Supreme Court (Chapter V1 Amendment No. 7) Rules 2005

i Supreme Court (Chapter VI Amendment No. 7) Rules 2005 S.R. No. 22/2005 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. New Order 6 2 ORDER 6—CONFISCATION OF PROPERTY AND PROCEEDS OF CRIME 2 6.01 Definitions 2 6.02 Application of this Order 2 6.03 Making of application to the Court 3 6.04 Notice and service generally 4 6.05 Applications for restraining orders and monitoring orders 4 6.06 Application without notice under the Act 4 6.07 Other applications generally under Commonwealth Act 5 6.08 Notice of application 5 6.09 Filing and directions 6 6.10 Notice of opposition to an application 7 6.11 Evidence 7 6.12 Notice of order or declaration 8 6.13 Notice of discharge 9 6.14 Interstate order 10 6. Form 6–6A substituted 10 7. Amendment of Forms 13 8. New Form 6–6O inserted 16 9. Order 8 and related Forms revoked 18 ═══════════════ ENDNOTES 20 -- 1 of 21 -- 1 STATUTORY RULES 2005 S.R. No. 22/2005 Supreme Court Act 1986 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is amend the Principal Rules to make provision in relation to the confiscation of property and the proceeds of crime as a result of— (a) changes made to the Confiscation Act 1997 by the Major Crime Legislation (Seizure of Assets) Act 2004; and (b) the enactment of the Proceeds of Crime Act 2002 of the Commonwealth. 2. Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, section 50 of the Interpretation of Legislation Act 1984 and all other enabling powers. 3. Commencement These Rules come into operation on 16 May 2005. 4. Principal Rules In these Rules, the Supreme Court (Criminal Procedure) Rules 1998 1 are called the Principal Rules. -- 2 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 2 5. New Order 6 For Order 6 of the Principal Rules substitute— 'ORDER 6—CONFISCATION OF PROPERTY AND PROCEEDS OF CRIME 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) This Order applies to a proceeding in the Court under the Confiscation Act 1997. (2) This Order applies, with any necessary modification, to a proceeding under the Commonwealth Act. (3) Unless a Judge orders or directs otherwise, or the Act, the Commonwealth Act or the Rules otherwise provide, Rules 6.03 to 6.12 apply, with any necessary modification, in relation to— (a) an application to the Court under Part 2, 3, 4, 5, 6, 8 or 13 of the Act (as the case requires); (b) an application to the Court under the Commonwealth Act. r. 5 -- 3 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 3 (4) Order 6 of the Criminal Appeals and Procedures Rules 1998 as in force immediately before the commencement of the Supreme Court (Chapter VI Amendment No. 1) Rules 1999 continues to apply to proceedings under the Crimes (Confiscation of Profits) Act 1986. (5) Order 8, as in force immediately before the commencement of the Supreme Court (Chapter VI Amendment No. 7) Rules 2005, continues to apply to any application or proceeding under the Proceeds of Crime Act 1987 of the Commonwealth— (a) made or commenced before the commencement of the Commonwealth Act; or (b) continued pursuant to the Commonwealth Act or the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 of the Commonwealth. 6.03 Making of application to the Court (1) An application under the Act to the Court is taken to be made when the application is first brought on before a Judge for hearing or for directions. (2) An application under the Commonwealth Act is taken to have been made when it is filed. r. 5 -- 4 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 4 6.04 Notice and service generally (1) Where 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 in accordance with section 137 of the Act. (2) Where notice is required by or under the Commonwealth Act to be given it shall be in writing. (3) 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. 6.05 Applications for restraining orders and monitoring orders (1) An application for a restraining order under the Act or the Commonwealth Act shall be in Form 6–6A with any necessary modification supported by an affidavit. (2) An application for a monitoring order under the Act or the Commonwealth Act may be in Form 6–6O with any necessary modification. 