily made of the property, whether undue hardship may be likely to be caused to a person if it were to be forfeited, and whether someone else is claiming an interest in the property.