Confiscation & Restraining Order Lawyer

If You have received a Restraining Order and are facing Confiscation, You Cannot Wait!

If you or someone you love has received a notice of a restraining order or confiscation order, you cannot wait to speak with an experienced restraining order lawyer. Time is of the essence. There are strict time frames which apply to confiscation and restraining order proceedings and, all to often, people attend to them way too late. Getting the best legal advice from an experienced criminal defence lawyer will make you more informed, less stressed and better prepared for the proceedings you are facing. The right answer may be simple.

What is a Confiscation or Restraining Order? What you need to know: 

A person charged with a criminal offence, especially (but not only) drug related and dishonesty offences, risks having property associated with the offending initially restrained (so that it cannot be sold or otherwise affected) and subsequently forfeited to the State.

In almost every major drug prosecution, for example cultivation of a commercial quantity of cannabis or trafficking in a drug of dependence, the Proceeds of Crime Directorate of the Office of Public Prosecutions, will make application to the County or Supreme Court for a restraining order and, ultimately, a confiscation order. Similarly, where the Police claim that wealth is unexplained, they can apply for confiscation and restraining orders to restrain properties, including rental proceeds, putting an incredible strain on the accused / respondent. Often, the offender’s spouse or partner, who has not offended at all, will have his or her interest in the property restrained as well and be liable to have the interest forfeited. Preparing exclusion applications for those facing confiscation and restraining orders is essential and must be done thoroughly and correctly.

The consequences to the offender and his or her family are substantial and are often disproportionate to the offending. In some cases, the forfeiture is automatic upon conviction for an offence, so obtaining legal advice from experienced criminal defence lawyers at the earliest stage is essential. This is particularly so because there are strict time limits for exclusion applications to be made to try and stop the properties being confiscated and forfeited to the State as part of confiscation orders.

Why Have I Received a Restraining Order for My Property?

In Victoria, a restraining order can be made under both the Federal legislation outlined in the Proceeds of Crime Act 2002 (Cth) (POCA) or the Confiscation Act 1997 (Vic).  The type of restraining order that can be made is determined by the offence, or offences, that have allegedly been committed. depends on what offence(s) have been, or are suspected to have been, committed. Such orders generally operate in the same manner, preventing the disposal or handling of the property named in the order. Typically, these orders serve as a preliminary step towards more permanent measures, including forfeiture of the property to either the State of Victoria or the Commonwealth of Australia.

There are a number of reasons several reasons a Court may make an order to restrain property under the  POCA or Confiscation Act, as outlined below.

POCA

• a person has been charged with or convicted of an indictable offence
• a person is suspected of having committed an offence, even if no charges have been filed yet
• has property that is reasonably suspected to be the proceeds or instrument of a crime, even if no charges have been filed yet
• has total wealth that is reasonably suspected to exceed the value of their lawfully acquired wealthTop of Form

Confiscation Act

• a person has been charged with or convicted of a Schedule 1 offense, or if such charges will be brought within 48 hours of the restraining order application
• there is reason to believe that within the next 48 hours a person will be charged with a Schedule 2 offence, or if a person has already been charged with or convicted of such an offence;
• there is reason to believe that within the next 48 hours a person will be charged with a serious drug offense, or if a person has already been charged with or convicted of such an offence
• there are suspicions that the property to be restrained is considered tainted property
• there are reasonable grounds to suspect that a person has been involved in serious criminal activity, that the person has an interest in the property, that the serious criminal activity took place in Victoria (for property located outside Victoria), and that the total value of the property is at least $50,000
• there are reasonable grounds to suspect that the property was not lawfully acquired, and the property is located in Victoria or the person who obtained the property is typically resident in Victoria

Is it Possible to Exclude Property from Restraining Orders?

When served with a Restraining Order, it may be possible for you or another interested party to request exclusion of the property by applying to the Court. If the Restraining Order is intended for automatic forfeiture, the Restraining Order stage is the only opportunity to request exclusion before forfeiture occurs. In cases where the Restraining Order is associated with an offense, you can submit an application for exclusion within a set timeframe, and must provide supporting reasons after your criminal case concludes. This approach ensures that you don’t inadvertently provide evidence that could be used against you in court.

The grounds for requesting exclusion will vary depending on the purpose of the Restraining Order, whether you have been charged with an offense, and the details of your case. However, common reasons for excluding property interests include demonstrating that the property was not involved in the criminal activity, proving that restraining the property is unnecessary to fulfill the order’s purpose, or establishing that you were not involved or aware of any criminal activity related to the property.

Contact Galbally Parker Restraining Order Lawyers

Many criminal law firms in Melbourne do not practice confiscation law because of the nature of the commercial knowledge required in understanding the complicated Confiscations legislation, which governs this area. This is where the criminal defence lawyers in our Melbourne office are different. We understand how to properly prepare exclusion applications and the accompanying affidavit material to challenge confiscation and restraining orders.

Over the years, however, the trusted confiscation and restraining order lawyers at Galbally Parker have acquired extensive knowledge in this area and are thereby able to assist those who have been charged criminally and whose property interests have been restrained without the need for the client to seek advice from a commercial law firm thus providing the client with a “one stop” solution to their legal issues. Contact us by email via lawyers@galballyparker.com.au or telephone (9670 8771) if you have received a Restraining Order or Application for Confiscation.