Asset Forfeiture & Confiscation

Asset Confiscation and Forfeiture

Asset forfeiture is the confiscation of assets from a person suspected of involvement in criminal activity. In certain situations, an asset forfeiture order can require a person to forfeit their assets to law enforcement agencies.

Is your property the subject of a restraining order or forfeiture order for an alleged criminal offence?

We understand the gravity of the situation. If your property has been subject to a forfeiture order, a restraining order or a civil forfeiture application, contact us today.

It is important to engage experienced criminal defence lawyers to assist in resisting any application from the Crown to confiscate your property.

The Confiscation Act 1997 (Vic)

The Confiscation Act 1997 (Vic) was specifically introduced to confiscate the proceeds of those who commit or are suspected to have committed serious crimes such as drug trafficking and cultivating. However, nowadays, the act applies to a broader range of crimes and can affect innocent third parties who haven’t been charged with any offending and have not partaken in any criminal activity.

These innocent parties get swept up in a blanket application of the law whereby their assets become targets for confiscation. Victims of the legislation might well be guilty of a particular offence or have no connection to it at all (being an unrelated third party), but, nonetheless, they often have their property unfairly targeted.

The Confiscation Act 1997 provides the means by which proceeds of crime may be confiscated. The objects of this legislation are:

to deprive persons of the proceeds of certain offences and of tainted property; and
to deter persons from engaging in criminal activity; and
to disrupt criminal activity by preventing the use of tainted property in further criminal activity; and
to undermine the profitability of serious criminal activity.

The most common methods used by the prosecuting agency to achieve these purposes are with:

Restraining Orders; and
Forfeiture Orders.

However, other orders that can be made are:

Pecuniary Penalty Orders
Property Substitution Orders

Types of forfeiture order

Under the Confiscation Act 1997, there are three types of forfeiture:

Discretionary conviction based forfeiture: If a defendant is convicted of a Schedule 1 offence, the DPP may apply for a forfeiture order in respect of ‘tainted property’ within 6 months of the date of conviction (s 32). The 6 month period may be extended with leave of the Court under s 31(2). Where the DPP makes an application, the Court has discretion whether or not to order forfeiture of tainted property.
Automatic forfeiture of restrained property: If a defendant is convicted of a more serious offence under Schedule 2, all property restrained by the Crown for the purpose of automatic forfeiture is liable to be automatically forfeited under s 35 of the Act 60 days from conviction, unless excluded by an exclusion order made under s 22. Exclusion applications can be made (which stop the 60-day running clock) to prevent some or all of the property from being forfeited. Unlike for discretionary forfeiture in which only tainted property is liable to forfeiture, all restrained property, is liable to forfeiture upon conviction unless subject to an exclusion order under s 22.
Civil forfeiture applications: If a restraining order is made for the purpose of civil forfeiture, the DPP must apply for civil forfeiture within 90 days of the date on which the restraining order was made under s 37 of the Act.

What is a civil forfeiture application?

Civil forfeiture applications were added to the Confiscation Act 1997 in 2004 and are a ‘suspicion’ based form of forfeiture which apply to suspected Schedule 2 offences and therefore do not require a conviction. The legislation allows for the Crown (DPP) to apply for a restraining order over property where no charges have been laid.

The Crown must, however, establish that a police officer has reasonable grounds to suspect that certain property is tainted property in relation to a Schedule 2 offence and that there are reasonable grounds for that suspicion.

It is possible for an affected party to make an application to exclude restrained property by proving on the civil standard of proof that the restrained property is not tainted property or that they were not involved or aware of the alleged offending (ss 53-54).

Key steps in relation to conviction-based forfeitures

There are several key steps in relation to ordinary and automatic conviction based forfeitures:

The DPP or an appropriate officer makes a restraining order application to satisfy a forfeiture order (s 15) in respect of property in which the accused has an interest or which is tainted property in relation to that offence (s 16).
Before conviction, a defendant or third party with an interest in the property may seek the exclusion of the property from restraint (ss 20-23).
A hearing occurs for a forfeiture application for Schedule 1 offences (ss 32-34), or an automatic forfeiture applies for more serious Schedule 2 offences (ss35-36).
Exclusion applications by a person, other than the convicted defendant may be made (ss 49-52).

