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
Proceeds of Crime Act
Cases and Commentary on the Proceeds of Crime Act 2002 (Cth). For further information, review my overview of the Proceeds of Crime Act.
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. […]
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
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
Proceeds of Crime laws and Hardship
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
Property restrained under both section 18 and 19 of the Proceeds of Crime Act 2002
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
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