Criminal Proceeds Confiscation Act – Application For Restraint Over Property ( After Charge Or Conviction)

What the law says

Section 117 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. If the application is made in urgent circumstances or the prescribed respondent is about to be charged with a relevant offence, the application may be made without notice to the prescribed respondent or another person to whom it relates.
3. The application must be supported by an affidavit of a police officer.
4. The application may relate to all or any of the following property-
   • (a) for property of a prescribed respondent-
     • (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.

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Section 118 of the Criminal Proceeds Confiscations Act Queensland states: 

The police officer’s affidavit must state the following-

• (a) the confiscation offence on which the application is based;
• (b) if the confiscation offence is not a serious drug offence and the police officer suspects the relevant property is the prescribed respondent’s property, the police officer suspects-
  • (i) the property is tainted property and the reason for the suspicion; or
  • (ii) the prescribed respondent derived a benefit from the commission of the offence and the reason for the suspicion;
• (c) if the basis of the application is the conviction of the prescribed respondent of the confiscation offence, details of the conviction;
• (d) if the basis of the application is the fact that the prescribed respondent has been or is about to be charged with the confiscation offence, the police officer suspects the prescribed respondent committed the offence and the reason for the suspicion;
• (e) details of the property sought to be restrained;
• (f) the police officer suspects the property sought to be restrained is the property of the person mentioned in the affidavit and the reason for the suspicion.

Section 119 of the Criminal Proceeds Confiscations Act Queensland states:

1. This section applies only if a police officer’s affidavit relates to property of someone other than the prescribed respondent.
2. This section is in addition to section 118.
3. If the relevant offence is a serious drug offence, the police officer’s affidavit must state-
   • (a) the police officer suspects that the property is tainted property and the reason for the suspicion; or
   • (b) the police officer suspects that the property is under the prescribed respondent’s effective control and the reason for the suspicion.
4. If the relevant offence is not a serious drug offence, the police officer’s affidavit must state-
   • (a) the police officer suspects that the property is tainted property and the reason for the suspicion; or
   • (b) the police officer-
     • (i) suspects that the property is under the prescribed respondent’s effective control; and
     • (ii) suspects that the prescribed respondent derived a benefit from the commission of the offence; and
     • (iii) the reason for the suspicion.

Section 120 of the Criminal Proceeds Confiscations Act Queensland states:

Subject to section 121(2), the State must give notice of the application to each person whose property is the subject of the application and anyone else the appropriate officer making the application for the State considers has an interest in the property.

Section 121 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 122 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court may make a restraining order if, after considering the application and the relevant affidavit, it is satisfied that-
   • (a) the application relates to a prescribed respondent; and
   • (b) there are reasonable grounds for the suspicions on which the application is based.
2. However, if the confiscation offence is a serious criminal offence, the court must make a restraining order unless the court is satisfied in the particular circumstances it is not in the public interest to make the order.
3. The court may make a restraining order in relation to a prescribed respondent who is about to be charged with a confiscation offence only if the court is satisfied the prescribed respondent will be charged with the confiscation offence or a related offence within the next 48 hours.

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Section 123 of the Criminal Proceeds Confiscations Act Queensland states:

The Supreme Court may make a restraining order against property whether or not there is a risk of the property being dealt with in a way that would defeat the operation of this Act.

