Victorian Current Acts Victorian Current ActsS. 5(1) amended by Nos 57/1989 s. 3(Sch. item 48.2(a)), 25/2023 s. 7(Sch. 1 item 9.2).
(1) Where a court is satisfied that a person has failed to observe a condition of a recognisance to His Majesty the court shall declare the recognisance to be forfeited and shall order that the amount of the recognisance be paid to the proper officer of the court forthwith or within such time as the court allows and that in default of payment of that amount in accordance with the order—
(a) in the case of a principal—that he be imprisoned for the term (not exceeding two years) fixed by the order; and
S. 5(1)(b) amended by No. 57/1989 s. 3(Sch. item 48.2(b)(i)(ii)).
(b) in the case of a surety—that the amount be obtained by seizing and selling the property of the surety and in default, in whole or in part, that the surety be imprisoned for the term (not exceeding two years) fixed by the order.
S. 5(2) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(i)), 57/1989 s. 3(Sch. item 48.3(a)(b)).
(2) Every order under subsection (1) shall be in writing in the prescribed form, shall be signed by the judge or magistrate presiding and shall be delivered to the proper officer of the court.
S. 5(2A) inserted by No. 8124 s. 3, amended by No. 57/1989 s. 3(Sch. item 48.4(a)(b)).
(2A) Where a court makes an order under subsection (1) in the absence of a principal the proper officer of the court shall send by post addressed to the principal and to each of the sureties (if any) at the respective addresses shown in the recognisance a notice in writing signed by the proper officer setting forth—
(a) particulars of the order made against the principal and each of the sureties (if any); and
S. 5(2A)(b) amended by No. 57/1989 s. 3(Sch. item 48.4(c)).
(b) a statement that a warrant to imprison, a warrant of seizure and sale or a warrant to seize property (as the case requires) will issue after the expiration of twenty-eight days unless—
(i) the amount due under the order is paid;
(ii) an order is made for the payment of the amount by instalments; or
(iii) application is made under subsection (3) for rescission or variation of the order.
S. 5(2B) inserted by No. 8124 s. 3.
(2B) Where a court makes an order under subsection (1) in the absence of a principal no warrant shall issue for the recovery of moneys due under the order until after the expiration of twenty-eight days from the day the order is made.
S. 5(3) amended by No. 8124 s. 4(1).
S. 5(3)(a) amended by Nos 16/1986 s. 30, 19/1989 s. 16(Sch. item 17.1(a)(b)), 57/1989 s. 3 (Sch. item 48.5(a)(i)(ii)) (as amended by No. 34/1990 s. 5(Sch. 4 item 45)).
(3) (a) Where a recognisance has been forfeited under subsection (1) any principal or surety may at any time within twenty-eight days after the making of the order or, if the order was made in the absence of the principal or surety, within twenty-eight days after the order first comes to his notice apply to the court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount of the recognisance having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.
S. 5(3)(b) amended by No. 57/1989 s. 3(Sch. item 48.5(b)).
(b) Every application under paragraph (a) shall be in writing in the prescribed form signed by the person making the application, shall set forth the grounds of the application, and shall be lodged with the proper officer of the court a reasonable time in the circumstances before the hearing of the application.
S. 5(3)(c) amended by Nos 8124 s. 4(2), 9848 s. 18(1), 57/1989 s. 3 (Sch. item 48.5(c)), 68/2009 s. 97(Sch. item 42.1).
(c) Not less than twenty-eight days before the hearing of an application under this subsection the applicant shall serve or cause to be served personally or by post on the informant or complainant or, in the case of an indictment, the Director of Public Prosecutions a true copy of the application lodged with the proper officer of the court.
S. 5(3)(d) inserted by No. 8124 s. 4(3), amended by Nos 19/1989 s. 16(Sch. item 17.2), 57/1989 s. 3(Sch. item 48.5(d)(i)(ii)) (as amended by No. 34/1990 s. 5(Sch. 4 items 46, 47)).
