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Supreme Court (Chapter VI Confiscation Amendment) Rules 2016

S.R. No. 141/2016

TABLE OF PROVISIONSRule Page

1 Object 12 Authorising provisions 13 Commencement 24 Principal Rules 25 Subpoenas 26 Order 6 substituted 27 Forms 6–6A to 6–6J substituted and new Forms 6–6AB,

6–6AC, 6–6FA and 6–6GA inserted 148 Form 6–6K revoked 399 Forms 6–6L to 6–6O substituted and new Forms 6–6P to 6–6S

inserted 40═══════════════

Endnotes 54

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STATUTORY RULES 2016

S.R. No. 141/2016

Supreme Court Act 1986Confiscation Act 1997

Supreme Court (Chapter VI Confiscation Amendment) Rules 2016

The Judges of the Supreme Court make the following Rules:

1 Object

The object of these Rules is to amend Order 6 of Chapter VI of the Supreme Court Rules as a consequence of amendments to the Confiscation Act 1997 made by—

(a) the Confiscation Amendment Act 2010 as amended by the Sex Work and Other Acts Amendment Act 2011;

(b) the Integrity and Accountability Legislation Amendment Act 2012;

(c) the Criminal Organisations Control and Other Acts Amendment Act 2014;

(d) the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014; and

(e) the Confiscation and Other Matters Amendment Act 2016.

2 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, section 147 of the Confiscation Act 1997 and all other enabling powers.

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3 Commencement

These Rules come into operation on 12 December 2016.

4 Principal Rules

In these Rules, the Supreme Court (Criminal Procedure) Rules 20081 are called the Principal Rules.

5 Subpoenas

In Rule 1.12(1) of the Principal Rules, for "of Chapter I applies" substitute "and Order 42A of Chapter I apply".

6 Order 6 substituted

For Order 6 of the Principal Rules substitute—

"ORDER 6—CONFISCATION OF PROPERTY AND PROCEEDS OF CRIME

PART 1—PRELIMINARY MATTERS

6.01 Definitions

In this Order—

the Act means the Confiscation Act 1997;

the Commonwealth Act means the Proceeds of Crime Act 2002 of the Commonwealth.

6.02 Application of this Order

(1) Part 2 of this Order applies to a proceeding in the Court under the Act.

(2) Part 3 of this Order applies to a proceeding in the Court under the Commonwealth Act.

6.03 Notice by legal practitioner

Supreme Court (Chapter VI Confiscation Amendment) Rules 2016S.R. No. 141/2016

2

(1) A legal practitioner who commences to act for an accused or an applicant in a proceeding to which this Order applies shall, as soon as possible after commencing so to act, file a notice stating—

(a) that the legal practitioner is acting for the accused or the applicant, as the case requires;

(b) the contact details of the legal practitioner, including name, address, telephone number, fax number and e-mail address; and

(c) the relevant name and address for service.

(2) The legal practitioner shall be noted in the records of the Court as acting for the accused or the applicant, as the case requires.

(3) A legal practitioner who ceases to act for an accused or an applicant shall, as soon as possible after so ceasing to act—

(a) file a notice stating that the legal practitioner has ceased so to act; and

(b) serve a copy of the notice on—

(i) the DPP or the Commonwealth DPP, as the case requires; and

(ii) the accused or the applicant, as the case requires.

PART 2—APPLICATIONS UNDER THE CONFISCATION ACT 1997

6.04 Making of application to the Court

If, by the Act, notice of an application is required to be given, the application is taken


3

to be made when the notice of application is filed.

6.05 Notice and service generally

If notice is required by or under the Act or this Order to be given to any person, it shall be in writing and served on that person.

Note

See section 137 of the Act.

6.06 Applications for restraining orders

(1) An application for a restraining order under the Act (other than a civil forfeiture restraining order or an unexplained wealth restraining order) shall be in Form 6–6A.

(2) An application under section 36K of the Act for a civil forfeiture restraining order shall be in Form 6–6AB.

(3) An application under section 40F of the Act for an unexplained wealth restraining order shall be in Form 6–6AC.

6.07 Applications for monitoring orders

An application for a monitoring order under the Act may be in Form 6–6O.

6.08 Application without notice under the Act

(1) Except where the Act otherwise provides, an application to the Court under the Act which is made without notice to any other person shall be in writing.

(2) An application to the Court under the Act which is to be made without notice and in writing and for which a form is


4

not prescribed in this Order may be in Form 6–6A with any necessary modification.

(3) If under section 17(1), 36L(1) or 40H(1) of the Act the Court requires notice to be given that the application has been made, the notice shall be in Form 6–6B.

6.09 Form of certain applications and notices of application

(1) An application under section 20 of the Act for an exclusion order, under section 36U of the Act for a section 36V exclusion order or under section 40R of the Act for a section 40S exclusion order shall be in Form 6–6C.

(2) An application under section 26, 36W or 40W of the Act for further orders in relation to property the subject of a restraining order, a civil forfeiture restraining order or an unexplained wealth restraining order, as the case may be, shall be in Form 6–6D.

(3) An application under section 32 of the Act for a forfeiture order shall be in Form 6–6E.

(4) An application under section 37 of the Act for a civil forfeiture order shall be in Form 6–6F.

(5) An application under section 40A of the Act for a section 40B exclusion order or under section 40ZC of the Act for a section 40ZD exclusion order shall be in Form 6–6FA.


5

(6) An application under section 45 or 45B of the Act for relief from undue hardship shall be in Form 6–6G.

(7) An application under section 45A of the Act for relief from automatic forfeiture of property of a serious drug offender shall be in Form 6–6GA.

(8) An application under section 49, 51 or 53 of the Act for an exclusion order shall be in Form 6–6H.

(9) An application under section 58 of the Act for a pecuniary penalty order shall be in Form 6–6J.

(10) Any other application to be made to the Court under the Act may be in Form 6–6L with any necessary modification.

