The legal status of cryptocurrency has been the subject of some debate amongst lawyers, judges and legal academics.
Recent amendments to the Proceeds of Crime Act 2002 (POCA) suggest that the Act is intended to apply to cryptocurrency. Read more
Confiscations & Proceeds of Crime
Hardship relief under the Proceeds of Crime Act
The Victorian Court of Appeal has recently considered the law in relation to hardship relief under the Proceeds of Crime Act 2002 (Cth) (POCA). Sections 47, 48 and 49 of the POCA provide for forfeiture of property in certain circumstances. In some scenarios the Court will have a discretion to order (or not order) forfeiture. […]
Registering foreign forfeiture orders in Australia
The Mutual Assistance or MA process (sometimes also called MLAT, for Mutual Legal Assistance, process) is often used by law enforcement and prosecution authorities in relation to criminal prosecutions. Australia like many countries allows use of the process for proceeds of crime matters as well. Read more
Restraining orders under the Criminal Assets Confiscation Act 2005 (SA)
The Supreme Court of South Australia has published an important decision about the Criminal Assets Confiscation Act 2005 (SA) (CACA). In Director of Public Prosecutions v Drazetic [2022] SASC 35, Parker J has held that the CACA does not permit the DPP to obtain an order that restrains (freezes) all property that is owned and/or suspected to effectively controlled by an accused. Read more
Proposed examinees are entitled to notice of applications for compulsory examination orders
The WA Court of Appeal has provided perhaps the clearest warning yet that orders for compulsory examination under the Proceeds of Crime Act 2002 (Cth) should not ordinarily be made without notice to the proposed examinee. Read more
Legal Professional Privilege and Proceeds of Crime
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
Settling confiscations & proceeds of crime matters
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
Effective Control under the Criminal Property Confiscation Act
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 [2020] WASC 419. Whilst it contains no new principles it is a useful example of the way the Courts approach effective control. Read more
Costs orders and the Proceeds of Crime Act 2002
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) [2020] NSWCA 350. Read more
Success for an innocent party under the Proceeds of Crime Act 2002 (Cth)
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