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.’

[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.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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