(11) Where notice of the hearing of an application is required to be given then, unless the Act otherwise provides or the Court otherwise orders, such notice shall be given not less than five days before the day fixed for the hearing of the application.

6.10 Filing and directions

(1) Unless the Act otherwise provides or the Court otherwise orders, in a proceeding under the Act the following shall be filed in the Court—

(a) each application;

(b) each affidavit;


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(c) a copy of each notice given.

(2) At the time when an application or notice of an application is filed, the Prothonotary shall insert the time and place at which the application is to be heard and such time and place shall be included in any copy which is served.

(3) After an application or notice of an application has been filed, a Judge of the Court may give directions for the hearing of the application, including directions for the production to the Court of any transcript of proceedings relating to a conviction relied upon in the application.

6.11 Notice by person contesting an application

(1) A person who is required by the Act to give notice of the grounds on which an application is to be contested shall give notice to the applicant in Form 6–6LA.

(2) Any other person who intends to contest an application made under the Act shall give notice in Form 6–6LA to the applicant of the grounds on which the application is to be contested.

(3) The notice shall be served on the applicant not later than two days before the date fixed for the hearing or the resumed hearing of the application, as the case requires.

6.12 Evidence

(1) Unless the Court otherwise directs, evidence in chief on the hearing of all applications under the Act shall be by affidavit.

(2) A copy of an affidavit on which the applicant intends to rely shall be served on any person


7

to whom notice of the application has been given.

(3) A copy of an affidavit on which a person other than the applicant intends to rely shall be served on the applicant and any other person, if known, to whom notice of the application has been given.

6.13 Notice of order or declaration

(1) Subject to paragraph (2) and Rule 6.14, where notice is required to be given to any person of an order made by the Court under the Act, notice shall be given by serving a copy of the order on that person in accordance with section 137 of the Act.

(2) In the case of a restraining order made under Part 2 of the Act for the purpose of automatic forfeiture and in the case of an unexplained wealth restraining order made under Part 4A of the Act for the purpose of unexplained wealth forfeiture, a copy of the order shall be accompanied by a notice in Form 6–6M.

(3) If a restraining order, civil forfeiture restraining order, unexplained wealth restraining order, forfeiture order or civil forfeiture order under the Act is made by the Court upon the application of any person, notice of the order shall be given by the applicant to—

(a) each person who the applicant has reason to believe has an interest in any of the property which is subject to the order, unless that person was present when the order was made or was given


8

notice of the making of the application for the order; and

(b) such other person as the Court directs.

(4) If a declaration is made by the Court—

(a) under section 35(3) of the Act, of the date on which a person (in respect of whom a restraining order has been made) is deemed to have been convicted of a Schedule 2 offence; or

(b) under section 36 of the Act, that property has been forfeited—

notice of the order containing the declaration shall be given by the applicant to—

(c) each person who the applicant has reason to believe had an interest in any of the property which is forfeited immediately before the property was forfeited, unless that person was present when the declaration was made or was given notice of the application for the declaration; and

(d) such other person as the Court directs.

6.14 Notice of discharge

(1) The following notices under the Act shall be in Form 6–6N—

(a) notice under section 46(2) of discharge of a forfeiture order;

(b) notice under section 47(2) of discharge of automatic forfeiture;

(c) notice under section 48(2) of discharge of a civil forfeiture order;


9

(d) notice under section 48A(2) of discharge of unexplained wealth forfeiture.

(2) If a pecuniary penalty order registered under the Service and Execution of Process Act 1992 of the Commonwealth is discharged, notice of discharge shall be given by the person who procured the registration of the order.

(3) Notice of discharge under paragraph (2) shall be given by sending a sealed copy of the order of discharge to the Prothonotary, Registrar or other proper officer of the court in which the order was registered.

6.15 Interstate order

(1) For the purposes of section 125(4) of the Act, registration of an interstate order shall be effected by filing a sealed copy of the order in the Court.

(2) For the purposes of section 125(5) of the Act, a facsimile copy of an interstate order or of any amendments to an interstate order shall be taken to be certified if it contains—

(a) a facsimile copy of the seal of the court which made the order; or

(b) a facsimile copy of a statement purporting to be signed by the Prothonotary, Registrar or other proper officer to the effect that the copy is a true copy of the order of the court.

6.16 Examination under section 98(2) of the Act


10

If an order is made under section 98(2) of the Act for the examination of a person before the Court, the examination may be before an Associate Judge.

PART 3—APPLICATIONS UNDER THE COMMONWEALTH ACT

6.17 Making of application to the Court under the Commonwealth Act

An application under the Commonwealth Act is taken to have been made when it is filed.

6.18 Notice and service under the Commonwealth Act

(1) Subject to the Commonwealth Act, if notice is required by or under the Commonwealth Act to be given or served it shall be in writing.

(2) A copy of an application, a copy of an affidavit and a notice given in a proceeding under the Commonwealth Act shall be served personally or in such other manner as the Court directs.

6.19 Applications for restraining orders and other applications under the Commonwealth Act

(1) An application for a restraining order under the Commonwealth Act (other than an unexplained wealth restraining order under that Act) shall be in Form 6–6P.

(2) An application for an unexplained wealth restraining order under section 20A of the Commonwealth Act shall be in Form 6–6Q.

(3) Any other application to the Court under the Commonwealth Act for which a form


11

is not prescribed in this Order may be in Form 6–6P with any necessary modification.

6.20 Applications for monitoring orders under the Commonwealth Act

An application for a monitoring order under the Commonwealth Act may be in Form 6–6R.

6.21 Filing and directions

(1) Unless the Commonwealth Act otherwise provides or the Court otherwise orders, in a proceeding under the Commonwealth Act the following shall be filed in the Court—

(a) each application;

(b) each affidavit;

(c) a copy of each notice given.