(d) At any time after the lodging of an application under paragraph (a) the applicant may apply ex parte to a court for a stay of proceedings in the matter and upon any such application the court may direct the return of any warrant unexecuted or may stay the issue or execution of any such warrant pending the determination of an application under paragraph (a).
S. 5(3)(e) inserted by No. 8124 s. 4(3).
(e) The Governor in Council may make regulations prescribing forms for the purposes of this section.
S. 5(4) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(ii)), 57/1989 s. 3(Sch. item 48.6).
(4) Every warrant to imprison a principal pursuant to the provisions of paragraph (a) of subsection (1) shall be in or to the effect of the prescribed form.
S. 5(5) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(iii)), 57/1989 s. 3(Sch. item 48.7(a)–(c)).
(5) Every warrant of seizure and sale and warrant to seize property of a surety to a forfeited recognisance shall be in or to the effect of the prescribed form and every warrant to imprison a surety shall be in or to the effect of the prescribed form.
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S. 5(9A) inserted by No. 8124 s. 4(5), amended by Nos 57/1989 s. 3(Sch. item 48.8(a)(b)), 37/2014 s. 10(Sch. item 43.2(a)).
(9A) The proper officer of the court shall attach or cause to be attached to every warrant to imprison issued under this section a notice in the prescribed form addressed to the police officer executing the warrant requiring the police officer to deliver to the principal or surety before the execution of the warrant a statement in writing in the prescribed form with respect to the provisions of subsection (3) and shall allow the principal or surety, as the case may be, reasonable time and opportunity to make application thereunder should he so desire.
S. 5(10) amended by Nos 57/1989 s. 3(Sch. item 48.9), 37/2014 s. 10(Sch. item 43.2(b)).
(10) Any police officer to whom a warrant under this section is directed shall execute the warrant according to its tenor unless the amount of money specified in the warrant be sooner paid and the keeper of the gaol shall receive into his custody any person referred to in a warrant to imprison and safely keep him for the term or period on the warrant named unless the said amount be sooner paid or unless he is otherwise removed or discharged from custody by due course of law.
S. 5(11) amended by Nos 8124 s. 4(6)(a)(b), 8731 s. 173, 57/1989 s. 3 (Sch. item 48.10(a)).
(11) The provisions of the Magistrates' Court Act 1989 with respect to warrants and to the payment or part payment of moneys shall, so far as those provisions are applicable and with such modifications as are necessary, extend and apply with respect to the recovery of moneys payable under forfeited recognisances and in particular with the following modifications, namely—
(a) any reference in those provisions to a warrant shall be read and construed as if it were a reference to a warrant issued for the purposes of this section;
S. 5(11)(b) amended by No. 57/1989 s. 3(Sch. item 48.10(b)).
(b) any reference in those provisions to a fine or other sum adjudged to be paid under a conviction or order of the Magistrates' Court shall be read and construed as if it were a reference to an order made for the recovery of the moneys payable under a forfeited recognisance;
S. 5(11)(c) amended by No. 57/1989 s. 3(Sch. item 48.10(c)(i)(ii)).
(c) any reference in those provisions to the Magistrates' Court shall be read and construed as if it were a reference to the court making an order forfeiting a recognisance; and
S. 5(11)(d) amended by No. 57/1989 s. 3(Sch. item 48.10(d)).
(d) any reference in those provisions to a registrar of the magistrates' court shall be read and construed as if it included a reference to the Prothonotary or the Registrar of the County Court (as the case requires).
S. 5(12) amended by Nos 9008 s. 2(1)(Sch. item 3(a)(v)), 57/1989 s. 3(Sch. item 48.11).
(12) The officer in charge of a prison shall on receiving payment of moneys payable under a forfeited recognisance forthwith pay the amount received to the proper officer of the court.
S. 5(13) amended by No. 19/1989 s. 16(Sch. item 17.3), repealed by No. 57/1989 s. 3(Sch. item 48.12).
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S. 6
repealed by No. 7900 s. 3, new s. 6 inserted by No. 9008
s. 2(1)(Sch. item 3(b)).