Many persons who are charged with criminal offences tend to have property items seized by police either at the time of arrest or during the execution of a search warrant. It is helpful to understand how to retrieve property once it has been seized by police or in what circumstances property may be forfeited to the State.
WHAT HAPPENS IF PROPERTY IS SEIZED?
Under section 622 of the Police Powers and Responsibilities Act 2000, if a police officer seizes property the officer must, as soon as is reasonably practicable, provide a receipt (commonly known as a ‘field property receipt’) to the person who the thing was seized from. The property receipt must describe the thing seized. If the person is not present at the time, the police officer must leave a property receipt in a noticeable place.
The only circumstances in which a police officer is not required by law to provide a property receipt is where no-one appears to be in possession of the thing, if it is abandoned or if it has no value other than as evidence, such as glass, fibres, blood or hair samples.
WHEN CAN SEIZED PROPERTY BE RETURNED?
Commonly, electronic devices such as mobile phones are seized by police either at the time of arrest or when executing a search warrant. It is not uncommon for police to retain such devices particularly where the owner of the device has been charged with an offence. For this reason, it is important to explore how long items, such as a mobile phone, can be seized for and when such items can be returned.
Generally, a police officer is required by law to return property to the owner or person who had lawful possession of it if the officer is satisfied that it is not required to be retained and that it is lawful for the person to have possession of it.
If the seized item is evidence of an offence and a police officer considers it appropriate, the police officer must take steps necessary to minimise the need to retain the item as evidence. This is achieved by either taking a photograph, arranging for a necessary test or examination of the thing (for example completing a relevant download of a mobile phone).
However, a police officer may retain a seized item for a reasonable period of time after if necessary to:
- prevent a person using the thing to cause harm to himself, herself or someone else; or
- prevent an offence or a breach of the peace happening.
HOW TO APPLY FOR RETURN OF SEIZED PROPERTY
The Police Powers and Responsibilities Act 2000 sets out two ways in which you can apply to have seized property returned.
The first option is to apply, in writing, to the commissioner of police for return of the property. This application can only be made if:
- police have held the property for at least 30 days and there is no application before a Court for return of the property; or
- where notice in writing has been provided by police to the owner of the property outlining that if an application is not made within 28 days to a court to have the property returned that the property may be forfeited to the State.
In practice, the request is usually made to the ‘property officer’ at the police station where the property is held. After considering the application, the commissioner of police may decide to either return the property or refuse to return it.
The second option is to apply to a Magistrate for an order that the property be returned. An application to a Magistrate can only be made if:
- police have held the property for at least 30 days and the property has not been returned after making an application in writing to police (as set out above); or
- where notice in writing has been provided by police to the owner of the property outlining that if an application is not made within 28 days to a Court to have the property returned that the property may be forfeited to the State.
For property to be returned, a Magistrate must be satisfied that the person making the application can lawfully possess the property and that it is appropriate that the property be returned.
A Magistrate will not order the return of property if reasonably satisfied that the property:
- may be evidence in a proceeding started in relation to the property;
- is a thing used in or for manufacturing a dangerous drug; or
- may be subject to a forfeiture proceeding.
You should seek legal advice prior to making an application to a Magistrate for return of seized property.
WHEN CAN SEIZED PROPERTY BE FORFEITED?
Where property has been seized by police and is connected or has been used in the commission of an offence, police may bring an application before a court seeking that the property be forfeited. A forfeiture order is typically made by a court where:
- the owner of the property cannot be found and reasonable inquiries have been made to locate the owner;
- the property has been used in the commission of an offence (for example a mobile phone used in connection with the supplying of a dangerous drug offence);
- it is necessary to retain the property to prevent it being used in the commission of an offence; or
- possession of the property is an offence (for example possession of a knife on a person in a public place).
Further, upon a defendant being convicted of an offence, the Court may forfeit certain items after passing their sentence. This will usually occur in relation to unlawful items such as drugs and weapons, but police may also request forfeiture of items used in connection with offences.
If you have been issued with a property receipt or wish to have seized property return to you, you should seek expert legal advice as early as possible.