(2) At the time when an application or notice of an application is filed, the Prothonotary shall insert the time and place at which the application is to be heard and such time and place shall be included in any copy which is served.

(3) After an application or notice of an application has been filed, a Judge of the Court may give directions for the hearing of the application, including directions for the production to the Court of any transcript of proceedings relating to a conviction relied upon in the application.


12

6.22 Notice by person contesting an application under the Commonwealth Act

(1) A person who is required by the Commonwealth Act to give notice of the grounds on which an application is to be contested shall give notice to the applicant in Form 6–6S.

(2) Any other person who intends to contest an application made under the Commonwealth Act shall give notice in Form 6–6S to the applicant of the grounds on which the application is to be contested.

(3) Subject to any relevant provisions of the Commonwealth Act, the notice shall be served on the applicant not later than two days before the date fixed for the hearing of the application.

6.23 Evidence

(1) Unless the Court otherwise directs, evidence in chief on the hearing of all applications under the Commonwealth Act shall be by affidavit.

(2) A copy of an affidavit on which the applicant intends to rely shall be served on any person to whom notice of the application has been given.

(3) A copy of an affidavit on which a person other than the applicant intends to rely shall be served on the applicant and any other person, if known, to whom notice of the application has been given.

6.24 Notice of order or declaration under Commonwealth Act


13

Where notice is required to be given to any person of an order made by the Court under the Commonwealth Act, notice shall be given by serving a copy of the order on that person in accordance with the Commonwealth Act.".

7 Forms 6–6A to 6–6J substituted and newForms 6–6AB, 6–6AC, 6–6FA and 6–6GA inserted

For Forms 6–6A to 6–6J of the Principal Rules substitute—

"Rules 6.06(1) and 6.08(2) FORM 6–6A

IN THE SUPREME COURT OF VICTORIA

AT

IN THE MATTER of the *Confiscation Act 1997

and

IN THE MATTER of *an accused, XY [name in full]

and

IN THE MATTER of an Application by AB [name in full] Applicant

APPLICATION UNDER SECTION [INSERT RELEVANTPROVISION OF SECTION 16 OF CONFISCATION ACT 1997]

FOR RESTRAINING ORDER

TO: the Prothonotary of the Supreme Court of Victoria

[name of the person making the application]("the Applicant")

APPLIES under


14

* section *16(1)/*16(2) of the Confiscation Act 1997 ("the Confiscation Act") FOR A RESTRAINING ORDER in respect of property in which the said XY has an interest or which is tainted property within the meaning of the Confiscation Act.

* section 16(2A) of the Confiscation Act 1997 FOR A SERIOUS DRUG OFFENCE RESTRAINING ORDER in respect of property where—

* a police officer or a person authorised by or under an Act to prosecute the relevant type of offence believes that—

(i) within the next 48 hours a person will be charged with a serious drug offence; and

(ii) that person has an interest in the property.

* a person has been charged with a serious drug offence and that person has an interest in the property.

* a person has been convicted of a serious drug offence and that person has an interest in the property.

THE ADDRESS FOR SERVICE of the Applicant is: [insert address]

PARTICULARS OF APPLICATION

1. THE JURISDICTION to make the order(s) sought arises because—

* XY has been charged with

* within the next 48 hours, XY will be charged with

* XY has been convicted of

* a police officer or an authorised person believes that within the next 48 hours XY will be charged with

[state offence and, if relevant, details of conviction]

and that offence is—

* a Schedule 1 offence within the meaning of the Confiscation Act

* a Schedule 2 offence within the meaning of the Confiscation Act

* a serious drug offence within the meaning of the Confiscation Act.

2. THE APPLICANT is—

* the Director of Public Prosecutions

* a prescribed person

* a person belonging to a prescribed class of persons, namely [identify class].


15

3. THE APPLICATION IS IN RESPECT OF the following property or interest in property—

[describe the property or interest in detail]

4. THE GROUNDS on which this application is made are as follows—

[set out in detail the grounds of the application]

5. THE PURPOSE OF THE ORDER SOUGHT is so that the property or interest in property the subject of the order will be available—

* to satisfy any forfeiture order that may be made under Division 1 of Part 3 of the Confiscation Act

* to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act

* to satisfy automatic forfeiture of property that may occur under Division 4 of Part 3 of the Confiscation Act

* to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act

* to satisfy any order for restitution or compensation that may be made under the Sentencing Act 1991.

THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application *and served with it [delete if application is made ex parte].

Date:

[Signed by Applicant]

PARTICULARS OF HEARING

This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] *at [time]/*after sentence.

[Signed by Prothonotary]

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––*Delete if not applicable

__________________

Rule 6.06(2) FORM 6–6AB



16

AT

IN THE MATTER of the Confiscation Act 1997

and

IN THE MATTER of property a *police officer/*person authorised by or under an Act to prosecute the relevant type of offence suspects on reasonable grounds is tainted property in relation to a Schedule 2 offence

and


APPLICATION UNDER SECTION 36K FOR CIVIL FORFEITURE RESTRAINING ORDER



APPLIES under section 36K of the Confiscation Act 1997 ("the Confiscation Act") FOR A CIVIL FORFEITURE RESTRAINING ORDER in respect of property that a police officer or a person authorised by or under an Act to prosecute the relevant type of offence suspects on reasonable grounds is tainted property.



1. THE JURISDICTION to make the order(s) sought arises because a police officer or a person authorised by or under an Act to prosecute the relevant type of offence suspects on reasonable grounds that the property in respect of which the application is made is tainted property.



* a prescribed person

* a person belonging to a prescribed class of persons, namely [identify class]


17





5. THE PURPOSE OF THE ORDER SOUGHT is so that the property or interest in property the subject of the order will be available to satisfy any civil forfeiture order that may be made under Division 2 of Part 4 of the Confiscation Act.


Date:



This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] *at [time].



