Don’t get bitten by DPP v McCoid
Pursuant to s.35 of the Confiscation Act 1997 (Confiscation Act), property which is restrained for automatic forfeiture is automatically forfeited to the Minister (namely the Attorney General of Victoria) 60 days after the date of conviction of the Schedule 2 (automatic forfeiture) offence unless:
- an exclusion application has been made in respect of the property prior to the expiry of those 60 days; or
- an exclusion order has been made in respect of the property.
Critically, the date of conviction is the date on which the defendant pleads guilty to the offence: DPP v McCoid [1988] VR 982.
There is a common misconception that the conviction does not occur until the plea in mitigation is presented to the Court or the offender is sentenced by the Court.
At times, there can be a significant period between the date on which a defendant pleads guilty and the date on which the defendant is sentenced.
It is critical that practitioners are aware that the 60 day clock starts ticking from the date on which the defendant pleads guilty.
This is critical because, once automatic forfeiture has occurred, a defendant’s right to seek exclusion ceases. The position is different for third parties, who can make application for exclusion of automatically forfeited property under s.51 of the Confiscation Act.
Time of making application changed in Supreme Court
Until 1 August 2006, the time at which an application for exclusion was deemed to be made was not the time of filing of the exclusion application with the County or Supreme Court, but the time on which the application was first mentioned before the relevant Court.
As from 1 August 2006, an application for exclusion in the Supreme Court is taken to be made on the filing date of the application. But note that, for the time being, an application for exclusion in the County Court is not taken to be made until it is mentioned in Court.
It is expected that the County Court will, in due course, adopt the same procedure as the Supreme Court.
