CDPP - restraining order
A restraining order is an order that no person is to dispose of, or interfere with (or attempt to dispose of or interfere with), the property specified in the order, except in such manner or in such circumstances (if any) as are specified in the restraining order.
When Can A Restraining Order Be Made?
The Commonwealth DPP can apply for a restraining order if:
- A person has been convicted of, charged with, or it is proposed that he or she be charged with, an indictable offence; or
- A person is suspected of having committed a serious offence within the past 6 years; or
- There are reasonable grounds to suspect a person has committed a terrorism offence.
An application must be accompanied by a supporting affidavit stating the grounds for the applicant’s belief that either:
- The property is subject to the effective control of the suspect; or
- The property is proceeds of the offence.
Contravention of a restraining order is a criminal offence if the person had notice that the interest was subject to the restraining order. The offence is punishable by a fine equivalent to 300 penalty units and/or imprisonment for up to 5 years.
Restraining Order: What Orders May be Made?
The court may make either of the following orders:
- that property must not be disposed of or otherwise interfered with by any person; or
- that property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order.
A restraining order may be issued over one or more of the following:
- all or specified property of the suspect;
- all property of the suspect other than specified property;
- specified property of another person that is subject to the effective control of the suspect;
- specified property of another person that is proceeds of the offence.
What Happens if a Restraining Order is Made?
Once a restraining order has been made, written notice of the order must be given to any person whose interests are affected by the order.
A person who a restraining order is made against may file an application for an exclusion order, which is an order to exclude some or all of the property from the restraining order. The court must be satisfied that the property was not:
- used in or in connection with any unlawful activity; and
- was not derived directly or indirectly from any unlawful activity, and that the property was lawfully acquired.
Can a Restraining Order be Set Aside?
A person who was not notified of the application against the making of a restraining order may apply to the court to have the order revoked. The application must be made within 28 days of the person being notified of the order.
In order to set aside the restraining order, the court must be satisfied either that:
- there are no grounds on which to make the order at the time of considering the application to revoke the order; or
- it is otherwise in the interests of justice to do so.
How Long Does a Restraining Order Remain in Force?
A restraining order ceases to be in force 28 days after the person’s charge is withdrawn, the person is acquitted or the conviction is quashed, unless either a pecuniary penalty order or forfeiture order has been applied for or made.
Seek Legal Advice
If you have been given written notice of a restraining order, it is essential that you seek legal advice immediately, attend the hearing and give evidence. You may be able to get some or all of the property excluded from the restraining order.
Payment of Legal Costs
In some circumstances, a restraining order may provide for paying for a person’s reasonable legal costs. However, the court must be satisfied that the person is unable to pay their legal costs out of their unrestrained property.
For advice or representation in any legal matter, please contact Armstrong Legal.