__________________

Rule 6.06(3) FORM 6–6AC


AT


and


18

IN THE MATTER of property *of a person who a police officer suspects on reasonable grounds has engaged in serious criminal conduct/*which a police officer suspects on reasonable grounds was not lawfully acquired

and


APPLICATION UNDER SECTION 40F FOR UNEXPLAINED WEALTH RESTRAINING ORDER



APPLIES under section *40F(1)/*40F(2) of the Confiscation Act 1997 ("the Confiscation Act") FOR AN UNEXPLAINED WEALTH RESTRAINING ORDER in respect of property.



1. THE JURISDICTION to make the order(s) sought arises because a police officer suspects on reasonable grounds—

* in accordance with section 40F(1) of the Confiscation Act, that—

(a) a person has engaged in serious criminal activity; and

(b) that person has an interest in the property that is the subject of the application; and

(c) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and

(d) the total value of the property is $50 000 or more; or

* in accordance with section 40F(2) of the Confiscation Act, that—

(a) the property was not lawfully acquired; and

(b) either—

(i) the property is located in Victoria; or

(ii) the person who has acquired the property is ordinarily resident in Victoria.



19


* an appropriate officer within the meaning of the Confiscation Act





5. THE PURPOSE OF THE ORDER SOUGHT is so that the property or interest in property the subject of the order will be available to satisfy any forfeiture under Division 2 of Part 4A of the Confiscation Act.


Date:



This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] at [time].



__________________

Rule 6.08(3) FORM 6–6B

[heading as in Form 6–6A]

NOTICE OF APPLICATION MADE UNDER *SECTION 16/*SECTION 36K/*SECTION 40F


20

TO: [name and address of person(s) to whom this notice is to be given]

TAKE NOTICE THAT APPLICATION HAS BEEN MADE to the Supreme Court of Victoria under *section 16 of the Confiscation Act 1997 for a restraining order/*section 36K of the Confiscation Act 1997 for a civil forfeiture restraining order/*section 40F of the Confiscation Act 1997 for an unexplained wealth restraining order in respect of certain property or an interest in certain property belonging to [name in full].

A copy of the application is attached.

THIS NOTICE is given to you as a person who may have an interest in the property which is the subject of the application. This Notice is given by the Applicant pursuant to an order of the Supreme Court made in this proceeding on [date].

THE HEARING of this application will be resumed by the Judge in the Supreme Court, 210 William Street, Melbourne, on [date] at *at [time]/*after sentence.


AS A PERSON TO WHOM THIS NOTICE IS GIVEN—

1. You are entitled to appear and to give evidence at the hearing of the application, but your absence will not prevent the Court from making the order which is being sought.

2. If you propose to contest this application, you must give the Applicant written notice of the grounds on which the application is to be contested. The notice is to be in accordance with Form 6–6LA of Chapter VI of the Rules of the Supreme Court. This notice is to be given not later than two days before the date shown above fixed for the resumed hearing of the application. Evidence in chief is to be by affidavit, and you must serve on the Applicant a copy of any affidavit(s) on which you intend to rely.

Date:[Signed by Applicant]

NOTE: If a restraining order, a civil forfeiture restraining order or an unexplained wealth restraining order is made under the Confiscation Act 1997 then in certain events the property or interest in property in respect of which the order is made may be taken by the State and any interest you have in that property may be lost.



21

__________________

Rule 6.09(1) FORM 6–6C


AT


and

IN THE MATTER of an accused, XY [name in full]

BETWEEN:

AB Applicant

and

CD Respondent

APPLICATION UNDER SECTION *20/*36U/*40R FOR EXCLUSION ORDER

TO: [name and address of the person(s) on whom this application is to be served]

("the Respondent(s)")

[name of the person making the application] ("the Applicant") APPLIES under

*section 20 of the Confiscation Act 1997 ("the Confiscation Act") for an order under section *21/*22/*22A of the Act excluding from a restraining order a certain interest or interests in property.

*section 36U of the Confiscation Act for an order under section 36V of the Act excluding from a civil forfeiture restraining order a certain interest or interests in property.

*section 40R of the Confiscation Act for an order under section 40S of the Act excluding from an unexplained wealth restraining order a certain interest or interests in property.

THE ADDRESS FOR SERVICE of the Applicant is [insert address]



22

1. THE JURISDICTION to make the order sought arises because—

* a restraining order has been made under section 18 of the Confiscation Act

* a civil forfeiture restraining order has been made under section 36M of the Confiscation Act in relation to the property of [name in full]

* an unexplained wealth restraining order has been made under section 40I of the Confiscation Act in relation to the property of [name in full]

on the application of [name of applicant for restraining order, civil forfeiture restraining order or unexplained wealth restraining order, as the case requires].

2. THE APPLICANT is a person claiming the following interest or interests in property which is otherwise subject to the *restraining order/*civil forfeiture restraining order/*unexplained wealth restraining order: [describe in detail the interest or interests in property in respect of which exclusion is sought].

3. THE RESPONDENT(S) to this application is/are—

* a person who the Applicant has reason to believe has an interest in property in respect of which exclusion is sought

* the applicant for the abovementioned *restraining order/*civil forfeiture restraining order/*unexplained wealth restraining order.


[set out in detail the grounds of the application].

*5. [In the case of an application under section 20 of the Confiscation Act] PURSUANT TO section 20(2A) of the Confiscation Act, included with this application is documentary evidence of a transaction or transactions relating to the transfer of property alleged by the Applicant to have occurred that would support the application, namely [list the documentary evidence included with the application].


23


Date:



This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] at [time or occasion].


NOTES FOR THE PERSON(S) ON WHOM THIS APPLICATION IS SERVED

1. You are entitled to appear and to give evidence at the hearing of the application, but your absence on that occasion will not prevent the Court from making an order.

