One often unexpected consequence of pleading guilty to certain types of criminal offending is that property in which the offender has an equitable interest (ownership) can be restrained for a number of purposes. This can happen at any time during the proceedings, but usually occurs either very early on in the proceedings or when the proceedings are nearing the end. For example, after a committal hearing in the Magistrates’ Court after which the matter is committed to either the County or Supreme Courts.
What are the Consequences of a Restraining Order?
Restraining orders can have a number of practical, legal and emotional consequences. Significantly, there are strict time frames put in place during which the affected people can apply for exclusion of the property from restraint. Not all criminal lawyers work in the restraining order and confiscation space, because of the fact that it is technically a civil area of law. There are costs implications and the onus to satisfy the court that the property ought to be excluded lies on the offender or any other applicant seeking release of the property (such as the innocent spouse, who also has a share in the property but who was not involved in the offending).
In what Instances would a Restraining Order be Issued?
Restraining orders are most commonly obtained where a person has earned an income from crime and used that income to purchase property (for example, the illegal income from drug trafficking), or where the person has offended from their home (such as, trafficking drugs of dependence from their residence. However, restraining orders can be obtained where a person’s wealth is unexplained. So, for example, where a person has amassed a property portfolio in circumstances where law enforcement cannot ascertain how they have done so. Often this occurs where a person has been convicted, or is under investigation for serious offending, and the Proceeds of Crime Squad of the Victoria Police are alerted to a discrepancy between how much the suspect legitimately earns and the property holdings that they seem to have amassed. Unless the offender, or their innocent family member, can satisfy the Court that the property ought to be excluded from restraint and confiscation, the property will ultimately be forfeited to the State of Victoria to be sold and the proceeds converted into state revenue.
Lastly, another common basis for obtaining a restraining order is to enable a victim to make a compensation claim against the offender through the sentencing legislation. It is becoming more common for the Director of Public Prosecutions to obtain a restraining order through the County Court of Victoria to restrain the property of a person pleading guilty to serious sex crimes or crimes of violence. Once the property is restrained, it is a matter for the victim to make an application against the property.
What are the Implications of Receiving a Restraining Order?
Apart from the apparent legal implications of restraining orders, there are also other practical implications. Even if you are the legal owner of restrained property, you cannot deal with it in any way without permission from the state. So, for example, you cannot rent it, re-mortgage it, sell it or encumber it with a mortgage without first obtaining consent from the state which is then converted into Court orders.
In addition, we are increasingly seeing banks close accounts that are associated with individuals whose properties have been restrained. Since the Royal Commission into the Banking Sector, banks have become increasingly concerned about being seen to service bank accounts and loans of individuals who may have been involved in crime. We have had clients whose accounts have been closed by the bank (even if there are funds still in them) because the client has been charged but not yet convicted of serious drug or money laundering offences. This can be very distressing for the client and their family and can also have serious implications, financially, for them. This includes, somewhat ironically, the ability of the accused or their family to pay the mortgage to the bank because the bank has closed the account from which the mortgage is paid. However, notwithstanding all of the negative implications of restraining orders, they can be navigated and dealt with.
What to do if you are Served with a Restraining Order?
1. Consult a Lawyer
It is essential that you, first, consult a lawyer who works within this space. It is a very specific practice area and, generally speaking, your local solicitor or property lawyer will not be experienced in this area, such that they are able to give you the most appropriate legal advice. You should consult a lawyer who works both in the criminal law and confiscation space. At Galbally Parker Lawyers, we have a number of lawyers who work in both spaces and are available to assist you.
You should consult a lawyer as soon as possible because strict time periods apply to the filing of documents seeking exclusion. If you bury your head in the sand and wait too long, you may be barred from seeking exclusion and your property may be forfeited to the state before you have done anything about it. If you have a spouse who is also affected by your alleged offending, or you are the spouse, you must seek the advice of an independent lawyer. It is inappropriate for one lawyer to represent you both as a conflict may arise between each of your interests. This may include a situation where the accused is pleading guilty and cannot realistically defend against the exclusion of their share of the property, but the spouse has a good argument to have his or her share excluded on the basis that their share is neither derived by nor tainted by the actions of the accused.
2. Prepare for your Current Accounts to be Closed
You must prepare to have your accounts closed with your current bank. Accordingly, you should prepare yourself by opening accounts with other banks or facilities so that you can arrange for the transfer of funds from the closed accounts into the new accounts that have been opened. If your current bank advises you that they are not prepared to continue to mortgage your property, you should consult a mortgage broker as soon as possible to ensure that your property is re-financed, with the consent of the State, and that a new mortgage secured. This can be a very stressful time and it is essential that you have all of the appropriate supports in place. You may also wish to consider withdrawing some cash from your accounts so that you can continue to pay for groceries and utilities whilst the logistics of your accounts are being sorted out.
3. Provide your Lawyer with Relevant Documentation
Once you have done all of the above, the most important thing is to keep in touch with your lawyer and provide them with all of the documentation they ask for. There will be a lot! We will request tax returns, bank statements, transaction histories and property records. Start gathering this information as soon as you can. Save it in folders that can be easily searched and organised and then provide them to your lawyer so that they can prepare affidavits in support of the exclusion of your share of the property. If you do all of this work yourself, you will actually save yourself more time, stress and money down the track. A common theme that we see with clients who have restraining order / confiscation matters is that, if they don’t organise all of their documents at the commencement of their matter, we have to chase them up throughout their matter and, often, re-prepare and re-file documents because we were not provided with all of the documentation and information at the commencement of the matter. This means more legal fees for you because, instead of doing a comprehensive job at the beginning, we are playing catch up throughout the matter. The Court requires those seeking exclusion of their property from restraint and confiscation to file affidavits and other documents in accordance with the timeline set by the Court. It is a matter for you whether your lawyer is well-armed with all of the documents to make the best application possible, in the most cost-effective way possible, or whether your lawyer will be required to re-perform the work later.
How Galbally Parker Lawyers can help with Restraining Order Matters
We hope that the information in this blog has been useful to you in your particular circumstances. If you need advice specific to your particular matter, contact our helpful team at Galbally Parker Lawyers to schedule an Initial Client Consultation. We offer prospective clients an obligation free and fixed fee consultation for up to 60 minutes with one of our experienced restraining order lawyers to discuss their matter before they decide whether to retain our firm, or any other, to represent them on an ongoing basis. Please visit our contact us page for our contact information.