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Confiscations and Proceeds of Crime

I am recognised as an expert in the field of criminal property confiscations and proceeds of crime. I represent the government, suspects and third parties.

I have significant experience with the Proceeds of Crime Act 2002 (Cth) and the Criminal Property Confiscation Act 2000 (WA).

Criminal Property Confiscation Act

I regularly advise private clients on the drug trafficker declaration, crime-used and crime-derived property aspects of the Criminal Property Confiscation Act 2000 (WA).

I have advised suspects as well as financial institutions and innocent third parties on confiscations and their rights under the Criminal Property Confiscation Act.

Click for information on steps to take if a client is served with a freezing notice under the Criminal Property Confiscation Act

Proceeds of Crime Act

From 2008-2014 I led the Commonwealth Proceeds of Crime litigation team in Western Australia (with responsibility for Western Australia, South Australia and the Northern Territory). I was the most senior lawyer and managed a team of lawyers conducting litigation under the Proceeds of Crime Act. We worked cooperatively with the Western Australian Director of Public Prosecutions and the Western Australian Police who conducted matters under the Criminal Property Confiscation Act.

In that capacity I acted as counsel in:

  • numerous restraining order applications;
  • revocation and set aside applications;
  • exclusion applications;
  • Constitutional challenges, including at the appellate level; and
  • final order applications for forfeiture and pecuniary penalty orders.

Click to view judgments handed down in some of the above matters.

In January 2015 the Australian Federal Police commissioned an independent external review of its Proceeds of Crime arrangements. I was put forward by the AFP to the reviewer as an external subject matter expert.

Third parties

As well as being available to advise defendants and government agencies, I am also available to advise third parties whose interests may be affected by actions under the Proceeds of Crime Act and Criminal Property Confiscation Act; for example, financial institutions and liquidators.

Australian Taxation Office

The Australian Taxation Office has an increasingly significant role in confiscations and Proceeds of Crime matters. I have worked extensively with the ATO and am familiar with their processes, in particular:

  • Departure Prohibition Orders;
  • the use of ‘garnishee like’ notices under Division 260 of the Taxation Administration Act 1953 (Cth); and
  • freezing orders.

I have provided advice to, and in relation to, high net worth individuals on these issues.

Time limits

There are very strict time limits which must be adhered to in order to protect the client’s interests (particularly with freezing notices under the Criminal Property Confiscation Act). If your client has been or expects to be served with any notice or order under the Criminal Property Confiscation Act or Proceeds of Crime Act it should be dealt with immediately. I am able to be contacted on 0417 921 300 outside of business hours.

The first step in responding to a freezing notice is to prepare a statutory declaration for the client. This must be done within 7 days. Failure to comply is an offence. It is important to take detailed instructions before the client signs the statutory declaration. In my view the statutory declaration should say no more than that which is required by the Criminal Property Confiscation Act. There is a fine line between not disclosing enough information and disclosing more than is required.

The next step to responding to a freezing notice is usually the filing of an objection with the relevant Court. This must be done within 28 days of service of the freezing notice. An objection must not only comply with the Act but also with the relevant Rules of Court. It is fair to say that there is a tension between what the Act contemplates and what the Rules provide for. To compound the difficulty there are no prescribed forms or publicly available precedents/templates for objections under the Criminal Property Confiscation Act. I have developed my own precedents which means I can spend my time, and the client’s money, on the substance of the matter and not the technical processes.

More information

The Proceeds of Crime Act 2002 was enacted in response to an ALRC report entitled Confiscation that Counts. The report is a useful aid to understanding the Act. Other extrinsic material can be found on the Parliamentary home page for the Proceeds of Crime Bill 2002.

Similarly the explanatory notes to the Criminal Property Confiscation Act 2000 (WA) can be a useful aid. It can also be useful to consider the WA DPP’s guidelines for confiscation matters. Particularly in the case of crime-used matters these guidelines set out the factors the DPP take into account. The guidelines commence at page 43 of the Statement of Prosecution Policy and Guidelines 2005.

For more information on this practice area, please see the following papers I have delivered on these topics:

A Law Society WA CPD session ‘Criminal Property Confiscation and Proceeds of Crime Laws: Practical application of the CPCA and POCA and management of confiscation actions’.

A Legalwise seminar ‘Criminal Property Confiscation Act 2000: Drug trafficker cases’.

Goldfinger

One of my more interesting confiscation cases, Goldfinger, is the subject of an article in Brief. This case involved the forfeiture of approximately USD 24 million in assets, predominately in gold bullion. The property was forfeited on the basis that it was the proceeds of an unlicensed online remittance service, in effect an unregulated bank; see Ex Parte the Commonwealth DPP [2010] WASC 277. I was conferred with a US Attorney’s Award for my cooperation with the United States Government on this matter.

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