2. If you propose to contest this application, you must give the Applicant written notice of the grounds on which the application is to be contested. The notice is to be in accordance with Form 6–6LA of Chapter VI of the Rules of the Supreme Court. This notice is to be given not later than two days before the date shown above fixed for the hearing of the application. Evidence in chief is to be by affidavit, and you must serve on the Applicant a copy of any affidavit(s) on which you intend to rely.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

*Delete if not applicable

__________________

Rule 6.09(2) FORM 6–6D

[heading as in Form 6–6C]

APPLICATION UNDER *SECTION 26/*SECTION 36W/*SECTION 40W FOR FURTHER ORDERS



24


[name of the person making the application]

("the Applicant")

APPLIES under *section 26/*section 36W/*section 40W of the Confiscation Act 1997 FOR THE FOLLOWING FURTHER ORDER(S) in relation to property to which *a restraining order/*a civil forfeiture restraining order/*an unexplained wealth restraining order relates—

[set out in detail the order(s) sought]




* application has been made to the Supreme Court of Victoria for *a restraining order/*a civil forfeiture restraining order/*an unexplained wealth restraining order in relation to certain property.

* the Supreme Court of Victoria made *a restraining order/*a civil forfeiture restraining order/*an unexplained wealth restraining order on [date] in relation to certain property.

2. THE APPLICANT is: [describe the standing of the Applicant to make the application, e.g. the applicant for the *restraining order/*civil forfeiture restraining order/*unexplained wealth restraining order OR a person who claims an interest in property to which the *restraining order/*civil forfeiture restraining order/*unexplained wealth restraining order relates OR the person to whose property the *restraining order/*civil forfeiture restraining order/*unexplained wealth restraining order relates OR otherwise as specified in section 26(2), 36W(3) or 40W(3) of the Confiscation Act 1997]

3. THE APPLICATION IS IN RESPECT of the following property or interest in property—

[describe in detail the property or interest in property to which the further order(s) sought will relate]

4. THE RESPONDENT(S) to this application is a person/are persons referred to in section *26(2)(a) to (d)/*36W(3)(a) to (d)/*40W(3)(a) to (d) of the Confiscation Act 1997 who could have applied for the Order(s) which is/are sought on this application.


25



*THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application *and served with it [delete if application is made ex parte].

Date:








–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

*Delete if not applicable.

__________________

Rule 6.09(3) FORM 6–6E


APPLICATION UNDER SECTION 32 FOR FORFEITURE ORDER




26


("the Applicant")

APPLIES under section 32(1) of the Confiscation Act 1997 ("the Confiscation Act") FOR A FORFEITURE ORDER with respect to the following property: [describe in detail the property in respect of which the forfeiture order is sought]



1. THE JURISDICTION to make the order sought arises because (or when) XY has been convicted in the [name] Court on [date] of the offence of [describe the offence] which is a Schedule 1 offence within the meaning of the Confiscation Act.



* an appropriate officer within the meaning of the Confiscation Act


* the person in respect of whose property the order is sought

* a person who the Applicant has reason to believe has an interest in the property

* a person to whom the Court has required that notice be given



5. IF the Respondent has already been convicted of the offence described above, A TIME LIMIT APPLIES under section 32(2) of the Confiscation Act and this application will be made—

* before the end of the relevant period (as defined by the Confiscation Act) in relation to the conviction

* after the end of the relevant period (as so defined), but the Applicant will seek the leave of the Court to make this application out of time

6. HAS ANY PREVIOUS APPLICATION been made under section 32(1) of the Confiscation Act in relation to the same conviction?

* No such application has been made


27

* Such an application was made on [date] but that application has not been finally determined

* Such an application was made on [date] and has been finally determined, but the Applicant will seek the leave of the Court to make this further application


Date:








–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________

Rule 6.09(4) FORM 6–6F



28

APPLICATION UNDER SECTION 37 FOR CIVIL FORFEITURE ORDER




("the Applicant")

APPLIES under section 37(1) of the Confiscation Act 1997 ("the Confiscation Act") FOR A CIVIL FORFEITURE ORDER with respect to the following property: [describe in detail the property in respect of which the forfeiture order is sought]



1. THE JURISDICTION to make the order(s) sought arises because a civil forfeiture restraining order under section 36M of the Confiscation Act was made by the [name] Court on [date] in relation to property.



* a prescribed person within the meaning of section 37

* a person belonging to a prescribed class of persons, namely: [identify class]


* the person in respect of whose property the order is sought

* a person who the Applicant has reason to believe has an interest in the property

* the applicant for the civil forfeiture restraining order which is in force

* a person to whom the Court has required that notice be given



5. HAS ANY PREVIOUS APPLICATION been made under section 37(1) of the Confiscation Act in relation to the same Schedule 2 offence?

* No such application has been made


29

* Such an application was made on [date] but that application has not been finally determined

* Such an application was made on [date] and has been finally determined, but the Applicant will seek the leave of the Court to make this further application


Date:








–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________

Rule 6.09(5) FORM 6–6FA



30

APPLICATION UNDER SECTION *40A/*40ZC OF THE CONFISCATION ACT 1997FOR *SECTION 40B EXCLUSION ORDER/*SECTION 40ZD

EXCLUSION ORDER



[name and address of the person making the application]

("the Applicant")

APPLIES under section *40A/*40ZC of the Confiscation Act 1997 ("the Confiscation Act") FOR THE EXCLUSION FROM FORFEITURE of the following interest in property: [describe in detail the interest in property which it is sought to have excluded from forfeiture]



1. THE JURISDICTION to make the order(s) sought arises because certain property—

* [in the case of an application under section 40A] has been forfeited under section 38 of the Confiscation Act.

* [in the case of an application under section 40ZC] has been forfeited under section 40ZA of the Confiscation Act.


* [in the case of an application under section 40A] a person who claims to have had an interest in the property immediately before it was forfeited.

* [in the case of an application under section 40ZC] a person who claims to have had an interest in the property immediately before it was forfeited and who has leave of the Court under section 40ZC to apply.

