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Criminal Confiscation Proceeds Act – Application For Third Party To Avoid Automatic Forfeiture

Crime Commissions & Confiscation of Proceeds – QLD

Welcome to the QLD Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture article page. Everything you need to know about Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture according to QLD law – Dated: 01/09/2009
 

What the Law States according to QLD Law for Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture

According to QLD Law for the charge of Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture:

Section 165 of the Criminal Proceeds Confiscations Act Queensland states:

(1) A person, other than the prescribed respondent, who claims an interest in the property may apply to the Supreme Court for a third party order or a buy-back order.

(2) Unless the court gives leave under section 166-

(a) the application must be made within 6 months after the property is forfeited to the State; and

(b) the following can not apply to the court for a third party order or a buy-back order-

(i) a person who was given notice of the application for the relevant restraining order;

(ii) a person who appeared at the hearing of the application for the relevant restraining order;

(iii) a person who was given notice of the relevant restraining order.

(3) The applicant must give the DPP notice of the making of an application under this section, including an application for leave to apply for a third party order or a buy-back order.

(4) The State must be a party to the application represented by the DPP.

Section 166 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The Supreme Court may give leave to apply for a third party order or a buy-back order after the end of the 6 months mentioned in section 165(2)(a) if it is satisfied the delay in applying was not because of the applicant’s neglect.

(2) Also, the Supreme Court may give leave for a person mentioned in section 165(2)(b) to apply for a third party order or a buy-back order only if it considers the failure of the applicant to apply, or apply successfully, to have the property excluded from the relevant restraining order was not because of the applicant’s neglect.

(3) In this section-

relevant restraining order, for property automatically forfeited, means the restraining order made in relation to the forfeited property.

Section 167 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The Supreme Court, on an application under section 165, may make a third party order.

(2) The Supreme Court may make a third party order if it is satisfied-

(a) the applicant, 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 the relevant serious criminal 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 serious criminal offence-without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property; and

(d) the applicant’s interest in the property was not under the prescribed respondent’s effective control before it was forfeited.

(3) Also, the Supreme Court may make a third party order if it is satisfied-

(a) the applicant, apart from the forfeiture, would have an interest in the property; and

(b) the property was not used in, or in connection with, any illegal activity and was not derived by anyone from any illegal activity; and

(c) the applicant’s interest in the property was lawfully acquired.
 

The Maximum Penalty – Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture

According to QLD Law for the charge of Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture:

The Court may either grant a Third-Party Order in respect of all or part of the property, or refuse the application.

If your application is successful and the prescribed property is still vested in the State, then the State must transfer that property back to you. If successful and the property no longer vests in the State (i.e. it has been sold off), then the State must pay you the value of the property.

If you are unsuccessful, the Automatic Forfeiture will remain in effect and the property will remain forfeited to the State. In which case, you may be able to apply to the Court for a Buy-Back Order where the property is still vested in the State.
 

Possible Defences under QLD Law – Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture

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

(1) Your are a person who has an interest in the property that was automatically forfeited, other than prescribed respondent in the original Restraining Order (i.e. the person whose charge or conviction is the basis of the application); AND

(2) You made an application for a Third-Party Order:

(a) Within 6 months of the property being automatically forfeited and without:

(i) Notice of an application for a Restraining Order over your property; AND

(ii) Attending the hearing of the application for a Restraining Order over your property; AND

(iii) Notice of the Restraining Order being granted over your property; OR

(b) with leave of the Supreme Court as the delay was not a result of your neglect; AND

(3) You gave notice of the application to the Department of Public Prosecutions; AND

(4) You made the State a party to the application; AND

(5) Ground exists for a Third-Party Order.


Grounds of the Application – Criminal Proceeds Confiscations (After Charge or Conviction) Law – Restraining Order over Property – Automatic Forfeiture – Application for Third-Party Order -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 are two possible grounds for a Third-Party Order, namely that that you were unaware the property was tainted or that the property came from legitimate sources.

(1) In order to show that you were unaware the property was tainted, you must produce evidence of the following:

(a) you would have an interest in the property, had it not been forfeited; AND

(b) you were not, in any way, involved in the commission of the relevant serious criminal offence; AND

(c) you acquired the property in good faith and for sufficient consideration; AND

(d) you acquired the property without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property in relation to the offence.

(2) In order to show that the property came from legitimate sources you must produce evidence of the following:

(a) you would have an interest in the property, had it not been forfeited; AND

(b) the property was not used in, or in connection with, any illegal activity; AND

(c) the property was not derived by anyone from any illegal activity; AND

(d) your interest in the property was lawfully acquired.
 

In QLD which court will hear the matter – Criminal Confiscation Proceeds Act-Application For Third Party To Avoid Automatic Forfeiture

The application will be heard in the Supreme Court.

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