These are some matters which you might consider discussing with your lawyer or for practitioners to consider when taking instructions from clients.
- Time limits – identify all relevant time limits. In some cases, if an application is not made in time, it may be forfeited without recourse.
- Sale of property – Consider whether restrained property should be sold pending the hearing of the exclusion application. The AFP will generally consent to a sale provided that the net proceeds of sale are held by the Official Trustee pending the finalisation of the proceedings.
- Undertaking as to damages – Consider whether the undertaking as to damages contained in the restraining order provides sufficient protection to all persons affected by the restraining order. That undertaking is the only basis upon which a claim may be made against the AFP arising from loss suffered by reasons of the restraining order.
- Living/business expenses – The Proceeds of Crime Act allows a person to bring an application for variation of the restraining order to pay reasonable living and business expenses, including the expenses of children. This does not include the release of money for payment of legal fees in respect of proceedings under the same Act or criminal charges.
- Police affidavit – Obtain a copy of the affidavit in support of the application for the restraining order. This affidavit sets out the evidentiary basis for the restraining order.
- Identify type of restraining orders – Each restraining order falls under a different section. Different restraining orders carry different risks of forfeiture. Automatic forfeiture can occur under a section 17 or section 18 restraining order if the accused is convicted. Automatic forfeiture can occur without conviction after a section 18 or section 19 restraining order has been on foot for 6 months and the AFP has made an application for forfeiture.
- Identify all interest holders – Each person with an interest in restrained property must take their own steps to have it excluded or released from restraint. Identify every person who has an interest in the restrained property as well as their specific interest.