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 was accompanied by an Affidavit of an authorised Police personnel; AND
3. The Affidavit states:
   • (a) the confiscation offence on which the application is based; AND
   • (b) if the confiscation offence is not a serious drug offence and the police officer suspects the relevant property is the prescribed respondent’s property, the police officer suspects-
     • (i) the property is tainted property and the reason for the suspicion; or
     • (ii) the prescribed respondent derived a benefit from the commission of the offence and the reason for the suspicion; AND
   • (c) if the basis of the application:
     • (i) is the conviction of the prescribed respondent of the confiscation offence, details of the conviction; OR
     • (ii) is the fact that the prescribed respondent has been or is about to be charged with the confiscation offence, the police officer suspects the prescribed respondent committed the offence and the reason for the suspicion; AND
   • (d) details of the property sought to be restrained; AND
   • (e) the police officer suspects the property sought to be restrained is the property of the person mentioned in the affidavit and the reason for the suspicion; AND
4. In respect of property of some other person than the Respondent, the Affidavit must also state:
   • (a) If the relevant offence is a serious drug offence, the police officer’s affidavit must state-
     • (i) the police officer suspects that the property is tainted property and the reason for the suspicion; OR
     • (ii) the police officer suspects that the property is under the prescribed respondent’s effective control and the reason for the suspicion; OR
   • (b) If the relevant offence is not a serious drug offence, the police officer’s affidavit must state-
     • (i) the police officer suspects that the property is tainted property and the reason for the suspicion; OR
     • (ii) the police officer suspects that the Respondent derived a benefit from the offence, suspects that the property is under the prescribed respondent’s effective control and the reason for the suspicions; AND
5. It gave reasonable notice to all persons whose property it seeks to restrain or that:
   • (a) The Court granted leave otherwise; OR
   • (b) It was urgent; OR
   • (c) The Respondent was going to be charged.

It is not necessary for the State to prove the prescribed property was is in fact your property, but rather that it has reasonable grounds to suspect that is your property. Likewise, the State only needs to show that it also has reasonable grounds to suspect that either the property is tainted or that you derived a benefit from the offence.

Reasonable grounds for the suspicion means that there must be some evidence and this evidence must be stated in the Affidavit.

Note that property that is considered as property of the Respondent includes (but is not limited to):

1. Property that is held in the name of the Respondent (i.e. you), either solely or jointly; AND
2. Property that is held in the possession of the Respondent, either solely or jointly; AND
3. Property 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:
   • (a) It is held for the ultimate benefit of the Respondent; OR
   • (b) It was a gift from the Respondent to the other person/s, given within the 6 year period After the application for the Restraining Order being made; OR
   • (c) It is in effect, under the control of the Respondent; AND
4. Property that is held in the name or in the possession of some other person/s, but which the Respondent has some interest in; AND
5. Property that is held in the name of other person/s, but which is suspected of being derived or acquired from the commission of the confiscation offence of the Respondent (whether directly or indirectly).

Note that property that is considered tainted includes (but is not limited to):

1. Property used, or intended to be used, by a person:
   • (a) in, or in connection with, the commission of the offence; OR
   • (b) where use of the property constitutes all or part of the offence; AND
2. Property or another benefit derived by a person from property mentioned in paragraph (a); AND
3. Property or another benefit derived by a person from the commission of the offence; AND
4. If the offence is money laundering, the tainted property that the person seeks to launder; AND
5. If the offence is that of receiving, possessing or disposing of tainted property, the property received possessed or tainted.

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.  In order to facilitate this, the Court may also order that the restrained property be held by the Public Trustee for the duration of the order.

Further, if the Restraining Order is still in place at the end of the forfeiture period (generally 6 months from the date of conviction) the property will be automatically forfeited to the State unless you applied to the Court and obtained an order otherwise. Click here to find out more about automatic forfeiture.

The order remains in effect for the period state in the order and may be extended upon application of the State.  If no period is stated, then it will remain in effect for 1 year, unless extended.

However, if you were not given notice of the application for a Restraining Order the order can only remain in effect for a maximum of 7 days.  Further, where the order is made in anticipation of a charge being laid against you, the order will cease after 48 hours if the charge is not yet laid.

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 the State has applied 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 also set further conditions in the order.  For example, it may state that you can 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 reasonable living expenses and to satisfy debts incurred in good faith.

Further, the Court may impose a condition authorising the State to agree to the disposal of restrained property so that the proceeds can be used by the respondent (i.e. you) to satisfy either a pecuniary debt imposed as part of the sentence for the offence or a Proceeds Assessment Order.

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 and is not tainted in any way.
6. The property is not property of the Respondent or under the effective control of the Respondent.
7. The respondent (i.e. you) was not given reasonable notice of the application and there was no leave or exception for the States failure to do so.
8. Other persons whose property is sought to be restrained by the order were not provided with reasonable notice and there was no leave or exception for the States failure to do so.
9. The order is not in the public interest.