CRIMINAL
CONFISCATION
Restraining Orders
The Scope of the Discretion of the
Court

An application for a restraining order brought pursuant
to either the Proceeds of Crime Act 2002 (Cth) or
Criminal Proceeds Confiscation Act 2002 (Qld) (the
“Commonwealth Act” and “Queensland Act”) is
accompanied by a series of procedural requirements.
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Once those requirements are met the
discretion of the court to refuse an
application for a restraining order is,
with certain exceptions, extremely
limited.
The Scope of the Discretion of the
Court
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The court must make a restraining order in proceedings
brought pursuant to the Commonwealth Act and the
Queensland Act (excepting offences other than serious
offences under Chapter 3 of the Queensland Act) unless:
The court is satisfied it is not in the public interest to make the
order and, in the case of the Commonwealth Act, it is not a
serious offence: respectively ss. 17(4), 19(3), 20(4) and
31(2)(a), and122(2);
The crown fails to give the court the undertakings the court
considers appropriate for the payment of damages or costs,
or both, in relation to the making and operation of the order:
respectively, ss. 21 and 31(2)(b) and 122(4)
Scope of property to be covered by
the restraining order

Under both the Commonwealth Act and the Queensland Act applications
for a restraining order have proceeded on the basis that, once the
jurisdiction to make a restraining order has been enlivened, all of the
property the subject of the application will be restrained.

