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Seizure and return of stolen property

Information about property that may be stolen or goods that are the proceeds of crime.

Dealing with suspected proceeds of crime

Division Part 1, Division 2A in Crimes Act 1958 was added in 2004 to combat money laundering, particularly where it concerned aspects of organised crime or 'terrorism' offences.

Duty lawyers report that this provision has often been used to charge people where property is suspected to have been stolen, although this has not yet been proven—as an alternative to police charging someone with receiving stolen goods..

See John Sutton's article (below) which argues that the section should be read so that person could only be found guilty if the property found is proven to have been stolen.

Court order for restitution

Where goods have been stolen and a person has been found guilty or convicted of the offence (related to the theft), the court may make any of the following orders:

  • goods be returned to owner
  • where offender has sold, transferred or exchanged the stolen property—court may order that the offender transfer or deliver—other goods to the owner of the traded stolen goods
  • order payment of sum that is equivalent to value of goods stolen.

See s. 84—Sentencing Act 1991 (Vic).

Loss of money or goods by an innocent third party

If innocent third party purchased goods that turn out to have been stolen by the offender, the court may order an equivalent sum of money to be paid.

Application to be made to court

The innocent third party must apply to court for this to occur. This application can be made on behalf of the innocent party by Director of Public Prosecutions or the police informer (in case where offender is sentenced in Magistrates' Court).

This money owed is considered to be a judgment debt and any amount outstanding may be enforced as such.

Goods held by second-hand dealer

If person claims to be the owner of goods that are being held by a second-hand dealer or pawnbroker, they must apply to Magistrates' Court for an order for delivery of the goods.

See Uncollected goods—Pawned goods.

Applying to court

There is no need for the person claiming ownership to notify any other person about the court application. The application must contain supporting evidence about their ownership. For example, a receipt or photograph of them wearing the item.

If the court is satisfied that the person is entitled to posses the goods they may order that the pawnbroker deliver the goods to the owner/ applicant.

This order must be served on second hand dealer/ pawnbroker and takes effect 21 days after service.

See s. 24—Second-Hand Dealers and Pawnbrokers Act 1989 (Vic).

If ownership is disputed

If police possess property (not seized under warrant) and:

  • police are unsure whether a person who is claiming to be the owner of the property is actual owner, or
  • where more than one person claims to be the owner

a person who claims ownership may apply to the Magistrates' Court. The court will examine the evidence and order that goods be delivered to a particular person. Each person claiming ownership will need to be given reasonable notice of the hearing. Police must deliver the goods to person according to court orders.

See s. 33—Summary Offences Act 1966 (Vic).

More information

Legislation

Crimes Act 1958 (Vic)

  • Pt. 1 Div. 2A—money laundering
    • s. 193—defines proceeds of a crime, deals with and instruments of a crime
    • s. 194—dealing with proceeds of a crime
    • s. 195—dealing with property suspected of being proceeds of a crime

See Crimes Act 1958 (Vic).

Confiscation Act 1997 (Vic)

  • s. 14—restraining orders
  • s. 35—automatic forfeiture of restrained property on conviction of certain offences
  • s. 41—effect of forfeiture
  • s. 49—application for exclusion from forfeiture order
  • Schedule 1—offences—forfeiture on court order
  • Schedule 2—Automatic forfeiture and civil forfeiture

See Confiscation Act 1997 (Vic).

Sentencing Act 1991 (Vic)

  • s. 84—court orders for restitution

See Sentencing Act 1991 (Vic).

Second-Hand Dealers and Pawnbrokers Act 1989 (Vic)

  • s. 24—disputes about ownership of goods that are held by a pawnbroker are to be settled by Magistrates’ Court

See Second-Hand Dealers and Pawnbrokers Act 1989 (Vic).

Summary Offences Act 1966 (Vic)

  • s. 33(3)and(4)—person who claims that they have an interest in property that has been stolen may make an application to Magistrates' Court for an order

See Summary Offences Act 1966 (Vic).

Victoria Police Act 2014 (Vic)

  • s. 58—disputed property in police possession

See Victoria Police Act 2013 (Vic).

References

Department of Justice and Regulation

See Department of Justice and Regulation—Asset confiscation.

Office of Public Prosecutions

See Office of Public Prosecutions—Proceeds of Crime.

Updated