3. THE RESPONDENT(S) to this application *is/*are—

* the applicant for the *civil forfeiture order/*unexplained wealth restraining order.


31

* a person who the Applicant has reason to believe had an interest in the property immediately before it was forfeited.

* a person prescribed for the purposes of section 44(1) of the Act.




Date:







2. If you propose to contest this application, you must give the Applicant for the exclusion order written notice of the grounds on which the application is to be contested. The notice is to be in accordance with Form 6–6LA of Chapter VI of the Rules of the Supreme Court. This notice is to be given not later than two days before the date shown above fixed for the hearing of the application. Evidence in chief is to be by affidavit, and you must serve on the Applicant a copy of any affidavit(s) on which you intend to rely.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________

Rule 6.09(6) FORM 6–6G



32

APPLICATION UNDER SECTION *45/*45B FOR RELIEF FROM UNDUE HARDSHIP



[name and address of the person making the application]("the Applicant")

APPLIES under section *45/*45B of the Confiscation Act 1997 ("the Confiscation Act") FOR THE FOLLOWING ORDERS—

* [in the case of an application under section 45] an order that an amount of [specify sum] be paid to [name of payee] out of the property forfeited in order to prevent undue hardship to [name of person for whose benefit this application is being made] likely to be caused by a forfeiture order or a civil forfeiture order.

* [in the case of an application under section 45B] an order that an amount of [specify sum] be paid to [name of payee] out of the forfeited property in order to prevent undue hardship to [name of person for whose benefit this application is being made] caused by the unexplained wealth forfeiture.

* [if the person to benefit is under 18 years of age] such ancillary orders as will ensure that the amount so paid is properly applied.




* [in the case of an application under section 45]—

* property has been forfeited under a forfeiture order or a civil forfeiture order made in respect of XY on [date] on the application of [name].

* application has been made by [name] for a forfeiture order or a civil forfeiture order in respect of XY.

* [in the case of an application under section 45B] unexplained wealth forfeiture has occurred under section 40ZA.

2. THE APPLICANT *is/*is not a person under the age of 18 years.

3. THE RESPONDENT to this application—

(a) [in the case of an application under section 45] *was/*is the applicant for the forfeiture order/*civil forfeiture order *made/*sought in respect of XY;


33

(b) [in the case of an application under section 45B] *was/*is the applicant for the unexplained wealth restraining order *made/*sought in respect of XY.


[set out in detail the grounds of the application, including the facts relied upon to establish that the payment sought is reasonably necessary to prevent undue hardship to the person for whose benefit the application is made]


Date:








–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


__________________

Rule 6.09(7) FORM 6–6GA



34

APPLICATION UNDER SECTION 45A FOR RELIEF FROM AUTOMATIC FORFEITURE OF PROPERTY

OF SERIOUS DRUG OFFENDER



[name and address of the person making the application]("the Applicant")

APPLIES under section 45A of the Confiscation Act 1997 ("the Confiscation Act") FOR an order that an amount referred to in section 45A(4) of the Act [specify amount] be paid to [name of payee, being a dependant of a serious drug offender] out of the proceeds of the sale of the forfeited residence for the purpose of securing new accommodation.



1. THE JURISDICTION to make the order(s) sought arises because the residence of XY (a serious drug offender) has been forfeited under section 36GA of the Confiscation Act.

2. THE APPLICANT *is/*is not a person under the age of 18 years and is a dependant of XY.

3. THE RESPONDENT to this application is *the Minister/*a person prescribed for the purposes of section 44(1) of the Act.




Date:







35



–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________

Rule 6.09(8) FORM 6–6H


APPLICATION UNDER PART 6 OF THE CONFISCATION ACT 1997 FOR EXCLUSION ORDER



[name and address of the person making the application]

("the Applicant")

APPLIES under section *49/*51/*53 of the Confiscation Act 1997 ("the Confiscation Act") FOR THE EXCLUSION FROM FORFEITURE of the following interest in property: [describe in detail the interest in property which it is sought to have excluded from forfeiture]




36

1. THE JURISDICTION to make the order(s) sought arises because certain property—

* has been forfeited, or is sought to be forfeited, under a forfeiture order

* has been forfeited under section 35 of the Confiscation Act

* has been forfeited under section 36GA of the Confiscation Act.


*(a) [in the case of an application under section 49] a person (other than the accused) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited.

*(b) [in the case of an application under section 51 or 53] a person (other than the accused) who claims to have had an interest in the property immediately before it was forfeited.


* the applicant for the forfeiture order

* [in the case of an application under section 51 or 53] the Director of Public Prosecutions

* a person who the Applicant has reason to believe has an interest in the property or had an interest in the property immediately before it was forfeited

* a person prescribed for the purposes of section 44(1).




Date:







37



–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________

Rule 6.09(9) FORM 6–6J


APPLICATION UNDER SECTION 58 FOR PECUNIARY PENALTY ORDER

TO: [full name and address of XY]("the Respondent")


("the Applicant")

APPLIES FOR A PECUNIARY PENALTY ORDER under section 58 of the Confiscation Act 1997 ("the Confiscation Act").




38

1. THE JURISDICTION to make the order(s) sought arises because XY has been convicted of the offence of [describe the offence] which, within the meaning of the Confiscation Act, is—

* a Schedule 2 offence

* a Schedule 1 offence other than a Schedule 2 offence

2. THE APPLICANT is the Director of Public Prosecutions.

3. THE RESPONDENT to this application is the person who has been convicted of the offence described above.



*5. THE APPLICANT will seek to have section 68 of the Confiscation Act applied in the assessment of the value of the benefits derived.


Date:









39

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


_______________".

8 Form 6–6K revoked

Form 6–6K of the Principal Rules is revoked.

