Legal professional privilege is often taken for granted by lawyers; and for that matter by some clients. This post discusses its application in the context of proceeds of crime and confiscation matters. Lawyers acting in such matters need to be particularly on guard in relation to the privilege. Read more
Confiscations & Proceeds of Crime
If your client is facing proceeds of crime or criminal property confiscation proceedings it is worth getting specialist advice early.
This will allow your client to make an informed decision, and put forward an appropriate settlement offer. This will maximise the prospects of success and minimise the costs and uncertainty of litigation. Read more
Decisions under the Criminal Property Confiscation Act 2000 (WA) about whether property is ‘effectively controlled’ by a person who has been convicted of an offence are relatively rare.
Allanson J has recently published such a decision: Dang v the State of Western Australia  WASC 419. Whilst it contains no new principles it is a useful example of the way the Courts approach effective control. Read more
The NSW Court of Appeal has provided guidance on the approach to costs orders made in favour of people who have successfully defended action under the Proceeds of Crime Act 2002 (Cth): Gwe v Commissioner of the Australian Federal Police (No 2)  NSWCA 350. Read more
The NSW Court of Appeal handed down its decision in Gwe v the Commissioner of the AFP on 2 October 2020. This decision is significant, as it is the first time innocent victims of cuckoo smurfing have been successful in an appellate court. Read more
The Victorian Court of Appeal concluded that there is no mechanism by which ‘hardship’ can be taken into account when property is automatically forfeited as a result of a conviction of a serious offence. Read more
The Supreme Court of Victoria has published a decision, Song v Commissioner of Australian Federal Police  VSC 465, considering the proper construction of s27 of the Proceeds of Crime Act 2002 (Cth) (POCA). Read more
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
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
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