Confiscation Proceedings - Proceeds of Crime

Both Queensland and the Commonwealth have laws which specifically target the proceeds of crime - the Criminal Proceeds Confiscation Act 2002 (Qld) and the Proceeds of Crime Act 2002 (Cth). Gilshenan & Luton are one of the few firms in Queensland who regularly conduct this type of specialised work.

What is proceeds of crime?

Proceeds of crime legislation empowers State and Commonwealth authorities to bring applications in court to both restrain and forfeit property suspected of being the proceeds of a crime. No criminal conviction is necessary before such orders can be made. Indeed, those the subject of these orders are often not charged at all.

The law in this area is very powerful and often imposes a “reverse onus of proof” upon the accused or respondent to the application. This means that, unlike most criminal cases where the prosecution bears the onus of proof in establishing the charge, in proceeds of crime matters, the accused / respondent to the application must prove that the property sought to be restrained or forfeited is not tainted by crime.

Proceeds of crime applications

Proceeds of crime applications can have devastating consequences: bank accounts can be frozen, cars and other assets of value can be seized, and homes can be sold. Furthermore, unlike most areas of criminal law, strict time limits are imposed on persons seeking to contest a proceeds application. Failure to comply with these time limits can result in the automatic forfeiture of the property to the government.

Like fraud or other white collar crime cases, it is often the case that external experts such as forensic accountants need to be engaged to examine the financial transactions in question and provide a report in support of your defence. This is particularly so in confiscation matters because of the reverse onus of proof.

Court orders

The Court can make the following types of orders:

  • Forfeiture orders;
  • Pecuniary penalty orders;
  • Unexplained wealth orders; and
  • Serious drug offender confiscation orders.

The Court can also issue ‘examination orders’, whereby a person is forced to give evidence on oath about their finances and asset position.    

Money laundering offences

As a separate but related consideration, there is both Queensland and Commonwealth legislation which creates offences for engaging in ‘money laundering’.

Put very briefly, any transaction with ‘tainted’ money (for example, receiving the financial proceeds of crime from another person), or that is intended to conceal or disguise the true source of funds, may amount to money laundering.

The maximum penalties are severe – up to 25 years imprisonment for Commonwealth offences, and 20 years for state offences. In defending such charges, the alleged defendant’s level of knowledge as to the source of the funds is often critical, and once again external expert reports may be necessary.