If you have been served with a Restraining Order, it is crucial that you seek legal advice immediately as there are strict time frames in which you MUST take action if you intend to exclude your property from the Restraining Order.
The Purpose of the Act
The purpose of the Confiscation Act 1997 (Vic) is to provide for forfeiture of property which is unlawfully obtained. This particular Act is very unforgiving, especially for uninvolved third parties.
This includes many types of real and personal property, some common examples of real property include houses and land, whereas personal property includes items such as cars, jewellery, cash, bank accounts and crypto currency.
There are various types of Restraining Orders that may be applied for depending on the type of offence, or circumstances of the case. The test to exclude property varies between each type of Restraining Order.
Understanding the Process
Applications for a Restraining Order are usually made ex parte, meaning a person will have no notice of the Application until they are served with a Restraining Order. It is critical that advice is sought from a Confiscation expert as soon as a Restraining Order is served to ensure interests in property are correctly declared and the appropriate steps are taken to preserve the asset.
Property can be restrained and forfeited even where no one has been charged or convicted. Often, spouses or third parties who are not involved in any alleged criminal offences can have their property restrained due to joint ownership.
Standard of Proof
In a criminal proceeding, the prosecution must prove an accused person guilty, beyond reasonable doubt. Although linked to a criminal proceeding, confiscation proceedings sit in the civil jurisdiction. As an applicant for exclusion, the onus is reversed and it becomes the Applicant’s responsibility to prove on the balance of probabilities that the Applicant acquired their property lawfully. Accordingly, the standard of proof is more difficult to overcome than in a criminal proceeding and the burden is on the Applicant to prove it. The evidentiary burden is cumbersome and requires specialised knowledge to ensure the evidence is prepared with the utmost care and skill.
How We Can Help
- Declaration of Property Interests;
- Applications for extensions of time;
- Applications for Exclusion Orders for Schedule 1 offences;
- Applications for Exclusion Orders from automatic forfeiture (Schedule 2 offences);
- Applications for Exclusion Orders from Unexplained Wealth Restraining Orders;
- Applications for Exclusion Orders from Civil Forfeiture Restraining Orders;
- Forfeiture order applications;
- Pecuniary penalty orders;
- Applications to vary restraining orders to sell or lease restrained property;
- Applications to vary restraining orders to meet reasonable living and business expenses; and
- Applications for compensation.