Restraining Orders relating to people convicted of or charged with indictable offences – s 17

This Restraining Order allows the restraint of property of a person whom has been convicted of, charged with, or it is proposed that they be charged with an indictable offence.[1] An authorised officer will need to depose that the officer reasonably suspects that the suspect has committed the offence if the person has not yet been convicted.

The required elements for a successful s 17 Restraining Order are:

• The application is heard before a court with proceeds jurisdiction;
• A proceeds of crime authority applies for the order;
• A person has either been:
  • Convicted of;
  • Been charged with;
  • It is proposed that the person be charged with an indictable offence.
• Affidavit requirements of the authorised officer are met;[2]

The property in question can either be specified property or all property of the suspect.[3] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[4]

It is ambiguous for the purposes of section 17 what constitutes conviction. The definition of ‘conviction’ depends upon what context it is considered.[5] There must be some act or determination by the court before it can be said that a person has been convicted.[6] Consideration of the term conviction in the state confiscation law context has concluded that conviction can occur before a formal allocutus, and before the person is sentenced.[7] Consideration of the term ‘conviction’ in the context of the forerunner to POCA, the Proceeds of Crime Act 1987 (Cth), found that a person was convicted when the trial judge accepted the jury’s verdict and remanded her in custody for sentencing.[8]

[1] Defined in S 338 Proceeds of Crime Act 2002 (Cth): ‘Indictable offence means an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).’ S 4G Crimes Act 1914 (Cth): ‘Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.’

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[2] See S 17(3) Proceeds of Crime Act 2002 (Cth).

[3] S 17(2)(a) Proceeds of Crime Act 2002 (Cth).

[4] S 17(6) Proceeds of Crime Act 2002 (Cth).

[5] Griffiths v R (1977) 137 CLR 293, 336; Maxwell v R (1996) 184 CLR 501, 507.

[6] R v Tonks and Goss [1963] V.R. 121, 127-128.

[7] DPP v McCoid [1988] VR 982.

[8] Della Patrona v DPP (Cth) (1995) 38 NSWLR 257, 315; Dpp (Cth) v Elias Helou [2003] NSWCA 301, 579-580.

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