9 Forms 6–6L to 6–6O substituted and newForms 6–6P to 6–6S inserted

For Forms 6–6L to 6–6O of the Principal Rules substitute—

"Rule 6.09(10) FORM 6–6L


APPLICATION TO BE MADE UNDER SECTION [INSERT NUMBER] OF THE CONFISCATION ACT 1997




("the Applicant")


40

APPLIES under section [number] of the Confiscation Act 1997 ("the Confiscation Act") FOR THE FOLLOWING ORDER(S)—

[set out in detail the order(s) sought]



1. THE JURISDICTION to make the order(s) sought arises because [set out circumstances giving rise to the jurisdiction].

2. THE APPLICANT is [describe the standing of the Applicant to make the application].

3. *THE APPLICATION IS IN RESPECT OF the following property or interest in property—[describe the property or interest in detail].


[identify the respondent(s) and state in what capacity each is named as respondent(s)].


[set out in detail the grounds of the application].


Date:[Signed by Applicant]






2. If you propose to contest this application, you must give the Applicant written notice of the grounds on which the application is to be


41

contested. The notice is to be in accordance with Form 6–6LA of Chapter VI of the Rules of the Supreme Court. This notice is to be given not later than two days before the date shown above fixed for the hearing of the application. Evidence in chief is to be by affidavit, and you must serve on the Applicant a copy of any affidavit(s) on which you intend to rely.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


__________________

Rule 6.11 FORM 6–6LA

[Heading as Form 6–6C]

NOTICE OF CONTEST OF APPLICATION

TO: [full name and address of applicant]

TAKE NOTICE THAT [full name of the person intending to contest the application] INTENDS TO CONTEST the application in this proceeding.

THE GROUNDS on which this application is to be contested are as follows—

[set out in detail the grounds on which the application is to be contested]

1.

2.

3.

THE ADDRESS FOR SERVICE of the person intending to contest the application is: [insert address]

[If the person is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person] is:

Date:

[signed]

__________________

Rule 6.13(2) FORM 6–6M


42

[heading as in Form 6–6A]

IMPORTANT NOTICE

TO: [name and address of person being served with copy of restraining order]

Enclosed is a copy of *a restraining order/*a serious drug offence restraining order/*an unexplained wealth restraining order made by the Supreme Court of Victoria on [date] in relation to the property of XY.

The restraining order was made under the Confiscation Act 1997. The Act provides for the automatic forfeiture of property that is the subject of the restraining order unless an application is made to the Court for an exclusion order.

[For a restraining order that is not an unexplained wealth restraining order or a serious drug offence restraining order]

*An application may be made under section 20 of the Act for an exclusion order under section 22 of the Act. Section 20 provides that the application must be made within 30 days after the service of this notice. That period may be extended by a court if the property has not already been forfeited.

[For a serious drug offence restraining order]

*An application may be made under section 20 of the Act for an exclusion order under section 22A of the Act. Section 20 provides that the application must be made within 30 days after the service of this notice. That period may be extended by a court if the property has not already been forfeited.

[For an unexplained wealth restraining order]

*An application may be made under section 40R of the Act for a section 40S exclusion order. Section 40R provides that the application must be made within 90 days after service of this notice. That period may be extended by a court if the property has not already been forfeited.

The Act also provides for applications to be made, in certain circumstances and within certain limited periods, for exclusion, discharge or other relief in respect of property after the property has been forfeited or has been made the subject of an application for forfeiture.

The circumstances in which the Court may make an exclusion order excluding property (including any interest in property) from the operation of a restraining order are set out in the Act.


43

IF YOU WISH TO MAKE AN APPLICATION FOR AN EXCLUSION ORDER, YOU MUST ACT PROMPTLY. YOU ARE STRONGLY ADVISED TO SEEK LEGAL ADVICE.

Date:

[Signed]


_______________

Rule 6.14(1) FORM 6–6N

IN THE SUPREME COURT OF VICTORIA Proceeding No.

AT

IN THE MATTER OF THE Confiscation Act 1997

and

IN THE MATTER of an accused, XY [name in full]

NOTICE OF DISCHARGE OF FORFEITURE

TO: [name and address of person(s) to whom this notice is to be given]

TAKE NOTICE that—

* a forfeiture order which was made by the Supreme Court of Victoria on [date] under Division 1 of Part 3 of the Confiscation Act 1997 has been discharged under section 46 of the Act

* the automatic forfeiture of property under Division 2 or Division 4 of Part 3 of the Confiscation Act 1997 has been discharged under section 47 of the Act

* a civil forfeiture order made by the Supreme Court of Victoria on [date] under Part 4 of the Confiscation Act 1997 has been discharged under section 48 of the Act

* the forfeiture under section 40ZA of the Confiscation Act 1997 of property the subject of an unexplained wealth restraining order has been discharged under section 48A of the Act

otherwise than by payment in accordance with section 56 or 57 of the Act.

THIS NOTICE is given by—


44

* [in the case of a forfeiture order or a civil forfeiture order,] the person on whose application the order was made

* [in the case of automatic forfeiture,] the Director of Public Prosecutions

THIS NOTICE is given to you as—

* a person who the person giving this notice has reason to believe may have had an interest in the property immediately before it was forfeited

* a person to whom notice of the application for the civil forfeiture order was given under Part 4 of the Act

* a person to whom, or as one within a class of persons to whom, the [name] Court has required that notice be given

If you claim to have had an interest in the property immediately before it was forfeited, you may make an application to the Minister under section 55 of the Act for the return of the property or its value.

Date:

[Signed]

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––


__________________

Rule 6.07 FORM 6–6O


AT

IN THE MATTER of the *Confiscation Act 1997

and


APPLICATION UNDER SECTION 115 OF THE CONFISCATION ACT 1997 FOR MONITORING ORDER



APPLIES under section 115 of the Confiscation Act 1997 ("the Confiscation Act") FOR A MONITORING ORDER directing a


45

financial institution to give to [insert details of law enforcement agency] information in respect of transactions conducted through an account held by [specify details of account].




* a police officer; or

* the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011.

