On 5 November 2014 the High Court in Wellington Capital Limited v ASIC held a responsible entity could not distribute property in specie to managed investment scheme unit holders.
The maximum penalty for possessing stolen or unlawfully obtained property (including cash) under the Criminal Code (WA) has recently been increased. The offence is now an either way indictable charge.
Criminal Property Confiscation and Proceeds of Crime CPD – 6 November 2014
The Law Society of Western Australia is offering a CPD (CLE) seminar on Confiscations and Proceeds of Crime to be held in Perth on 6 November 2014. This seminar will include a detailed look at both the Proceeds of Crime Act 2002 (Cth) and the Criminal Property Confiscation Act 2000 (WA).
The seminar will be chaired by the Hon Justice Hall. Darryl Ryan from Chelmsford Legal will give an overview of each Act. Michael Seaman from the Office of the Director of Public Prosecutions Western Australia will focus specifically on the rights of third party claimants under the Criminal Property Confiscation Act 2000 (WA).
My session will explore the typical interlocutory steps in litigating a matter under either the Criminal Property Confiscation Act 2000 (WA) or the Proceeds of Crime Act 2002 (Cth). I am approaching the issues from the perspectives of lawyers acting for a suspect or a third party (be it a spouse, a bank, a business partner, a tenant or otherwise). Rather than focusing on what the legislation says, I will be looking at what you need to do. For instance: tips on taking initial instructions, and how to get paid.
For more information, view the information sheet from the Law Society of Western Australia or book online.
The High Court has in a 6:1 decision, Tajjour & Ors v The State of New South Wales, upheld the validity of consorting laws found in section 93X of the Crimes Act 1900 (NSW). Mr Tajjour unsuccessfully argued that s 93X was invalid on the ground that it infringes the implied freedom of political communication.
Last Week Tonight with John Oliver: Civil Forfeiture (HBO)
A US comedy sketch takes a look at civil forfeiture.
Some of the risks identified in the programme are present in some Australian laws. There is however less direct incentivising of Australian Police. In the US some county forces can keep up to 100% of the property they seize. That is not the case in Australia.
The presumption in favour of forfeiture is found in some Australian laws, including the Criminal Property Confiscation Act 2000 (WA). This means the onus is on the owner of the property to show the property should not be confiscated, rather than the other way around.
Courts have applied Lee v R with some interesting results. Analysis of recent decisions considering X7 v ACC, Lee v NSW Crime Commission and Lee v The Queen, including Bartlett v The Queen and Zhao & Jin v Commissioner of the Australian Federal Police.
Practical steps for injunction applications: Tips for preparing and structuring an injunction application to maximise efficiency and likelihood of success plus tips to minimise risk in the long term.
Proceeds of Crime and Confiscation legislation is designed to deprive offenders of ill-gotten gains. Where the legislation is silent on the issue of victims rights, victims may be able to seek equitable relief.
The High Court granted special leave in Henderson v Queensland on 16 May 2014. If the appeal is successful it will amount to a significant erosion of the reverse onus (in relation to lawful origin) found in most Australian confiscation statutes.
U.S. Presses St. Kitts to Better Monitor Its Citizenship Program
The hypothetical scenario I detailed in my blog post of 3 May 2014 bears similarity to the situation currently playing out between the United States government, various sanctioned banks including in Iran and the tiny Caribbean nation of St Kitts and Nevis.
For more information see The Wall Street Journal article “U.S. Presses St. Kitts to Better Monitor Its Citizenship Program”.
The High Court in Lee v The Queen has quashed convictions on the basis that compulsory confiscations examination transcripts were improperly shared with prosecutors. The Court unanimously held there had been a miscarriage of justice and has ordered a retrial.
Are you prepared for the new AML/CTF compliance obligations? Click to read more.
This is a useful summary of changes to the customer due diligence requirements of the AML/CTF Rules.
The changes come into effect from 1 June 2014 however an implementation period applies until 1 January 2015.
The NSW Crime Commission disclosed transcript of Mr Lee’s compulsory examination to the Police and the Crown Prosecutor in his criminal trial. Mr Lee was convicted. The New South Wales Court of Criminal Appeal dismissed his appeal against conviction. He appealed to the High Court and it is that decision which is now to be handed down on 21 May 2014.
The High Court has upheld the validity of NT legislation that is substantially modelled upon the Criminal Property Confiscation Act 2000 (WA). The door appears closed on Chapter III / Kable challenges to the WA Act but other challenges may be open.
In addition to civil penalties, failure to report a suspicious matter can also expose a reporting entity to a criminal prosecution for money laundering.