Pecuniary penalty orders

So far we have discussed discretionary forfeiture, conviction based automatic forfeiture and civil forfeiture, however property may also be lost subject to a pecuniary penalty order (‘PPO’) or an order for restitution or compensation under the Sentencing Act 1991.

A Pecuniary Penalty Order is the power given to courts under Part 8 of the Act to order an amount that represents the financial proceeds of the crime for which an offender has been convicted. For the purposes of a PPO, restrained property can be ordered to be forfeited (s 70) and forfeited property is taken into account when calculating the PPO (ss67(1), 68(3)).

Property and tainted property

Under the Confiscation Act 1997, the concept of property includes that which the Crown may seek to restrain and which may be forfeited to the state.

The term ‘property’ is defined broadly in s 3 of the Act and includes both tangible and intangible property as well as any interest in property. An interest in property can include both legal and equitable interests as well as a right, power, or privilege over or in connection with property.

What is an interest in property?

Under the Act, the Crown may seek to restrain property in which an accused has an interest. S 10 of the act defines what an ‘interest’ in property can be and provides that a person can have an interest in property (meaning the property is able to be restrained for the purpose of a forfeiture application) if it:

is subject to an accused’s effective control; or
was gifted away within the last 6 years for some offences and at any time for more serious offences (under Schedule 2).

S 9 of the Act defines the term “effective control of property” and the possibility to have indirect control of property via trusts and companies making it possible for these types of applications to be possible where offenders would otherwise believe that their assets are protected.

Australia has also enacted mutual cooperation legislation for the sole purpose of facilitating forfeiture of overseas-held property (see the Commonwealth Mutual Assistance in Criminal Matters Act 1987).

What is tainted property?

Definition of tainted property in s 3 of the Confiscation Act 1997:

(a) In the case of civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, tainted property is property that—

was used, or was intended to be used in, or in connection with, the commission of one or more Schedule 2 offences; or
was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or
was derived or realised, or substantially derived or realised, directly or indirectly, from the commission of one or more Schedule 2 offences; or
is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or
is likely to be used, or intended to be used in, or in connection with, the future commission of one or more Schedule 2 offences.

(b) In any other case, property that, in relation to an offence—

was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or
was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or
was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or
is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or

in the case of an offence against s 194 (dealing with the proceeds of crime) under the Crimes Act 1958 , is proceeds of crime within the meaning of s 193 of that Act; or
in the case of an offence against s 195 (dealing with property suspected of being proceeds of crime) of the Crimes Act 1958, is referred to in that section; or
in the case of an offence against s 195A (dealing with property which subsequently becomes an instrument of crime) of the Crimes Act 1958 , becomes an instrument of crime within the meaning of s 193 of that Act.

Property connected to the commission of the offence

To determine whether property is tainted property the Crown must demonstrate a connection between the offending and the property in question. The Crown can do this in one of three ways, as demonstrated above. For example, in a situation where a crop house (i.e. a house where a crop of cannabis is being grown) has been found, there is a clearly a connection between the offence of growing cannabis and the property (being the house). This satisfies the section (a) above, and the house is therefore tainted property. In terms of the level of connection to the crime, there are varying degrees, and this is something that must be considered on a case by case basis.

Property derived or realised from property used in connection with the offence

The second way the Crown can establish that the property is tainted property is under subsection (b), being property derived or realised from property used in connection with the offence. The Crown must first establish a connection with the original property and then prove that the property has been sold or swapped for the new property. In this circumstance the new property has been derived from the old property that was used in connection with the offence and is subsequently also considered to be tainted property.