2. THE APPLICATION IS IN RESPECT OF the following account—

[insert relevant details]



* THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application.

Date:



This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] at *at [time]/*after sentence.



__________________

Rules 6.19(1) and (3) FORM 6–6P


AT

IN THE MATTER of the Proceeds of Crime Act 2002 of the Commonwealth

and

IN THE MATTER of *an offender or alleged offender, XY [name in full]


46

*a suspect, CD [name in full]

*the property [insert details]

and


APPLICATION UNDER SECTION [INSERT RELEVANT SECTION OF PROCEEDS OF CRIME ACT 2002 OF THE

COMMONWEALTH] FOR RESTRAINING ORDER



APPLIES under section *17/*18/*19/*20 of the Proceeds of Crime Act 2002 of the Commonwealth ("the Commonwealth Act") FOR A RESTRAINING ORDER in respect of property which may be the subject of a restraining order under that Act [insert relevant details].




* XY has been charged with

* it is proposed that XY will be charged with

* XY has been convicted of an indictable offence within the meaning of the Commonwealth Act

[insert relevant details].

* there are reasonable grounds to suspect that XY has committed a serious offence within the meaning of the Commonwealth Act [insert relevant details].

* there are reasonable grounds to suspect that certain property is the proceeds of:

* a terrorism offence

* another indictable offence

* a foreign indictable offence


47

* an indictable offence of Commonwealth concern

within the meaning of the Commonwealth Act [insert relevant details].

* there are reasonable grounds to suspect that the property is an instrument of a serious offence within the meaning of the Commonwealth Act [insert relevant details].

* there are reasonable grounds to suspect that XY has committed *an indictable offence/*a foreign indictable offence and that XY has derived literary proceeds in relation to the offence [insert relevant details].

2. THE APPLICANT is

* the Director of Public Prosecutions within the meaning of the Commonwealth Act.

* the Commissioner of the Australian Federal Police.






Date:





__________________

Rule 6.19(2) FORM 6–6Q


48


AT


and

IN THE MATTER of the property [insert details]

and


APPLICATION UNDER SECTION 20A OF THE PROCEEDS OF CRIME ACT 2002 OF THE

COMMONWEALTH FOR AN UNEXPLAINED WEALTH RESTRAINING ORDER



APPLIES under 20A of the Proceeds of Crime Act 2002 of the Commonwealth ("the Commonwealth Act") FOR AN UNEXPLAINED WEALTH RESTRAINING ORDER in respect of property which may be the subject of an unexplained wealth restraining order under that Act [insert relevant details].



1. THE JURISDICTION to make the order(s) sought arises because:

there are reasonable grounds to suspect that XY's total wealth within the meaning of the Commonwealth Act exceeds the value of XY's wealth that was lawfully acquired; and

there are reasonable grounds to suspect *the following/*both of the following:

* that XY has committed an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect within the meaning of the Commonwealth Act [insert relevant details];

* that the whole or any part of XY's wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect within the meaning of the Commonwealth Act [insert relevant details].


49

2. THE APPLICANT is:

* the Director of Public Prosecutions within the meaning of the Commonwealth Act.

* the Commissioner of the Australian Federal Police.






Date:




[Signed by Prothonotary]*Delete if not applicable

__________________

Rule 6.20 FORM 6–6R


AT


and



50

APPLICATION UNDER SECTION 219 OF THE PROCEEDS OF CRIME ACT 2002 OF THE COMMONWEALTH

FOR MONITORING ORDER



51


APPLIES under section 219 of the Proceeds of Crime Act 2002 of the Commonwealth ("the Commonwealth Act") FOR A MONITORING ORDER directing a financial institution to give to [insert details of enforcement agency] information in respect of transactions conducted during a particular period through an account held by [specify details of account].



1. THE APPLICANT is an authorised officer of an enforcement agency within the meaning of the Commonwealth Act.

2. THE APPLICATION IS IN RESPECT OF the following *account/*stored value card [insert relevant details].



* THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application.

Date:



This application will be heard by a Judge in the Supreme Court, 210 William Street, Melbourne, on [date] at *at [time]/*after sentence.



__________________

Rule 6.22 FORM 6–6S

[heading as Form 6–6P]

NOTICE OF CONTEST OF APPLICATION UNDER PROCEEDS OF CRIME ACT 2002 OF THE COMMONWEALTH

TO: [full name and address of applicant]


52

TAKE NOTICE THAT [full name of the person intending to contest the application] INTENDS TO CONTEST the application in this proceeding.

THE GROUNDS on which this application is to be contested are as follows—

[set out in detail the grounds on which the application is to be contested]

1.

2.

3.

THE ADDRESS FOR SERVICE of the person intending to contest the application is: [insert address]

[If the person is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person] is:

Date:

[signed]

__________________".

Dated: 24 November 2016

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

SIMON P. WHELAN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

EMILIOS KYROU, J.A.

ANNE FERGUSON, J.A.

S. G. E. McLEISH, J.A.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

KIM HARGRAVE, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

LEX LASRY, J.


53

JAMES JUDD, J.

PETER VICKERY, J.

KARIN EMERTON, J.

CLYDE CROFT, J.

M. L. SIFRIS, J.

PETER ALMOND, J.

JOHN R. DIXON, J.

KATE McMILLAN, J.

GREG GARDE, J.

G. J. DIGBY, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

M. J. CROUCHER, J.

CHRISTOPHER W. BEALE, J.

MICHAEL McDONALD, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

═══════════════


54

Endnotes

Endnotes


55

1 Rule 4: S.R. No. 12/2008. Reprint No. 2 as at 26 March 2015. Reprinted to S.R. No. 207/2014. Subsequently amended by S.R. Nos 39/2015, 40/2015, 143/2015 and 105/2016.

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supreme court (chapter vi confiscation …file/16-141sr.docx · web viewsection 16(1)/*16(2) of...