The NSW Crime Commission restrained our client's bank accounts and property under the Criminal Assets Recovery Act 1990 before any conviction. We applied to exclude legitimately acquired assets, and the restraining order was lifted by settlement in the Supreme Court.
Result at a glance
- Proceedings: NSW Crime Commission restraining order under the Criminal Assets Recovery Act 1990 (CARA), freezing our client's assets on suspicion of serious crime-related activity.
- Court: Supreme Court of New South Wales.
- Approach: Exclusion applications to release legitimately acquired property, followed by settlement.
- Outcome: Restraining order lifted. Matter settled.
The proceedings
Under the Criminal Assets Recovery Act 1990 (NSW), the NSW Crime Commission can apply to the Supreme Court to freeze a person's bank accounts, real property, vehicles and business assets. It does not need criminal charges or a conviction. Under s10A of CARA, the Commission can obtain a restraining order ex parte, meaning the Court can make the order without notice to the affected person. Our client was in that position: a NSW Crime Commission restraining order froze the assets, with no conviction and, in matters like these, sometimes no criminal charges at all. A restraint of this kind affects mortgage repayments, business expenses, and the ability to fund a defence.
Why a criminal acquittal does not end it
Crime Commission matters run on a separate track from any criminal case. A person can be found not guilty in a criminal court and still lose property through civil forfeiture, because the standard of proof is different. Criminal charges require proof beyond reasonable doubt. CARA proceedings operate on the balance of probabilities: the Commission needs to show only that it is more likely than not that the property is connected to serious crime-related activity. Under s22 of CARA, the Court can make an assets forfeiture order, and if the restrained person cannot prove on the balance of probabilities that their property was legitimately acquired, it can be forfeited. The burden sits on the person to prove the assets are clean, not on the Commission to prove they are not.
The issue
These proceedings are complex and drawn out, managed in the Supreme Court, with the Commission's investigative resources behind its application. The immediate problem is practical: when everything is frozen, the person cannot fund their own defence, which is the pressure the restraining order creates. Releasing funds for living expenses and legal fees, and identifying which assets could be shown to be legitimately acquired, were the first priorities.
What we argued
The core of the defence was built around s25 of CARA: exclusion applications. Where a person can demonstrate that specific property was legitimately acquired, with documentary evidence tracing the source of funds or the history of ownership, the Court can exclude that property from the restraining order. Tax records, employment history, loan documents and bank statements all form part of that evidentiary picture. The exclusion applications were supported by financial records demonstrating the lawful origin of the restrained assets, which put our client in a position to negotiate.
Settlement is a realistic and sometimes strategic outcome in Crime Commission proceedings. The Commission may agree to lift the restraining order in exchange for forfeiture of some assets. Where the cost of protracted Supreme Court litigation outweighs the value of the contested property, or where the strongest exclusion evidence covers the most significant assets, a negotiated resolution can be the best available result. That was the position here.
The result
The restraining order was lifted and the matter settled. Our client regained access to their assets and the Supreme Court proceedings concluded. In Crime Commission matters, the result is measured by what the person keeps and how quickly access is restored, not by a verdict.
Why the result mattered
A CARA restraint can outlast a criminal case and operates on a lower standard of proof, with the onus on the restrained person. Early action to release funds and to evidence the lawful origin of assets is what turns a freeze into a negotiable position. Without it, the structural advantage sits with the Commission.
What this case shows
Asset recovery proceedings are civil, not criminal, and they do not depend on a conviction. The defence is documentary: tracing the lawful source of each asset and applying to exclude it under s25. Early action to release living and legal expenses is often what makes contesting the proceedings possible at all. Related work is set out on our proceeds of crime and money laundering pages.
Has the Crime Commission contacted you?
Once a restraining order is in place, every day without legal action is a day the person cannot access their own funds or properly prepare a response. Meanwhile the Commission has already built its case. If the NSW Crime Commission has frozen your assets or served you with documents relating to a restraining order under CARA, call JBP Law on 1800 527 529 or book a case review. We handle Crime Commission proceedings in the Supreme Court for clients across NSW.
This case study is provided for general information only and does not constitute legal advice. Every matter depends on its own facts, evidence, and personal circumstances. Past outcomes are not indicative of future results.
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