Property derived or realised by any person from the commission of the offence

Finally there is subsection (c) of the definition of tainted property where the Crown seeks to establish that an offender has substantially derived or realised the asset as a result of committing an offence. A common example is drug trafficking. The judicial meaning of ‘substantially derived or realised’ is a matter of assessment that must be done on a case by case basis after consultation with an experienced asset confiscation lawyer.

Restraining orders

A restraining order is a prelude to a forfeiture order in cases where the Crown deems it necessary to preserve the property prior to forfeiture. Police can pursue a restraining order up to 48 hours prior to laying charges in relation to a Schedule 1 or Schedule 2 offence (s 16).

A restraining order is made by the Crown in anticipation of a criminal conviction, after a conviction, or in anticipation of a civil forfeiture application (where there has been no conviction). As mentioned above, the act has a broad power to restrain tainted property which includes any property in which the accused has an interest, regardless of whether the property is jointly owned, lawfully acquired, or used by a third party.

These applications (once they meet the relevant criteria under the act) usually result in the Court making an order ex parte over the entire property or properties for which an accused has an interest.

Property Substitution Declarations

A Property Substitution Declaration (PSD) allows the state to apply to the Court to swap the assets of the accused convicted of a schedule 1 offence with the assets of a third party- see s 34B and s34C. It is used in cases where the accused person had their own property with which to commit an offence, however they opted instead to use someone else’s. The only restriction in relation to a PSD is that the assets must be of the same nature or description that was used or intended to be used by the accused in the commission of the offence.

Exclusion orders

Exclusion orders allow an accused person or third party with an interest in the restrained property to make an application for the property to be excluded from confiscation.

S 20 of the Confiscation Act 1997 states that if a Court makes a restraining order under s 18 any person claiming an interest in the property, including the accused or a person other than the accused, may apply to the Court for an exclusion order under s 21, 22 or 22A (a person other than the accused).

The exclusion provisions have a reverse onus in that the accused or an affected third party must initiate exclusion proceedings. Applications on behalf of third parties can be difficult as they require establishing a legal interest in the restrained property, which must be provided to the Court in the form of an affidavit exhibiting relevant financial documents.

In addition to providing evidence of a legal interest in the restrained property, a third party must also establish that they were not in any way involved with and did not hold a reasonable suspicion of the offending.

If you have been notified of an application to restrain or forfeit property, please contact our office today so that we can advise you of your options and whether it is possible to seek an exclusion order from the Court.

S 21 Exclusion applications for restraining orders in relation to Schedule 1 offences

Section 21 of the Confiscation Act 1997 deals with the process of determining exclusion applications for restraining orders connected to Schedule 1 offences. This section outlines the circumstances under which a court can make an order to exclude an applicant’s interest in certain property from the effects of a restraining order.

The court can issue an order to exclude the applicant’s interest in the property from the restraining order, if the court is convinced that the property in question:

is not tainted property; and
will not be needed to serve the purposes for which the restraining order was issued (s 21(1)(a)).

If the applicant is a person other than the accused and the Court thinks the property may be tainted, the Court may still issue an exclusion order if it is satisfied that:

the applicant had no involvement in the commission of the Schedule 1 offence; and
when the applicant acquired their interest in the property before the alleged offence, they had no knowledge of the accused’s intention to use the property for the offence; and
if the applicant acquired their interest in the property at or after the commission of the offence, they did so without knowing or arousing suspicion that the property was tainted; and
the accused did not have effective control over the applicant’s interest in the property, either at the time of being charged with the offence or when the restraining order was issued; and
if the applicant obtained the interest from the accused, directly or indirectly, it was done so for sufficient consideration (s 21(1)(b)(i)).

However, if the Court is satisfied that the property is not tainted but that the property may be needed (for the purposes for which the restraining order was issued), the Court may still issue an exclusion order if satisfied that:

the applicant’s interest in the property was not under the effective control of the accused at the time of being charged with the Schedule 1 offence or when the restraining order was issued; and
where the applicant acquired the interest from the accused, directly or indirectly, that it was done so for sufficient consideration (s 21(1)(b)(ii)).

