Restraining Orders

The purpose of Restraining Orders is to restrain property to prevent its dissipation until the conclusion of the proceedings which usually occurs at forfeiture. POCA restraint can occur without a criminal conviction and/or without a criminal charge. Generally POCA action will commence though when a suspect has been charged as it is then easier to satisfy a judge that the AFP Member holds their suspicion required for restraint on reasonable grounds if the suspect has analogously been charged for related offences.

In the event that a suspect has not been criminally charged, it is still possible to obtain POCA restraint, upon the civil standard, but following Briginshaw,[1] as POCA action involves the stripping of people’s assets, the balance of probabilities will be adjudged within a relatively serious context. This may require adjudication to a higher level of satisfaction within the balance of probabilities.

Required Elements Common to All Restraining Orders

A court with “proceeds jurisdiction”

“Proceeds jurisdiction” is extensively defined in section 335 POCA, but generally speaking, the court that has jurisdiction to deal with criminal matters on indictment in the respective State or Territory is the court that has jurisdiction to deal with the proceeds of crime matter.

NSW – Supreme Court of New South Wales.

VIC – Supreme Court of Victoria.

QLD – Supreme Court of Queensland.

SA – Supreme Court of South Australia.

WA – Supreme Court of Western Australia.

Tas – Supreme Court of Tasmania.

NT – Supreme Court of the Northern Territory.

ACT – Supreme Court of the ACT.

If the restraining order relates to a person, the correct State or Territory is the State or Territory where the conduct constituting the offence occurred, or is reasonably suspected of occurring. If the restraining order is in relation to property (in rem), it is the State or Territory where the property is located.

A “proceeds of crime authority” applies for the order

A “proceeds of crime authority” means either the CDPP or the AFP.

The threshold of “reasonable suspicion”

Referring to:

• The court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds;
• There are reasonable grounds to suspect …

Suspicion: ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”[2]

‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.’[3]

For the threshold of reasonable suspicion to be met, the usual criminal or civil standards of proof need not be established. It is a lower threshold to meet. It is an even lower threshold than the establishment of a prima facie case.[4]

When a court is assessing reasonable suspicion, it does not substitute its own opinion for that of the [deponent].[5]

The material which establishes the reasonable grounds for suspicion does not necessarily need to be admissible evidence.[6]

In summary, the requisite threshold of reasonable suspicion is not a high bar to overcome. It is merely a suspicion that is held reasonably. For example, if an authorised officer deposes that they suspect that Joe Bloggs has committed an offence against s 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth), based on the opinion of Sam Smith (who himself is a convicted criminal), this may not be a suspicion held reasonably (at least not to the satisfaction of a Judge).

This is in contrast to an authorised officer deposing that they suspect that Joe Bloggs has committed an offence against s 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth), based on:

• A large amount of cash found on Joe Bloggs, which is not commensurate with Joe Bloggs’s declared income;
• Joe Bloggs’s previous criminal convictions;
• No reasonable explanation forthcoming for holding the large amount of cash;
• A section 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth) charge being laid and currently before the courts;
• Statements of Police Officers deposing to the fact that they found a large amount of cash on Joe Bloggs’s person;
• Lawfully intercepted telecommunications transcripts showing conversations Joe Bloggs had discussing the movement of large amounts of cash;
• Statements and/or photos of surveillance activity of Joe Bloggs showing the handling and movements of large cash amounts;

If an authorised officer held a suspicion against Joe Bloggs based on the abovementioned dot points, this may be a reasonably held suspicion. Repeating what’s mentioned earlier, ‘reasonable suspicion’ is not a high bar to meet, it does not need to be based on admissible evidence, it merely needs to be a suspicion, held reasonably.

Restraining Orders Generally

Generally speaking, section 17 and 18 orders are more commonly used when an individual has been charged or it is known that they will be charged with an offence. Section 19 orders are also used when there is a large amount of evidence to suggest that the property in question is either the proceeds of an indictable offence and/or the instrument of a serious offence, and no one is laying claim to the property. The more exotic Restraining Orders such as section 20 and section 20A are used less often.

It is much easier to obtain restraining orders (and subsequent forfeiture) when there is a conviction on foot (at least in relation to in personam orders). Even though technically, the POCA is a civil based (balance of probabilities) forfeiture scheme, the amount of evidence required to be provided is to a relatively high level of satisfaction as per Briginshaw.

Restraining Orders are often sought ex-parte,[7] usually to prevent the potential dissipation of funds if the other party were put on notice.

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[1] Briginshaw v Briginshaw (1938) 60 CLR 336.

[2] Hussein v Chong Fook Kam (1970) AC 942, 948.

[3] George v Rockett (1990) 170 CLR 104, 112.

[4] Williams v Keelty (2001) 184 ALR 411, [172].

[5] Williams v Keelty (2001) 184 ALR 411, [166]-[167].

[6] Walsh v Loughman [1991] 2 VR 351, 357; Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414.

[7] S 26(4) Proceeds of Crime Act 2002 (Cth).

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