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AFP ordered to return money to innocent cuckoo smurfing victim under the Proceeds of Crime Act 2002

The AFP attempted to use the Proceeds of Crime Act to restrain property of innocent victims of money laundering. The circumstances of this case were highly suggestive of ‘cuckoo smurfing’. The WA Supreme Ct ordered the AFP to return the innocent victim’s money. I acted for the successful innocent parties in this matter.

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Former Assistant US Attorney Stefan Cassella on Civil Asset Forfeiture

There has been a lot of criticism leveled at authorities in many countries, particularly the US, over the use that is made of civil confiscations or proceeds of crime laws.

Without a doubt there have been abuses of these powers, just as there are from time to time abuses of criminal prosecution processes.

In this article a former US Federal prosecutor makes the case for civil forfeiture. It is a well-written piece by an eminently qualified author.

My only caveat is that I think the abuses that the US has seen have been at the State and County, not Federal, level.

Effect of proceeds of crime orders on sentence

The Western Australian Court of Appeal has delivered an important judgment, R v Host, which considers the proper approach to sentencing an offender whose property has been the subject of orders made under the Proceeds of Crime Act 2002 (Cth). The Court gave detailed consideration to s 320 Proceeds of Crime Act 2002 (Cth). It allows for a sentence to be reduced where the offender has cooperated with proceeds of crime authorities.

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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.

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.

Use of compulsory examination material – High Court decision in Lee v R pending

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.

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