S 22 Exclusion applications for restraining orders in relation to Schedule 2 offences

Section 22 of the Confiscation Act 1997 addresses the process of determining exclusion applications for restraining orders connected to Schedule 2 offences, specifically for the purpose of automatic forfeiture under Section 35.

The court may issue an exclusion order for the applicant’s interest in the property if it is satisfied that:

the property claimed by the applicant was lawfully acquired; and
the property is not tainted and will not be subject to a tainted property substitution declaration under s 36F; and
the property is not ‘derived property’ (property derived or realised from unlawful activity by the applicant or the accused); and
the property will not be required to satisfy any pecuniary penalty order, or order for restitution or compensation under the Sentencing Act 1991 (s 22(1)(a)).

If the applicant is a person other than the accused and the Court thinks the property is tainted or derived property, it can still issue an exclusion order if satisfied that:

the applicant was not involved in the commission of the Schedule 2 offence; and
if the applicant acquired the interest before the offence, they had no knowledge of the accused’s intention to use the property for the offence; and
if the applicant acquired the interest at or after the offence, it was done so without knowledge or arousing suspicion that the property was tainted or derived property; and
the accused did not have effective control over the applicant’s interest in the property, either at the time of being charged with the offence or when the restraining order was issued; and
where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration (s 22(1)(b)).

When the application is made by the executor or administrator of the estate of a deceased accused, the court may issue an exclusion order if it is satisfied that:

The accused is deceased.
There are reasonable grounds to believe that the interest claimed by the estate was lawfully acquired.
The property is not derived property.
The property is not tainted and will not be subject to a tainted property substitution declaration.
The property will not be needed for pecuniary penalty orders or orders for restitution or compensation under the Sentencing Act 1991 (s 22(1)(c)).

S 22A exclusion applications for restraining orders for serious drug offences

Section 22A(1) addresses the exclusion of an applicant’s interest in property from the operation of a serious drug offence restraining order made in relation to a serious drug offence. The court may make an exclusion order if satisfied that:

the property is neither tainted nor derived property; and
the applicant was not in any way involved in commission of the serious drug offence; and
the applicant’s interest was not subject to the effective control of the accused on the earlier of:
- the date the accused was charged with the serious drug offence; or
- the date the serious drug offence restraining order was made in relation to the property
where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration (s 22A(1)(a)).

If the Court thinks the property is tainted or derived property, the Court may still issue an exclusion order if satisfied that:

where the applicant acquired the interest before the commission or alleged commission of the serious drug offence, the applicant did not know that the accused would use or intended to use the property in connection with the offence; and
where the applicant acquired the interest at the time of or after the commission or alleged commission of the serious drug offence, the applicant acquired it without knowledge and in circumstances that do not arouse reasonable suspicion that the property was tainted or derived; and
the applicant’s interest was not subject to the effective control of the accused on the earlier of:
- the date the accused was charged with the serious drug offence; or
- the date the restraining order was made in relation to the property
where the acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; and
the applicant was not in any way involved in the commission of the serious drug offence s 22A(1)(b)).

Making an undue hardship application

An application for relief on the grounds of undue hardship can be made (with notice given to the applicant for the order) in discretionary forfeiture and civil forfeiture matters under s 45 of the Confiscation Act 1997 (the Act). If the Court is satisfied that undue hardship may reasonably be likely to be caused to a person by a forfeiture order or a civil forfeiture order, the Court may:

order that the person is entitled to be paid out of the forfeited property being an amount that the court thinks is necessary to prevent undue hardship to the person; and
may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

S 45(1A) states that when determining whether undue hardship may be caused by a forfeiture order to the person convicted of the offence, the court must not take into account the impact on that person of the sentence given for that offence.