6.06 Application without notice under the Act (1) An application to the Court under the Act which is made without notice to any other person shall be in writing. (2) Any application to the Court under the Act which is made without notice and for which a Form is not prescribed in this Order may be in Form 6–6A with any necessary modification. (3) If under section 17(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. r. 5 -- 5 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 5 6.07 Other applications generally under Commonwealth Act An application to the Court under the Commonwealth Act for which a Form is not prescribed in this Order may be in Form 6–6A with any necessary modification. 6.08 Notice of application (1) Notice of an application to be made— (a) under section 20 of the Act for an exclusion order shall be in Form 6–6C; (b) under section 26 of the Act for further orders in relation to a restraining order shall be in Form 6–6D; (c) under section 32 of the Act for a forfeiture order shall be in Form 6–6E; (d) under section 37 of the Act for a civil forfeiture order shall be in Form 6–6F; (e) under section 45 of the Act for relief from hardship shall be in Form 6–6G; (f) under section 49, 51 or 53 of the Act for an exclusion order shall be in Form 6–6H; (g) under section 58 of the Act for a pecuniary penalty order shall be in Form 6–6J; (h) under section 63 of the Act for a pecuniary penalty order shall be in Form 6–6K. (2) Notice of any other application to be made to the Court for an order or declaration may be in Form 6–6L with any necessary modification. r. 5 -- 6 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 6 (3) Notice of an application to be made shall be given not less than five days before the day named in the notice for the hearing of the application. 6.09 Filing and directions (1) In a proceeding to which this Order applies— (a) in the case of a proceeding under the Act— (i) an application made without notice; (ii) a notice of an application or any other notice given; (iii) an affidavit to be relied on; (iv) an order made; and (b) in the case of a proceeding under the Commonwealth Act— (i) an application; (ii) an affidavit; and (iii) a copy of a notice given— shall be filed in the Court, unless the Court otherwise orders. (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. r. 5 -- 7 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 7 (3) After an application or notice of an application has been filed, a Judge 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. 6.10 Notice of opposition to an application A person who intends to oppose an application for an order or declaration under the Act or the Commonwealth Act shall give notice to the applicant of the grounds on which the application will be opposed. 6.11 Evidence (1) Evidence in support of an application for a restraining order under the Act shall be by affidavit, unless the application is brought on for hearing during or at the conclusion of the trial of the defendant. (2) Evidence in support of an application for a restraining order under the Commonwealth Act shall be by affidavit. (3) Evidence in support of an application for an exclusion order under the Act or the Commonwealth Act shall be by affidavit. (4) Subject to paragraphs (1), (2) and (3), evidence on the hearing of an application under the Act or the Commonwealth Act may be by affidavit and shall be by affidavit if the Court so directs. (5) 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. r. 5 -- 8 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 8 (6) 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. 6.12 Notice of order or declaration (1) Subject to paragraph (2) and Rule 6.13, where notice is required to be given to any person of an order made by the Court under the Act or the Commonwealth Act, notice shall be given— (a) by serving a copy of the order on that person; and (b) in the case of notice of an order under the Act, 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, a copy of the order shall be accompanied by a notice in Form 6–6M. (3) Where a restraining order, forfeiture order or order for civil forfeiture 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 notice of the making of the application for the order; and (b) such other person as the Court directs. r. 5 -- 9 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 9 (4) Where 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. 6.13 Notice of discharge (1) Notice under section 46(2), 47(2) or 48(2) of the Act of discharge of a forfeiture order, automatic forfeiture or a civil forfeiture order, as the case may be, shall be in Form 6–6N. (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. r. 5 -- 10 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 10 (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. 