Should police be able to seize suspected proceeds of crime before a person is found guilty?


When it comes to seizing suspected proceeds of crime, tough new laws introduced in Victoria mean that police have the ability to seize all the assets of suspected persons, not just assets connected with criminal activity.

To get hold of a person’s assets, police can use one of two methods:

  1. Conviction-based recovery, which involves waiting until the end of criminal proceedings and hoping that the defendant is found guilty, or
  2. Non-conviction-based recovery, which can be used at any time.

The existence of non-conviction-based recovery means that police don’t even need to prove a person guilty before they can take their property.

Non-conviction-based recovery is generally preferred as it is easier to get a successful outcome, and is usually much quicker than waiting for a verdict.

It is easier because police only need to prove the case “on the balance of probabilities”, which is the civil standard of more than 50%, rather than the criminal standard of “beyond reasonable doubt”.

And tough new laws in Victoria effectively reverse the onus of proof, meaning that it is up to the defendant to prove “on the balance of probabilities” that goods are not proceeds of crime, rather than the prosecution having to prove that they are, which clearly undermines the presumption of innocence.

But what happens if you are involved in both civil and criminal proceedings which essentially involve the same set of circumstances, and in order to protect your assets you must give evidence that could harm your prospects at trial?

The story of Jin

This was exactly the predicament faced by Melbourne-based Xing Jin.

Jin is charged with dealing with at least $100,000 from the earnings of illegal sex workers, and has been restrained from selling his property and company car.

Police sought to use the civil-recovery method against him.

His wife, although not charged, has also been restrained from selling another property.

But Jin argued that the property should not be seized until the charges against him are finalised; in other words, that police should not be allowed to use the non-conviction-based recovery method.

This, he argued, is because civil proceedings would force him to explain how he came into possession of his properties, which is of course directly relevant to the criminal offences he is charged with.

He would thereby have to give up his right to silence and reveal his defence to the criminal charges in order to protect his assets.

This, it was argued, has the potential to unfairly prejudice his criminal case.

The Victorian Court of Appeal agreed with Jin that the concurrent proceedings were unfair, and the High Court of Australia also came to that conclusion.

This case means that for future cases where a civil case is strongly related to a criminal one, the police will not be able to go ahead with non-conviction-based recovery methods.

There are currently 43 Victorian case will are likely to be affected by this result, including the case involving Jin’s mother.

Senior Counsel David Neal, who acted for police, is disappointed because he believes that the decision will allow suspects to prevent police from seizing proceeds of crime for years while their criminal cases drag on.

But, in the eyes of the courts, the greater concern is the erosion of fundamental protections such as the presumption of innocence and right to silence. Specifically, civil proceedings should not be allowed to provide prosecutors with a roundabout method to force the disclosure of a person’s criminal defence.

The Impact

Although the High Court’s decision was about Victorian legislation, it has the potential to substantially impede non-conviction-based recovery methods nationwide when there are concurrent criminal proceedings.

It means that police will need to think twice before they commence such proceedings, and that defendants may have a way to resist seizure pending the determination of their criminal cases.

Good in Custody Laws in NSW

As outlined in previous posts, the erosion of the presumption of innocence and shifting of the onus of proof has been a feature of many legislative changes in NSW over the years.

For example, section 193C of the Crimes Act 1900 (NSW) makes it a crime to possess or deal with property that is suspected to be the proceeds of crime.

Under that section, if police reasonably suspect that property is derived from crime, it is then up to the defendant to prove on the balance of probabilities that it has been lawfully obtained.

But although that offence represents a shift in the onus of proof and undermines the presumption of innocence, the fundamental difference is that non-conviction based seizure additionally causes defendants to be put in a position whereby they need to give up their right to silence before their criminal case is heard in court if they want to keep their assets.

There will be more to come

Although the High Court decision is a setback for police, we will surely be treated to further sneaky methods and tenuous justifications in the seemingly never-ending quest to erode our fundamental protections.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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