Case law on hardship applications

Case

Facts

Held

R v Tran [2004] VSC 218

The defendant was found guilty of the offence of cultivate a narcotic plant being a forfeiture offence under the Act.

The DPP sought forfeiture of the defendant’s property valued at approximately $260,000 of which the defendant held an effective equity in the property of $60,000. The defendant’s estranged wife and son also had an interest in the property.

Her Honour Warren CJ dismissed the application for forfeiture applying the principles in the case of Winand.

Her reasons were as follows:

The value of the equity of the defendant in the property exceeded the value of the subject cannabis
The nature and gravity of the offence, although serious, did not warrant the gravity of the consequences of the forfeiture sought
The defendant’s son would be affected by the order

Her Honour stated:

“I cannot be satisfied that it is appropriate to make the orders sought. However, the most significant factor in this case is the extent of hardship to the defendant. He would be rendered, as it was put on his behalf, “homeless”. I cannot be satisfied, in particular weighing up the factors of deterrence, impact on innocent parties and the defendant’s rehabilitation, that the order should be made. I consider that, in the circumstances of this matter, the making of the order would cause, in the words of the Court of Appeal in Winand “…unacceptable hardship and … be manifestly unfair.”

DPP v Smith [2007] VSC 98

Mrs Smith pleaded guilty to drug offences, namely cultivation & theft (diverting electricity), under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and was sentenced to a Community-Based Order without conviction.

The property where the offending took place was a holiday home purchased by Mr and Mrs Smith in 1991 for $15,000.

The property at the time of the applications was worth in the region of $250,000.

Two applications were made in this case. The first was on behalf of the DPP seeking forfeiture under s 32, and the second application for an exclusion order under s 49 by Mr Smith (the respondent’s husband), who had an interest in the property.

Mandie J dismissed the application by the DPP and it was therefore unnecessary to determine Mr Smith’s application for an exclusion order stating, “in my opinion, in all of the circumstances, forfeiture of the subject property would be wholly disproportionate to the nature and gravity of the offences and would be manifestly unfair to Mrs Smith and importantly to Mr Smith.”

Mandie J considered the following matters:

The fact that Mrs Smith had no prior convictions and the sentence that she received, and the sentencing dispositions imposed in Winand and Tran.
The substantial value of the property to the value of the cannabis and the diverted electricity (noting that the latter had been paid by way of restitution).
That Mr Smith had purchased the home and had no knowledge of Mrs Smith’s offences, nor was he involved in the commission of the offences.
That forfeiture of the property would cause significant prejudice to innocent parties, including Mr Smith and at least one child of the marriage Kelly.

R v Winand (1994) 73 A Crim R 497

The appellant was convicted of trafficking and possession of a drug of dependence and cultivating cannabis. He was sentenced to 9 months imprisonment with 6 months suspended for a period of 12 months.

The DPP applied for forfeiture of his home where he was growing and possessed cannabis.

The Criminal Court of Appeal (Phillips CJ, Crockett Southwell JJ) overturned the order made by the Trial Judge stating that:

“The making of an order to an unacceptable degree, operate disproportionately to the nature and gravity of the offence. To order the taking from the appellant his only asset with any significant value and which is his home the equity in which is worth $65,000 to $70,000 is in all the circumstances of this case to make an order which would cause unacceptable hardship and thus we believe to be manifestly unfair.”

Their Honours held that the following matters were relevant:

the value of the subject property
the nature and gravity of the offending
the degree of the offender’s involvement
the offenders antecedents
the value of any other property confiscated and the penalty imposed
the nature of the offender’s interest in the property
the value of the drugs or the size of the crop
whether the property was acquired with the proceeds of the sale of drugs
the utility of the property to the offender
the length of ownership of the property
the extent to which the property was connected with the commission of the offence
the fact that forfeiture is intended as a deterrent
the interests of innocent parties in the property
the extent (if any) to which the retention of the property might bare upon the offenders rehabilitation

DPP v Laszloe Gyurcsik [2007] VSC 424

The respondent was convicted of cultivating and possession of cannabis valued at approximately $132,000.

