I accept briefs on matters concerning financial and complex crime, both for prosecution and criminal defence.
From 2005 – 2008 I was a Senior, and then Principal Federal Prosecutor in the Commercial Prosecutions Branch of the office of the Commonwealth Director of Public Prosecutions. All the matters I worked on were financial and in one form or another they were all complex. In the main they were prosecutions under the Corporations Act 2001 (Cth) brought following extensive investigation by the Australian Securities and Investments Commission.
Subsequently I took on the role of Deputy Counsel with the Australian Federal Police. My responsibilities included the administration of the Proceeds of Crime Act 2002 (Cth). On a daily basis I was concerned with complex questions of statutory interpretation in the context of financial (and often complex) crime.
Some of the cases I argued in these roles are listed in the Judgments section of this site.
White collar crime
I do not limit this practice area to ‘white collar’ crime, indeed it is a term that I consider generally unhelpful. The problem with the classification is that it focuses on the characteristics of the accused, or the kind of accused who are perceived as most likely to commit the crime. I accept instructions in matters that are traditionally classified as ‘white collar’.
Financial crime can range from fraud to breach of directors duties to criminal cartels. Less well known categories are environmental crime and various forms of slavery.
Federal Money Laundering offences are found in Division 400 of the Criminal Code (Cth). They are drafted in very broad terms. They can capture a person who merely possesses property that is the “proceeds of crime”. That term is itself defined broadly to include property that is indirectly, and even only in part, derived from an indictable offence against a Commonwealth, State or Foreign law. Technically a money laundering offence can be brought against a person who merely possesses proceeds of an offence they committed without more. The Courts however have been scathing of such prosecutions, see for example Nahlous v R.1 Penalties for money laundering can be up to 25 years imprisonment, often more than the underlying offence.
Money laundering prosecutions can raise complex issues, including of statutory interpretation. See most recently the High Court’s analysis of how the money laundering provisions operate in the context of an instrument of crime; Milne v R.2
Complex crime is even more amorphous. It includes most types of financial crime and to name a few others:
- war crimes,
- child sex offences outside Australia, and
- a range of immigration offences found in the Migration Act 1958 (Cth)
The prosecution or defence of an otherwise legally and factually straightforward offence can also be complicated by unusual procedures. For instance extradition or the need to take evidence either under Commission or pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Foreign Evidence Act 1994 (Cth).
My approach to complex crime
The common features of complex crime may include:
- complex concepts of criminality,
- unique provisions for proof,
- complex definitions,
- lack of case law on the interpretation and scope of the offence provisions.
Before advising a client, whether prosecution or a defendant, on any complex criminal charge, I will undertake a careful and detailed analysis of:
- the legislation (including legislation relevant to proof)
- its constitutional foundation,
- any basis in international treaty,
- traditional extrinsic materials (explanatory memoranda, law reform commission reports etc),
- any case law.
Thereafter careful analysis of the availability, admissibility and reliability of the evidence is called for, in much the same was as with any other criminal matter.
It is also wise to consider the objects of the offence provision and how they relate to the facts. The prosecution must always consider the public interest of any matter. In some complex areas the legislature will cast the net wide and leave it to prosecutorial discretion to identify which cases deserve to be prosecuted.