The Supreme Court of Victoria has published a decision, Song v Commissioner of Australian Federal Police [2020] VSC 465, considering the proper construction of s27 of the Proceeds of Crime Act 2002 (Cth) (POCA). Read more
Blog Posts
COVIDSafe App
This blog post details the legal structure that underpins the COVIDSafe app (colloquially the COVID tracking app) released for Apple App Store and Google Play Store by the Australian Government Department of Health on Sunday 26 April 2020. Read more
High Court’s decision in Smethurst v Commissioner of Police (AFP)
While the High Court found the search warrant was invalid this is something of a hollow victory for Ms Smethurst. The High Court did not grant injunctive relief or damages. While the High Court found that the search warrant was invalid, there’s nothing in this decision to prevent the AFP from making use of the information gained from it. Read more
Criminal Property Confiscation Act report by the Hon Wayne Martin
The Hon Wayne Martin AC QC’s report on the Criminal Property Confiscation Act 2000 (WA) was tabled in the Western Australian Parliament in December 2019. Mr Martin made a number of recommendations including the complete redrafting of the Criminal Property Confiscation Act, and introducing a discretion to decline confiscation in the public interest. Read more
Lordianto & Kalimuthu: Rights for Innocent Parties under the Proceeds of Crime Act 2002 (Cth)
The High Court found against both Mr and Mrs Lordianto and Mr and Mrs Kalimuthu. The judgment does not preclude success for other innocent cuckoo smurfing victims. It is a question of fact, analogous to the concept of a bona fide purchaser for value without notice. Read more
Cuckoo Smurfing: Special Leave Granted in both Lordianto and Kalimuthu
Lordianto and Kalimuthu are factually similar matters. Both involve cuckoo smurfing victims. In both cases the Australian Federal Police restrained (froze) the bank accounts of the applicants, Lordianto, and Kalimuthu, under the Proceeds of Crime Act 2002 (Cth) despite not alleging any criminality by Lordianto or Kalimuthu. On 22 March 2019 both Lordianto and Kalimuthu were granted special leave to appeal to the High Court. Read more
AFP v Kalimuthu: Another Cuckoo Smurfing victim loses under the Proceeds of Crime Act 2002
The WA Court of Appeal has handed down an extensive decision in the matter of AFP v Kalimuthu. The WA Court of Appeal found that it was bound to follow the decision of the NSW Court of Appeal in AFP v Lordianto. Accordingly, the Commissioner of the AFP was successful on appeal. I provide a summary of the judgment. Read more
Lordianto v Commissioner AFP: Cuckoo Smurfing victim loses appeal under the Proceeds of Crime Act 2002
In Lordianto v The Commissioner of the Australian Federal Police the Court of Appeal found in favour of the AFP and against the cuckoo smurfing victims. This decision has implications for numerous other matters before the courts across Australia involving alternative remittance and structured deposits. Read more
Proceeds of Crime: Interaction with Insolvency and Taxation
The Proceeds of Crime and Criminal Property Confiscation Acts may affect the administration of personal bankruptcies and insolvent companies. There will often be a tax component to this. There are a smattering of statutory provisions that are not entirely consistent, as well as a number of gaps in the legislation. The interaction of proceeds of crime legislation, tax and insolvency should be carefully considered by practitioners. Read more
Innocently acquired inheritance confiscated under the Criminal Property Confiscation Act 2000
The scope of the Criminal Property Confiscation Act 2000 (WA) is broad. All property owned by a person declared a drug trafficker is liable to be confiscated. This includes a beneficial interest in a deceased estate, even where the property of the deceased was acquired legally. Read more