Criminal Proceeds Confiscation Act – Application To Set Aside Restraining Order After Conviction

What the law says

Section 137 of the Criminal Proceeds Confiscations Act Queensland states: 

1. On the application of a person mentioned in subsection (2), the Supreme Court may make an order setting aside the restraining order.
2. The application may be made by-
   • (a)  the State; or
   • (b)  the prescribed respondent; or
   • (c)  a person whose property is restrained under the restraining order or who has an interest in the restrained property.
3. The applicant must give notice of the application to the DPP and anyone else the applicant considers has an interest in the restrained property.
4. A person given or entitled to be given notice under subsection may appear at the hearing of the application.
5. Without limiting subsection (1), the court may set aside a restraining order on the application of a prescribed respondent if the prescribed respondent-
   • (a)  gives security acceptable to the court for payment to satisfy any pecuniary penalty order that may be made against the prescribed respondent on the prescribed respondent’s conviction for the offence; or
   • (b)  gives undertakings satisfactory to the court about the prescribed respondent’s property.

What the police must prove

N/A

Maximum penalty

The Court may set aside the order or refuse the application.

If the application is successful, the Restraining Order will be set aside.  This will enable you and other persons to deal with the property that was restrained from that point onwards, as you see fit. .

If you are unsuccessful, the order will remain in place and it you will have to continue to abide by that order. Further, the property may be subject to automatic forfeiture.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

In order for you to be successful in an application at Court, you must show the following:

That:

1. Your are:
   • (a) The prescribed respondent in respect of a Restraining Order; or
   • (b) a person other than the prescribed respondent, whom has had your property restrained by the Restraining Order made against the prescribed respondent; AND
2. You made an application to set aside Restraining Order; AND
3. You gave notice of the application to the Department of Public Prosecutions and all others interested (i.e. those who have an interest in property restrained by the order) AND
4. You meet the requirements.

It is important that you are aware that even where you meet the requirements, the Court is not obligated to set aside the order and it may still remain.

Requirements for Application – Criminal Proceeds Confiscations (After Charge or Conviction) Law – Restraining Order over Property – Application to Set Aside Order – Lawyer / Solicitor Article

In order to have the possibility of success in your application, you must meet the requirements as follows:

1. You must be able to provide security that would be sufficient to satisfy any Pecuniary Order that may be made if you are convicted;
2. You must give the Court any undertakings it considers necessary in respect of you use of the property.