Criminal Proceeds Confiscation Act – Application For Restraint Over Property (Prior To Conviction)

What the law says

Section 28 of the Criminal Proceeds Confiscations Act Queensland states:

1. The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances.
2. The application-
   • (a) must be supported by an affidavit of an authorised commission officer or a police officer; and
   • (b) may be made without notice to any person to whom it relates.
3. The application may relate to all or any of the following property-
   • (a) for property of a person suspected of having engaged in 1 or more serious crime related activities (a prescribedrespondent)-
     • (i) stated property; or
     • (ii) a stated class of property; or
     • (iii) all property; or
     • (iv) all property other than stated property; or
     • (v) all or stated property acquired after the restraining order is made;
   • (b) stated property, or a stated class of property, of a stated person, other than a prescribed respondent;
   • (c) stated property suspected of being serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified.

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Section 29 of the Criminal Proceeds Confiscations Act Queensland states:

The affidavit of the authorised commission officer or police officer must state-

• (a) for property mentioned in section 28(3)(a) if the serious crime related activity involves an offence stated in schedule 2, part 1-the officer suspects the prescribed respondent-
  • (i) has engaged in 1 or more serious crime related activities; and
  • (ii) the reason for the suspicion; or
• (b) for property mentioned in section 28(3)(a) if paragraph (a) does not apply-the officer suspects the prescribed respondent-
  • (i) has engaged in 1 or more serious crime related activities; and
  • (ii) has derived proceeds from engaging in 1 or more of these serious crime related activities; and
  • (iii) the reason for the suspicion; or
• (c) for property mentioned in section 28(3)(b)-the officer suspects the property is serious crime derived property because of a serious crime related activity of a prescribed respondent and the reason for the suspicion; or
• (d) for property mentioned in section 28(3)(c)-the officer suspects the property is serious crime derived property and the reason for the suspicion.

Section 30 of the Criminal Proceeds Confiscations Act Queensland states:

1. Subject to section 30A(2), the State must give notice of the application-
   • (a) to each person whose property the authorised commission officer or police officer whose affidavit supports the application reasonably believes is the subject of the application; and
   • (b) to anyone else the authorised commission officer or police officer whose affidavit supports the application considers has an interest in the property the subject of the application.

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Section 30A of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application.
2. Despite subsection (1), the court must consider the application without notice having been given if the DPP asks the court to do so.

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Section 31 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court must make a restraining order in relation to property if, after considering the application and the relevant affidavit, it is satisfied there are reasonable grounds for the suspicion on which the application is based.

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Section 9 of the Criminal Proceeds Confiscations Act Queensland defines property as follows:

Property of a person-

• (a) includes-
  • (i) an interest the person has in a licence a person must hold to carry on a particular business; and
  • (ii) an interest the person has in the goodwill of a business; and
  • (iii) property of someone else that is under the effective control of the person; and
• (b) does not include property of the person that is under the effective control of someone else.

Section 20 of the Criminal Proceeds Confiscations Act Queensland defines effective control as follows:

1. Property may be under a person’s effective control even if-
   • (a) the person does not have a direct or indirect right, power or privilege over, or in relation to, the property; or
   • (b) the person does not otherwise have an interest in the property.
2. Regard may be had to all relevant matters in deciding-
   • (a) whether or not property is under a person’s effective control; or
   • (b) whether or not there are reasonable grounds to suspect that property is under a person’s effective control.
3. Matters to which regard may be had include, for example-
   • (a) shareholdings in, debentures over, or directorships of, a corporation that has a direct or indirect interest in the property; and
   • (b) a trust that has a relationship to the property; and
   • (c) family, domestic, business and other relationships between any of the following and other persons-
     •  (i) persons having an interest in the property;
     • (ii) corporations that have a direct or indirect interest in the property;
     • (iii) trusts that have a relationship to the property.
4. However, property is under the effective control of a person (the first person) if the property-
   • (a) is held by another person for the ultimate benefit of the first person; or
   • (b) was a gift given by the first person to another person within 6 years before the making of an application for a restraining order, whether or not the gift is still in the other person’s possession.

Schedule 2 of the Criminal Proceeds Confiscations Act Queensland states:

Section 29 Offences

1. Any offence punishable by imprisonment for 5 years or more and involving any of the following-
   • (a) murder;
   • (b) piracy;
   • (c) kidnapping for ransom;
   • (d) extortion;
   • (e) bribery;
   • (f) a secret commission;
   • (g) loss of revenue to the State;
   • (h) corruption;
   • (i) stealing, receiving, fraud or other dishonesty;
   • (j) conspiracy to obstruct, prevent, pervert or defeat the course of justice;
   • (k) money laundering;
   • (l) prostitution;
   • (m) gambling;
   • (n) child pornography;
   • (o) a dangerous drug as defined under the Drugs Misuse Act 986;
   • (p) trafficking in weapons.
2. An ancillary offence, to an offence mentioned in item 1, punishable by imprisonment for 5 years or more.