Provision is made in each Act for the
exclusion of property on satisfaction of
certain criteria and/or the imposition of
conditions for the payment of reasonable
living and business expenses out of
restrained property. However, in each case
the Act expressly prohibits the imposition of
conditions for the payment of legal expenses
incurred in connection with the Act or
criminal proceedings: respectively ss.
24(2)(ca) and 32(4).
Mansfield v DPP (WA) (2006) 226 CLR 486
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In July 2002, on the application of the DPP (WA) a restraining order
was made ex parte against Mr Mansfield pursuant to the Criminal
Property Confiscation Act 2000 (WA) (“the WA Act”), inter alia, on the
basis of substantive proceedings for a criminal benefits declaration
alleging a series of insider trading offences.
On 14 August 2002, Mr Mansfield was first charged with offences,
including offences against the Crimes Act 1914 (Cth).
In 2004, Mr Mansfield unsuccessfully applied for orders:
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That the DPP provide an undertaking as to damages as a condition for the
continuation of the restraining order pending final disposition of the substantive
proceedings. It is of note that there is no specific provision under the WA Act
for the provision of such an undertaking;
Authorising the release of funds to enable Mr Mansfield to retain an expert and
to fund his defence proceedings generally
On 23 September 2005, new indictments were signed by the
Commonwealth DPP.
In 2006, the High Court heard the appeal against the unsuccessful
application for an undertaking and release of funds. As at the date of
this hearing, neither the application for a criminal benefits declaration
nor the criminal proceedings were ready for trial.
Mansfield v DPP (WA) (2005) 31 WAR 97
Pullin JA upheld by the High Court as correct
“Section 43(3) [of the WA Act] states that the court may make a
[restraining] order for ‘all or any’ property that is owned or
effectively controlled by the person. The court may make a
[restraining] order over all property owned by a person and in that
[restraining] order make provision for ‘meeting the reasonable
living and business expenses of the owner of the property’...I will
assume this will not allow the court to make provision for legal
expenses.
However, the court in the exercise of its discretion may also refuse
to make a [restraining] order over some property. The court could
therefore make a [restraining] order with respect to certain
property, and refuse to make one in relation to sufficient property
to allow legal expenses to be paid. In other words the [restraining]
order would not cover property to be used to pay legal expenses.”
(my emphasis)
Application of Mansfield v DPP to
the Queensland Act
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The Queensland Act is cast in somewhat
different terms to the WA Act:
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ss. 43(3) WA Act: “The court may make a
[restraining] order for all or any property that is
owned or effectively controlled by the
person…” ;
ss. 31(1) Queensland Act: “The Supreme
Court must make a restraining order in relation
to property…”
DPP (Cth) v Bowerman (2006) 67 NSWLR 695
“The majority of the Court [in Mansfield] held that those words [‘living and business
expenses’] are wide enough to embrace allowance for the payment of legal
expenses. In doing so their Honours said…:
‘The unique and essential function of the judicial branch of government is
the quelling of controversies by the ascertainment of the facts and the
application of the law. This is done by an adversarial system of litigation. It is
plain that the operation of that system is assisted by the presence of
legal representation, and may be severely impaired by its absence...
The Act…is draconian in its operation and complex in various of its
provisions. There is not readily to be implied a denial of the powers of the
Supreme Court when making or varying a [restraining order] to mould its
relief to permit the use of funds to obtain legal assistance. Such assistance
is for the benefit not only of the individual but …also for the
benefit
of
the State and the public.’
With respect, the force of those observations cannot be denied. However, again, the
case was dealing with legislation significantly different from the Proceeds of Crime
Act 2002 (Cth). Unlike s 24 of that Act, s 45 of the Criminal Property Confiscation
Act (WA) does not expressly prohibit the allowance for legal expenses out of frozen
assets” (my emphasis)
Application of Mansfield v DPP to the
Commonwealth Act cont…
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The Commonwealth Act is also cast in
somewhat different terms to the WA Act:
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ss. 43(3) WA Act: “The court may make a
[restraining] order for all or any property that is
owned or effectively controlled by the person…” ;
ss. 17(2), 18(2), 19(2) and 20(2) Commonwealth
Act: “The order must specify, as property that
must not be disposed of or otherwise dealt with,
the property specified in the application for the
order…”
Undertaking as to Damages
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The question of an undertaking as to
damages has not been in issue in
proceedings under the Commonwealth Act as
the DPP has, as a matter of course, proffered
an undertaking;
This has not always been the case in
proceedings under the Queensland Act and,
in Rodd v DPP (2004) 149 A Crim R 329,
Atkinson J was called upon to determine
whether an undertaking was required
Rodd v DPP (2004) 149 A Crim R 329
“Section 31 of the Act does not grant the court the power to
require an undertaking nor does it specify the situations in which
an undertaking should be sought or provided...
…
It is...in my view, open to conclude that the legislature did not
intend to displace the commonplace power of the court to
require an undertaking as to damages and costs before it will
exercise its power to restrain a person from dealing with
property...That is the assumption on which s 31(2)(b) of the Act
is based. The existence of an undertaking would tend...‘to
satisfy any concerns the court might have that the making of the
restraining order might cause innocent persons to sustain
damage in a context in which, upon acquittal of the person
charged, it could well be regarded as unfair and unjust for such
persons to be without means of recovering such damage.’
There may well be circumstances in which the applicant would
be able to show that an undertaking was not necessary, but this
is not such a case.” (my emphasis)
“In Kirklees Metropolitan Borough Council v Wickes Building Supplies, Lord Goff of
Chieveley...said of [F-Hoffman-La Roche & Co AG v Secretary of State for Trade and
Industry]:
‘It was decided, first, that in actions brought by the Crown to enforce or protect
its proprietary or contractual rights, it should be...required to give an undertaking
in the usual way. But, ...different principles applied in cases where the Crown
brought a law enforcement action, in which an injunction was sought to restrain a
subject from breaking a law where the breach would be harmful to the public or a
section of it.’
In the latter circumstances, the propriety of requiring an undertaking was to be considered in the
light of the particular circumstances of the case....
...
...It is more difficult to categorise the [restraining order] procedure purely as “a law enforcement
action” in the sense used in the House of Lords. The statutory regime is sui generis. The situation
is sufficiently dealt with by holding that, within the authority conferred by....the Act, the Supreme
Court had the power (albeit not the duty) to require the provision of an undertaking and, if this
was not offered or was offered in unsatisfactory terms, the Supreme Court was at liberty to refuse
the [restraining order] sought by the DPP.” (my emphasis)