6.14 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. Form 6–6A substituted For Form 6–6A of the Principal Rules substitute— 'Rules 6.05(1), 6.06(2) and 6.07 FORM 6–6A IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the *Confiscation Act 1997/ *Proceeds of Crime Act 2002 of the Commonwealth and r. 6 -- 11 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 11 IN THE MATTER of *an offender or alleged offender, XY [name in full] *a suspect, CD [name in full] * the property [insert details] and IN THE MATTER of an Application by AB [name in full] Applicant APPLICATION UNDER SECTION [insert relevant section and relevant Act] FOR RESTRAINING ORDER TO: the Prothonotary of the Supreme Court of Victoria TAKE NOTICE THAT [name of the person making the application] ("the Applicant") MAKES APPLICATION under * section *16(1), *16(2)(a), *16(2)(b), *16(2)(c) or *16(2)(d) 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 *17, *18, *19 or *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]. 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 [state offence and, if relevant, details of conviction] r. 6 -- 12 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 12 and that offence is, within the meaning of the Confiscation Act— * a Schedule 1 offence * a Schedule 2 offence * in the case of an application under section 16(2)(a) of the Confiscation Act, a member of the police force suspects on reasonable grounds that property is tainted property in relation to a Schedule 2 offence. * pursuant to the Commonwealth Act [insert relevant details] 2. THE APPLICANT is— * the Director of Public Prosecutions * a prescribed person * a person belonging to a prescribed class of persons, namely [identify class] * in the case of an application under the Commonwealth Act, the Director of Public Prosecutions within the meaning of the Commonwealth Act. 3. THE APPLICATION IS IN RESPECT OF the following property— [describe the property 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: * in the case of an application under the Confiscation Act, the 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 r. 6 -- 13 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 13 * to satisfy any civil forfeiture order that may be made under Part 4 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 * in the case of an application under the Commonwealth Act, to satisfy [insert relevant details] THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application and to be served herewith. Date: [Signed by Applicant] PARTICULARS OF HEARING This application will be heard— by *the Judge in the Practice Court/*the trial Judge in the [number] Court at 210 William Street, Melbourne, on [date] *at [time]/*after sentence. [Signed by Prothonotary] –––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable _______________'. 7. Amendment of Forms (1) In the Principal Rules— (a) in Form 6–6B, for "Rule 6.05(4)" substitute "Rule 6.06(3)"; (b) in Form 6–6C, for "Rule 6.06(1)(a)" substitute "Rule 6.08(1)(a)"; (c) in Form 6–6D, for "Rule 6.06(1)(b)" substitute "Rule 6.08(1)(b)"; r. 7 -- 14 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 14 (d) in Form 6–6E— (i) for "Rule 6.06(1)(c)" substitute "Rule 6.08(1)(c)"; (ii) for "forfeiture offence" substitute "Schedule 1 offence"; (e) in Form 6–6F— (i) for "Rule 6.06(1)(d)" substitute "Rule 6.08(1)(d)"; (ii) for "civil forfeiture offence" (wherever occurring) substitute "Schedule 2 offence"; (iii) after "Restraining Order" (where first occurring) insert "under section 18(2)"; (iv) particulars 5 and 6 are revoked; (v) in Particular 7, for "7. HAS" substitute "5. HAS". (f) in Form 6–6G, for "Rule 6.06(1)(e)" substitute "Rule 6.08(1)(e)"; (g) in Form 6–6H, for "Rule 6.06(1)(f)" substitute "Rule 6.08(1)(f)". (2) For particular 2 in Form 6–6H of the Principal Rules substitute— "2. THE APPLICANT is— *(a) in the case of an application under section 49 or 51, a person (other than the defendant) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited; r. 7 -- 15 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 15 *(b) in the case of an application under section 53, a person (other than a person who is suspected to have committed the Schedule 2 offence in relation to which a restraining order was made against the property) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited.". (3) In the Principal Rules— (a) in Form 6–6J— (i) for "Rule 6.06(1)(g)" substitute "Rule 6.08(1)(g)"; (ii) for "an automatic forfeiture offence" substitute "a Schedule 2 offence"; (iii) for "a forfeiture offence other than an automatic forfeiture offence" substitute "a Schedule 1 offence other than a Schedule 2 offence"; (b) in Form 6–6K— (i) for "Rule 6.06(1)(h)" substitute "Rule 6.08(1)(h)"; (ii) for "civil forfeiture offence" (wherever occurring) substitute "Schedule 2 offence"; (c) in Form 6–6L— (i) for "Rule 6.06(2)" substitute "Rule 6.08(2)"; (ii) for "an automatic forfeiture offence" substitute "a Schedule 2 offence"; (iii) for "a civil forfeiture offence" substitute "a Schedule 2 offence"; r. 7 -- 16 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 16 (iv) in particular 1, before "OR the Supreme Court of Victoria made" insert "OR in respect of a Schedule 2 offence, a member of the police force suspects on reasonable grounds that the property of XY is tainted property in relation to that offence"; (d) in Form 6–6M— (i) for "Rule 6.10(2)" substitute "Rule 6.12(2)"; (ii) for "automatic forfeiture offence" substitute "Schedule 2 offence"; (e) in Form 6–6N, for "Rule 6.11(1)" substitute "Rule 6.13(1)". 8. New Form 6–6O inserted After Form 6–6N of the Principal Rules insert— 'Rule 6.05(2) FORM 6–6O IN THE SUPREME COURT OF VICTORIA IN THE MATTER of the *Confiscation Act 1997/ *Proceeds of Crime Act 2002 of the Commonwealth and IN THE MATTER of an Application by AB [name in full] Applicant APPLICATION UNDER SECTION [insert relevant section and relevant Act] FOR MONITORING ORDER TO: the Prothonotary of the Supreme Court of Victoria TAKE NOTICE THAT [name of the person making the application] ("the Applicant") r. 8 -- 17 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 17 MAKES APPLICATION under * section 115 of the Confiscation Act 1997 ("the Confiscation Act") FOR A MONITORING ORDER directing a 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]. * 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]. THE ADDRESS FOR SERVICE of the Applicant is: [insert address] PARTICULARS OF APPLICATION 1. THE JURISDICTION to make the order(s) sought arises because— [specify details which support the making of the application] 2. THE APPLICANT is— * in the case of an application under the Confiscation Act— * a member of the police force; or * the Director, Police Integrity under section 102A(2) of the Police Regulation Act 1958. * in the case of an application under the Commonwealth Act, an authorised officer of an enforcement agency within the meaning of the Commonwealth Act. 3. THE APPLICATION IS IN RESPECT OF the following account— [insert relevant details] 4. THE GROUNDS on which this application is made are as follows— [set out in detail the grounds of the application] r. 8 -- 18 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 18 * THE APPLICANT RELIES upon the affidavit(s) made by [name of deponent(s)] filed in support of this application and to be served herewith, in the case of an application under the Confiscation Act. Date: [Signed by Applicant] PARTICULARS OF HEARING This application will be heard— by *the Judge in the Practice Court/*the trial Judge in the [number] Court at 210 William Street, Melbourne, on [date] *at [time]/*after sentence. [Signed by Prothonotary] ––––––––––––––––––––––––––––––––––––––––––––––––– * Delete if not applicable _______________'. 9. Order 8 and related Forms revoked (1) Order 8 of the Principal Rules is revoked. (2) Forms 6–8A and 6–8B of the Principal Rules are revoked. Dated: 28 April 2005 M. L. WARREN, C.J. JOHN WINNEKE, P. W. F. ORMISTON, J.A. STEPHEN CHARLES, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. ALEX CHERNOV, J.A. G. M. EAMES, J.A. GEOFFREY NETTLE, J.A. P. D. CUMMINS, J. r. 9 -- 19 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 19 DAVID ASHLEY, J. JOHN COLDREY, J. DAVID BYRNE, J. D. L. HARPER, J. PHILIP MANDIE, J. E. W. GILLARD, J. BERNARD D. BONGIORNO, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. K. WILLIAMS, J. STUART MORRIS, J. STEPHEN KAYE, J. SIMON P. WHELAN, J. ELIZABETH HOLLINGWORTH, J. KEVIN H. BELL, J. KIM HARGRAVE, J. ═══════════════ r. 9 -- 20 of 21 -- S.R. No. 22/2005 Supreme Court (Chapter VI Amendment No. 7) Rules 2005 20 ENDNOTES 1 Rule 4: S.R. No. 33/1998. Reprint No. 2 as at 1 July 2004. Subsequently amended by S.R. No. 7/2005. Endnotes -- 21 of 21 --