Note that the law with respect to Restraining Orders is set to change later this year.  The changes will extend the power of Police to make applications where the suspected serious crime related activities have occurred outside in any jurisdiction outside Queensland, including overseas.  It will allow the Police to take action in respect of restraining property, where:

• (a) a person is suspected of committing serious crime related actives outside Queensland, including in another country; and
• (b) that person lives in Queensland; and
• (c) the property sought to be restrained is situated in Queensland; and
• (d) the Police have made reasonable enquires to ensure that no other action has been taken in respect of that property outside of Queensland.

Note that the definition of “effective control” is also set to change later this year.  It will be extended to property that under a Restraining Order or is held by the public trustee subject to a Restraining Order. Keep an eye on this page for updates on when this law comes into effect.

Keep an eye on this page for updates on when this new legislation comes into effect.

What the police must prove

In order for the State to be successful in their application at Court, it must show the following:

That:

1. It made an application in the approved way; AND
2. The application only lists property:
   • (a) That is held in the name of the Respondent (i.e. you), either solely or jointly; OR
   • (b) That is held in the possession of the Respondent, either solely or jointly; OR
   • (c) That is held in the name or in the possession of some other person/s, but which is under the effective control of the Respondent as:
     • (i) It is held for the ultimate benefit of the Respondent; OR
     • (ii) It was a gift from the Respondent to the other person/s, given within the 6 year period prior to the application for the Restraining Order being made; OR
     • (iii) It is in effect, under the control of the Respondent; OR
   • (d) That is held in the name or in the possession of some other person/s, but which the Respondent has some interest in; OR
   • (e) That is held in the name of other person/s, but which is suspected of being derived from serious crime related activity and the offender is unknown.
3. The application was accompanied by an Affidavit of an authorised Police personnel; AND
4. The Affidavit states:
   • (a) That you are suspected of committing an offence listed in Schedule 2, Part 1 and the reason for that suspicion; OR
   • (b) That you are suspected of committing an offence in listed Schedule 2, Part 2, that you are suspected of having derived property from that offence and the reason for those suspicions; OR
   • (c) If the order seeks to restrain another person’s property, that the property is suspected of being derived from an offence (listed in Schedule 2) committed by you and the reason for that suspicion; OR
   • (d) That the property is suspected of being derived from an offence (listed in Schedule 2) committed by an unidentified person and the reason for that suspicion; AND
5. It gave reasonable notice to all persons whose property it seeks to restrain (unless the Court granted leave otherwise).

It is not necessary for the State to prove you committed any offence, but rather they must show they have a reasonable suspicion that a prescribed offence was committed.  Reasonable grounds for the suspicion means that there must be some evidence and this evidence must be stated in the Affidavit.

Maximum penalty

If the application is successful, the Court will impose an order against you restricting your ability to use property prescribed under the order.  It is not uncommon for the Court to impose an order restraining a person from using all property in his or her possession or under his or her control.  Further, the Court may also restrain you and others from using property owned by another person stated in the order.

The effect of the restraining order is that you must preserve the prescribed property in the condition it was in prior to the order.  For example, in respect of money you cannot spend it or in respect of a house you cannot sell or mortgage it.  The order may also apply to property acquired after the order is made.

The order remains in effect for 28 days, however it may remain in effect longer where the State makes an application for a forfeiture orderfor the property or a proceeds assessment order against you prior to the end of the 28 days.

Note that the Court may order that certain property be excluded from the Restraining Order upon application of a person whose property is restrained. If you are the respondent (i.e. suspected offender) in respect to a Restraining Order, Click here to find more.  If you are another person whose property is restrained under a Restraining Order,Click here to find out more.

It is important that you are aware, that after applying for a forfeiture order, any property that is restrained may be sold off.  This can occur upon application by the State, where the Court is satisfied that the property may deteriorate or lose value by the time the Forfeiture Order is decided, or that the cost of controlling the property would be greater than the worth of the property.

The Court may set further conditions in the order.  For example, it may state that you may dispose of property with the agreement of the Police or that you may use the legitimately acquired property (i.e. wages from a legitimate job) for your and your dependants’ reasonable living expenses and to satisfy debts incurred in good faith.

Note that a person who has a Restraining Order against them in respect of his or her property, is not prevented from giving Legal Aid a charge over property where the legal assistance provided is in respect to a criminal offence or a criminal proceeds confiscations proceeding.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

There are no defences to this application, but rather grounds upon which a person can oppose the application. Possible grounds to oppose this application include:

1. The application was not made in the approved way.
2. The application was not accompanied by an Affidavit.
3. The Affidavit did not detail reasonable grounds for the suspicion stated.
4. There are in fact no reasonable grounds for the suspicion stated.
5. The property came from legitimate sources.
6. The property was accumulated prior to or after the relevant 6 year period.
7. The respondent (i.e. you) was not given reasonable notice of the application and the Court did not provide leave authorising the lack of notice.
8. Other persons whose property is sought to be restrained by the order were not provided with reasonable notice and the Court did not provide leave authorising the lack of notice.
9. The order is not in the public interest.
10. The Police have failed to give undertakings requested of the Court in respect of damages and costs.