Under ss 29(4) and 317(1) of the Proceeds of Crime Act 2002 (Cth), an applicant seeking to exclude property from a restraining order bears the onus of proving that the property is not under the effective control of the suspect. Section 29(4) is a condition precedent to the exercise of the exclusion power, not an exception to be proved by the DPP. 'Effective control' means control in fact — the practical capacity to control the possession, use or disposition of the property — and does not require the suspect to have the capacity to take the benefits of the property for himself. 'Property' in s 338 refers primarily to the thing itself, not merely to a legal relationship with the thing.
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