He was sentenced to a concurrent sentence of 9 month’s imprisonment wholly suspended for 2 years and a fine of $25,000.

The DPP sought an order for forfeiture of the respondents half interest in a property purchased by his parents valued at $360,000.

Kellam J dismissed the application and considered the following matters as being relevant:

the quantity and street value of the cannabis was substantial
the property was used to cultivate cannabis
the fact that the respondent earned a substantial income enabling him to find alternative accommodation for his family
the fact that his widowed mother, an innocent victim would suffer hardship by the likely sale of the property (purchased by her and her husband a quarter of a century ago).

Asset confiscation offences

Schedule 1 offences relate to offences under the:

Aboriginal Heritage Act 2006;
Casino Control Act 1991;
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995;
Domestic Animals Act 1994;
Drugs, Poisons and Controlled Substances Act 1981
Dangerous Goods Act 1985;
Fisheries Act 1995;
Forests Act 1958;
Gaming Regulation Act 2003;
National Parks Act 1975;
Prevention of Cruelty to Animals Act 1986;
Racing Act 1958; and
Wildlife Act 1975.

These offences also include:

An indictable offence against the law of Victoria
A Schedule 2 offence
An offence against s 123 of Confiscation Act 1997 (possession etc of property suspected of being proceeds of crime), as in force immediately before its repeal by section 5(1) of the Crimes (Money Laundering) Act 2003.
An offence against s 195 (dealing with property suspected of being proceeds of crime) of the Crimes Act 1958

Schedule 2 offences relate to more serious offences found under the:

Drugs, Poisons and Controlled Substances Act 1981
Crimes Act 1958;
Sex Work Act 1994;
Casino Control Act 1991;
Confiscation Act 1997;
Racing and Gambling Act (Amendment) Act 2004;
Fisheries Act 1995;
Conveyancers Act 2006;
Estate Agents Act 1980;
Firearms Act 1996.

Schedule 2 offences also include common law offences of conspiracy to defraud, misconduct in public office and bribery of a public official.

Asset confiscation prosecution

Asset confiscation is monitored by three key agencies:

Victoria Police;
Office of Public Prosecutions (OPP); and
Asset Confiscation Operations Unit (ACO).

Victoria Police investigates crime and identifies assets for confiscation. There is a specialist squad attached to Victoria Police called the Criminal Proceeds Squad dedicated to helping identify proceeds of crime and assisting in the preparation required by the Office of Public Prosecutions.

The Office of Public Prosecutions prosecutes indictable crime in Victoria. There is a dedicated unit within the OPP called the Proceeds of Crime Directorate. This unit prosecutes and responds to all restraining, exclusion and forfeiture application orders.

The Assets Confiscations Operations Unit is responsible for monitoring the confiscation scheme. As a result of many successful applications initiated by the Crown (OPP) there is considerable wealth flowing back to government from the scheme. The ACO, along with other committees, is responsible for managing that wealth through a trust fund.

The unfortunate reality with this legislation is that many innocent parties are swept up in the confiscation process.

Our criminal defence lawyers have extensive experience representing clients faced with potential asset confiscation and restraining order applications in the County Court. We have asset confiscation lawyers at our offices located in the Melbourne CBD, Ringwood, Frankston, Dandenong and Moorabbin areas.

Unexplained Wealth Orders

The unexplained wealth provisions were introduced to the Confiscation Act in 2014 by The Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014. Like many other states in Australia who already had enforced provisions in their legislation, the provisions under Victorian law are intended to require people suspected of criminal activity, who also own property, to come before a Court and explain the lawful origin of their wealth. In the event they are unable to do so, they may well face the forfeiture of their property.

An unexplained wealth restraining order must be made by the court under s 40F(1) if it is satisfied that the deponent of the supporting affidavit suspects (and there are reasonable ground to suspect) that:

a person has engaged in serious criminal activity; and
the person has an interest in the property sought to be restrained; and
in the case of property located outside Victoria—the serious criminal activity occurred in Victoria; and
the total value of the property is $50 000 or more (s 40I(1)).

