When initially taking instructions in a proceeds of crime matter, you should consider each of the following:

 

  • Client – Determine who you will act for.  Often a restraining order will affect the rights of numerous persons.  clarify in writing for whom you will act.

 

  • Exclusion test – Determine which exclusion test applies so that you can start to gather relevant evidence. The exclusion test relevant to your client will usually depend on the jurisdictional basis for the restraining order and the identity of your client (whether defendant or third party).

 

  • Conflict – Consider whether you may have a conflict acting for more than one person.  Conflicts commonly arise whether parties claim interests in the same property or where one client is alleged to have committed an offence and the other is a third party to the alleged offending.

 

  • (In Victoria) Property Interest Declaration – Ensure that the property interest declaration is completed and returned to the Criminal Proceeds Squad.  At the time of completing the property interest declaration, thought must be given to all potential interests in the restrained property (whether legal or equitable – such as interests under resulting or constructive trusts) so as to avoid inconsistency with later exclusion applications.

 

  • Identify all critical time frames – Determine the timelines for making any relevant applications (revocation, exclusion, compensation etc).  Note that, absent the filing of exclusion applications within time, property may be automatically forfeited.

 

  • Affidavit in support of restraining order application – Obtain a copy of the affidavit relied upon in support of the application for the restraining order and all exhibits.

 

  • Living Expenses – Consider whether it is necessary to make application for variation of the restraining order to permit restrained property to be used to meet expenses.

 

  • Legal Aid – Consider whether it is necessary to make application for legal aid.

 

 

  • Stay of proceedings – Consider whether it is preferable to have the proceeds of crime proceeding stayed pending the finalisation of any criminal proceeding.

 

  • Undertaking as to Damages – Consider whether the undertaking as to damages contained in the restraining order is sufficiently broad to protect all persons who may suffer damage as a result of the restraining order.

 

  • Sale of Property – Consider whether restrained property should be sold pending the hearing of the exclusion application. If sold, it is usually possible to have secured debts discharged on sale on the basis that any net proceeds of sale continue to be restrained pending the finalisation of the proceeds of crime proceeding.

 

  • Evidence – Consider what documents will be required to support any application to be made, including any exclusion application.  It often takes a long time to collate such documents.  Further, if the client is likely to receive a custodial sentence, much of the ground work for an exclusion application can be performed whilst the client can assist in obtaining and collating documents.