The Department of Public Prosecutions (DPP) can make an order, and the court must on this application, restrain a person from disposing or dealing with specified property except in the manner prescribed in the order. For this application to succeed the court must be satisfied of one of the following:
- the person has been convicted of an offence
- the person has been charged with or proposed to be charged with a serious offence;
- the person is suspected of having committed a serious offence;
- it is suspected that the property is proceeds of or is an instrument of a serious criminal offence.
The court is obliged to make a restraining order if one of the above criteria are satisfied even though there may be no risk of the property being disposed of or otherwise dealt with.
The court proceedings are civil in nature rather than criminal in the sense that the applicant (DPP) must prove their case on the balance of probability rather than the criminal standard of proof beyond all reasonable doubt.
If a person contravenes a restraining order either knowingly or recklessly by disposing or dealing with the property in a manner not prescribed in the order then they will be guilty of an offence which carries a maximum penalty of $20,000 or imprisonment for 4 years. A person will also be guilty of an offence for disposing or dealing with property under a restraining order whether or not they knew or were reckless and they were given a notice and the particulars were recorded in which case the maximum penalty is $10,000 or imprisonment for 2 years.
If a restraining order has been issued against your property it is possible to have it excluded from the order by satisfying the court that it is neither the proceeds nor instrument of criminal activity and that it was lawfully acquired and including it in the order is contrary to public interest.
Forfeiture orders are addressed under the Criminal Assets Confiscation Act. If the DPP makes an application for such an order the Court may make a forfeiture order regarding the specified property. However, the court must be satisfied that the person has:
- been convicted of one or more serious offences and the property is proceeds from one or more of those offences; or
- the property is covered by a restraining order which has been in force for the last 6 months and the property is proceeds of one or more serious offence.
The property will be forfeited to the Crown if the application is successful.
An application be be made to exclude the property from forfeiture. The court must be satisfied that the applicant was not involved in the commission of a serious offence and the property is neither the proceeds nor an instrument of the offence.
Pecuniary Penalty Orders
An application can be made by the DPP under the Criminal Assets Confiscation Act for the court to make an order requiring a specified person to pay an amount to the Crown. For a pecuniary penalty order to succeed, the court must be satisfied that the person has been convicted of or has committed a serious offence and the person has derived benefits from the commission of an offence.