Serious Crime Prevention Order

When an offender is involved in or convicted of serious criminal related activity the Court may make a Serious Crime Prevention Order (‘SCPO’). Serious Crime Prevention Orders impose conditions, restrictions and requirements on the offender which aim to protect the public by preventing the offender from engaging in serious criminal related activity. This article explains Serious Crime Prevention Orders under the Crimes (Serious Crime Prevention Orders) Act 2016.

What is a Serious Crime Prevention Order (SCPO):

A Serious Crime Prevention Order is a Court order pursuant to Section 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 that imposes prohibitions, restrictions, requirements or other provisions as the Court considers appropriate on a person for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. 

When can a Serious Crime Prevention Order (SCPO) be made?

A Serious Crime Prevention Order must be applied for by an “eligible applicant”, it is not an order that is automatically made if a person is found guilty of or pleads guilty to any criminal offence. An eligible applicant is defined in Section 3 of the Act to mean either the Commissioner of Police, the Director of Public Prosecutions or the New South Wales Crime Commission.

Section 5(1) of the Crimes (Serious Crime Prevention Order) Act 2016 allows the Court to make a Serious Crime Prevention Order if:

• The person is at least 18 years old, 
• The Court is satisfied that:
  • The person has been convicted of a serious criminal offence, or
  • The person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
• The Court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. 

The Act requires that an application for a Serious Crime Prevention Order must be made:

• To either the Supreme or District Court – if the ground for making the order is that a person has been convicted of a serious offence, or 
• To the Supreme Court – if the ground for the making of the order is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence.

Definitions – Section 3:

“Serious Criminal Offence” has the same definition as in the Criminal Assets Recovery Act 1990 to mean the following offences:

• Prescribed drug offences including trafficking, supplying and cultivating,
• Prescribed indictable offences,
• Offences punishable by imprisonment for 5 years or more involving theft, fraud, money laundering, extortion, violence, bribery, blackmail, harbouring criminals, obtaining financial benefit from the crime of another person, perverting the course of justice, tax or revenue evasion, homicide, obtaining or offering a secret commission, illegal gambling and corruption,
• Prescribed firearms offences, 
• Prescribed Crimes Act 1900 offences.

“Serious crime related activity” means anything done by a person that is or was at the time a serious criminal offence, whether or not—

• the person has been charged with the offence, or

• if charged, the person—

• has been tried, or

• has been tried and acquitted, or

• has been convicted (even if the conviction has been quashed or set aside).

Content of a Serious Crime Prevention Order (SCPO): 

A Serious Crime Prevention Order (SCPO) can contain any prohibitions, restrictions, requirements or other provisions as the Court considers appropriate to protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.  

Section 6 of the Act provides that a SDAPO must not contain provisions that require a person:

• To answer or provide information orally, or
• To answer questions, or to provide documents or other information that are subject to client legal privilege or legal professional privilege, or
• To disclose protected confidences under the Evidence Act 1995, or
• To provide documents or other information that is held by the person in confidence as part of a banking business unless:
  • The person to whom the confidence is owed has consented, or 
  • The order specifically requires the provision or production of the document or other information concerned, or documents or other information of the kind concerned,
• To answer questions, or to provide documents or other information that would result in a disclosure prohibited by a provision of another Act other than the Evidence Act 1995.

Duration of Serious Crime Prevention Order (SCPO):

A SCPO will take effect when it is served upon the person unless the order specifies it is to start later. A SCPO must not be made for a period of over 5 years pursuant to Section 7 of the Act. 

What Are the Consequences for Breaching a Serious Crime Prevention Order (SCPO):

Section 8 of the Act contains the offence provision for breaching a SCPO.  It is an offence to knowingly contravene a Serious Crime Prevention Order, and the offence carries a maximum penalty of 5 years imprisonment and/or 300 penalty unit fine for a natural person and 1500 penalty units for a corporation. 

If a corporation or business partnership has been convicted with breaching a serious crime prevention order an eligible applicant can apply to the Supreme Court seeking to wind up the company or dissolve the partnership. These powers are found at Sections 9 and 10 of the Act. 

Variation or Revocation of Serious Crime Prevention Order (SCPO):

The Court has the power to vary or revoke a SCPO. The application to vary or revoke the SCPO must be made by the person against whom the SCPO was made with the leave of the Court. Section 12 of the Act states that leave of the Court is only to be granted for this purpose if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied. In determining whether to vary or revoke the SCPO, the Court must in accordance with Section 12(3) of the Act:

• Allow all parties to the proceedings for the original order a reasonable opportunity to be heard on the matter, and 
• Have regard to the same factors to which the Court is to have regard in considering whether or not to make a SDAPO and the contents of a SDAPO.

Appealing Against Making of a Serious Crime Prevention Order (SCPO):

There is an ability to appeal against the making of a Serious Crime Prevention Order as per Section 11 of the Act. The ability to appeal will depend upon whether the basis of the appeal involves a question of fact or a question of law. Section 11(2) provides that:

• For questions of fact an appeal lies as of right, 
• For questions of law an appeal requires leave (permission) of the Court. 

Appeals on questions of fact must be filed within 28 days after the date on which the SDAPO decision was made (unless the Court to which the appeal is being made grants leave for it to be made after that time) as per Section 11(3) of the Act. 

On appeal, the Court has the powers pursuant to Section 11(4) to confirm, vary or reverse the decision subject of the appeal, and make a consequential or ancillary order.

Proceedings for Serious Crime Prevention Order (SCPO) Applications:

Proceedings for SCPO applications are not criminal proceedings as per Section 13 of the Act. The Act explains that except in relation to the offence of breaching a SCPO, the rules of construction applicable only in relation to criminal law do not apply to the application of this part, and the rules of evidence applicable in civil proceedings including the burden of proof apply and those applicable only in criminal proceedings do not apply. 

Evidentiary Considerations for Serious Crime Prevention Order (SCPO) Application:

The definition of serious criminal related activity is defined at Section 3 to include where the person has not been convicted, or has been acquitted or had the conviction quashed or set aside for a serious criminal offence. 

Section 5(5) of the Act allows the Court to admit as evidence and take into account hearsay evidence for an admission made by the person if the Court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and, the person against whom the order is sought to be made has been notified, and served with a copy of, the evidence before its admission.