A restraining order is an order that prevents a person disposing of, or attempting to dispose of property specified in the order. It is made when property is suspected of having been acquired with the proceeds of crime. A restraining order in this context is not to be confused with a restraining order in the domestic violence context.
When Can A Restraining Order Be Made?
- property is held in a false name;
- there is reason to believe the property originated from the proceeds of criminal activity;
- the owner of the property is likely to be charged with a serious criminal offence;
- the owner of the property has been charged with a serious criminal offence; or
- the owner of the property has been convicted of a serious criminal offence.
If the property that is the subject of the application originated from crime and is tainted property then the Supreme Court must make a restraining order. Restraining orders are normally made prior to an assets forfeiture order.
What Conditions May Be Made?
A restraining order will be made with several conditions attached to it. The conditions include:
- that no person is to dispose of or tamper with the property except in a manner allowed by the court;
- that the property or interest in the property is transferred to the NSW Trustee and Guardian under section 10B(2) of the Criminal Assets Recovery Act 1990;
- that a person be required to answer questions related to the location or other information about the property under oath according to Section 12(1)(b1) of the Act. A person being questioned under oath is required to answer any questions they are asked, even if those answers will incriminate them or make them liable to asset forfeiture or other penalty. Answers given may not be admissible in future criminal proceedings.
Does The Crime Commission Have To Notify The Owner?
The Criminal Assets Recovery Act 1990 (NSW) allows the NSW Crime Commission to apply for an ex parte restraining order meaning that they do not need to notify the person who owns the assets.
Ex parte orders are generally made with the intention to prevent the disposal of the assets following final determination of an Asset Forfeiture Order application.
If the NSW Crime Commission does not apply ex parte then they are required to provide written notice to the affected person of the order. If the Supreme Court makes a restraining order and has been unsuccessful in their attempts to contact the affected person, the restraining order will still be enforced.
What Happens If The Order Is Contravened?
Legal Costs Order
A person may be required to pay for another person’s or the state’s legal expenses arising out of an application for a restraining order under Section 16a of the Proceeds of Crime Act. In limited circumstances the property owner will not be required to pay any legal costs if they can show the Supreme Court that they are unable to do so.
If you require any information on restraining orders or any other legal matter, call us on 1300 038 223 or email us.