The court may be satisfied that the deponent of the affidavit reasonably suspects that a person has engaged in serious criminal activity under s 40I(2):

regardless of whether that person or any person has been charged with, tried for, acquitted or convicted of, or has had a conviction quashed, pardoned or set aside for, an offence that is, or offences that are, suspected of constituting the serious criminal activity; and
where more than one offence is specified as constituting the serious criminal activity – if the court is satisfied that the deponent reasonably suspects the conduct of the person constitutes at least one of those offences.

S 40I(3) states that the court must make an unexplained wealth restraining order if it satisfied that the deponent of the affidavit supporting the application suspects:

that the property sought to be restrained was not lawfully acquired; and
either the property is located in Victoria; or
the person who has acquired the property is an ordinary resident in Victoria; and
there are reasonable grounds for that suspicion.

Under s 40I(4), in determining whether there are reasonable grounds for suspecting that a property was not lawfully acquired, the court may have regard to one or more of the following:

The lawful income of a person with an interest in, or effective control of, the property;
Any suspected unlawful activity of a person with an interest in, or effective control of the property;
The prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property;
The circumstances under which the property has come under the attention of Victoria Police;
Any other relevant matter.

Unless a successful exclusion application is made, the property that is the subject of an unexplained wealth order is forfeited to the Minister on expiry of 6 months after the making of the unexplained wealth restraining order (s 40ZA(1))

An exclusion application can be made following an unexplained wealth restraining order. An application must be made within 90 days after service of notice of the making of the unexplained wealth restraining order or in any other case, within 90 days after the making of the unexplained wealth restraining order (s 40R).

An application for exclusion from unexplained wealth forfeiture may also be made under s 40ZC so long as it is made before the end of the 60 days commencing on the day on which the property is forfeited to the Minister. These applicants cannot be made without leave of the Court (s 40ZC(2)(a)).

Can I appeal a forfeiture decision?

Yes, it is possible to appeal against an order to forfeit property, or a refusal to make an exclusion order under the Confiscation Act 1997 s 142.

It is however very important that you do not ignore your notification by the Crown. If you ignore the official notification, your property will be forfeited. In some circumstances it may be possible to appeal the decision however there are certain time frames and procedures that must be followed. It is critical that you seek legal advice from experienced asset confiscation solicitors and respond via affidavit to any action being taken against your property. If you do not, the consequences could be serious.

We have handled a number of these matters and are often successful in protecting property from seizure. The most critical factor in these applications is a well-prepared and considered response.

If you have a pending asset restraining order or asset confiscation application against your belongings or property, call our criminal law firm urgently so we can assist you in formulating a response.

Our asset confiscation lawyers can help you from one of our many offices throughout Melbourne.

Asset Forfeiture & Confiscation

Contents of this page

Asset Confiscation and Forfeiture

The Confiscation Act 1997 (Vic)

Types of forfeiture order

What is a civil forfeiture application?

Key steps in relation to conviction-based forfeitures

Pecuniary penalty orders

Property and tainted property

What is an interest in property?

What is tainted property?

Restraining orders

Property Substitution Declarations

Exclusion orders

Making an undue hardship application

Case law on hardship applications

Asset confiscation offences

Asset confiscation prosecution

Unexplained Wealth Orders

Can I appeal a forfeiture decision?

Charges Involving Asset Confiscation

s71 Trafficking in a Drug or Drugs of Dependence – Large Commercial Quantity

s71AA Trafficking in a Drug or Drugs of Dependence – Commercial Quantity

s72 Cultivation of Narcotic Plants – Large Commercial Quantity

s72A Cultivation of Narcotic Plants – Commercial Quantity

Case Studies

Asset Confiscation – Cultivation of Commercial Quantity of Cannabis

What Our Clients Say

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