This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

What is seizure of property?

Goods, including motor vehicles may be seized, or taken and held by police when they want to be able to use the evidence in court or to stop goods being used to break a law or when the goods are illegal or dangerous. The law about how police must treat items that have been seized during a search depends on:

  • which law gives police power to seize the goods
  • what instructions are contained in the search warrant
  • whether any court orders have been made about the items
  • what type of goods have been seized and
  • how important their evidentiary value is.

Power to seize goods

Police have no general power to seize goods just to keep them as evidence unless they are making an arrest for an indictable offence. When making an arrest, the police may seize all documents and goods they find either on the person or in the person's control. They have to reasonably believe that the items are evidence to prove that the crime has been committed.

In other situations the police may only seize goods if they have the power to do this under a particular law.

Time goods can be held varies

Some legislation states a maximum time that goods can be held, other legislation allows police to permanently confiscate or destroy goods.

Generally however, property needed for evidence of an offence that is lawfully seized under warrant may be held until after the criminal trial (and any appeal period has passed).

Police must return the property to the owner immediately if they no longer believe that the item will be useful as court evidence.

If a person wants their goods returned, they may take out a civil action in court for detinue, asking for an order that their property be returned. The court can also make a decision about who is the lawful owner where 2 or more people are claiming ownership of a particular item.

More information

Legislation

Crimes Act 1958 (Vic)

  • Part 3, Div. 1 Subdiv. 31—search warrants for and seizure of things
    • s. 465A—notice that seized thing is being held for purposes of Confiscation Act 1997 (Vic)

See Crimes Act 1958 (Vic).

Confiscation Act 1997 (Vic)

  • s. 3—defines tainted property

See Confiscation Act 1997 (Vic).

Magistrates Court Act 1989 (Vic)

  • s. 78(6)—court may order that a thing seized under a search warrant be returned to its owner
  • s. 137A—how unsold seized property (taken by a sheriff) is to be handled

See Magistrates' Court Act 1989 (Vic).

Victoria Police Act 2013 (Vic)

  • s. 58—disputed property is possession of police

See Victoria Police Act 2013 (Vic).

Reference

Victoria Police Manual

The manual has detailed information about police policy and procedure when conducting searches. Note: These links are only available for VLA staff. Send an email if you need copies.

For links to the content about search powers see References.

Updated