If you have been convicted of a serious offence, such as drug trafficking, or fraud, there is the very real prospect that the prosecution will apply to the court for a confiscation order for the proceeds of your crime.
Under such an order, the courts are allowed to confiscate any of your property, freeze any of your assets, or impose a pecuniary penalty for an amount that was derived as a result of your offence. If you have been convicted of a serious crime that resulted in you gaining significant profit, and a confiscation order seems to be a likely outcome of your court case, it is highly recommended that you hire an expert proceeds of crime barrister who specialises in this field of law.
It is also important to note that you don’t have to be convicted of a crime to run afoul of proceeds of crime laws. Under section 193C of the Crimes Act 1900, you can be charged with the criminal offence of dealing with the proceeds of crime if you receive any money or property that could reasonably be suspected to be the proceeds of crime, even if you had no hand in the illegal activity.
This area of law is particularly complex, and the consequences can have a significant impact on your life, which is why having experienced legal counsel is so important.
Confiscation or forfeiture of proceeds of crime on conviction
If you have been convicted of a serious criminal offence, from which you have derived profits, whether funds, property, or other assets, some government agencies can apply to the court to acquire these proceeds of crime. This is based on the public policy that a person should not be able to benefit from their illegal activities. This can extend not simply to current assets, but also future ones. For example, one of the most highly publicised recent proceeds of crime cases was that of convicted Australian drug smuggler Schapelle Corby, who was restricted from selling her story to the media or a publisher and profiting from her crime.
There are four pieces of legislation that allow the Australian Crime Commission, the police, and the Director of Public Prosecutions (DPP) to restrain, seize and forfeit assets that have been acquired using money or funds derived from criminal activities.
- The Proceeds of Crime Act 1987.
- The Proceeds of Crime Act 2002.
- The Criminal Assets Recovery Act 1990.
- The Confiscation of Proceeds of Crime Act 1989.
These laws also allow the agencies to apply for orders that require you to pay an amount assessed by the court as the potential value of the proceeds derived by you from the illegal activity. The powers of these agencies are wide ranging. You can be examined before the court on all financial affairs, and it’s not just your own property, assets or accounts that are at risk, but also those of any family members.
There are defences to confiscation order applications. It is useful to show that your assets or property were derived from legitimate funds. Another defence may be that the forfeiture or confiscation sought is disproportionate to the nature and extent of your offence. A proceeds of crime barrister not only has the expertise in case law to argue this type of defence, but also tends to have access to a strong team of accountants and auditors to assist in examining your books and providing you the best defence in concrete numbers.
Dealing with property as the proceeds of crime
Even if you are not involved in the illegal activity, dealing with property which can reasonably be suspected to be the proceeds of that illegal activity is also a criminal offence. As it is a summary offence, the maximum penalty is two years’ imprisonment on conviction, and the matter is dealt with in the local court. For example, you may have a family member that has been convicted of drug trafficking. If they have previously placed large sums of money over a period of time into your bank account, there are reasonable grounds to suspect that the money in your account was derived from drug supply. You dealing with that money (dealing can be simply keeping the money in your account) amounts to a s193C offence.
In addition, the police or the DPP can apply to confiscate the property that is the subject of the offence at your own loss. In the example above, the money can simply be taken from you.
Defences to this charge
You can defend the charge if you can show the court that you “had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory”.
Proving this complex argument in court requires a strong defence team with a highly qualified proceeds of crime barrister as counsel. It requires careful analysis of the police evidence, and usually needs defence witness testimony.
Proceeds of crime applications, and arrests under s193C, are becoming more common. They can be even more damaging than the conviction, particularly for the former. Property can be seized not just from the offender, but also from family members, assets can be frozen, and the pecuniary penalties can be significant. This is an area of law where legal expertise can make a difference to the outcome, and the financial effects.