You do not necessarily need a lawyer who is a specialist in confiscations and proceeds of crime. You may already have a lawyer helping you with other matters.
However, if you are at risk of losing your property there are advantages in seeing a lawyer who specialises in criminal property confiscation. These are some of the factors to consider:
How much will legal fees cost?
Most lawyers charge by time billing, often in 6 minute increments. Your lawyer will charge for the time they spend researching, considering, and preparing documents for your matter.
If your lawyer usually works in other areas, they will need to thoroughly research the fundamentals of the legislation that relates to your matter (this may be the Proceeds of Crime Act 2002, the Criminal Property Confiscation Act 2000 or Criminal Assets Recovery Act 1990 or another Act depending on where you are located and whether action against you is state or federal), as well as the relevant case law. They will charge you for this research.
If however, you choose a lawyer who specialises in this area, they will not need to do the fundamental or more basic research. They will understand how the legislation works, which cases are important and will be able to immediately look at the specific circumstances in your matter and how the legislation and law applies to you. This is likely to reduce the legal charges that you will need to pay.
Some specialist confiscations lawyers do so much work in this area that they are able to confidently give an estimate up front, and offer you a fixed fee for a particular aspect of a matter. This gives you certainty about the amount you will need to pay.
If you choose a specialist proceeds of crime lawyer, they are likely to have an existing relationship with the criminal assets confiscation task force and the proceeds of crime squad at the federal and state police. They will understand the way that those teams practise and the considerations they must take into account. They will know exactly who to contact to discuss your situation. This means that some matters may be able to be resolved more quickly without having to go to Court.
Do I need a criminal lawyer?
Action under the Criminal Property Confiscation Act, Proceeds of Crime Act and related asset forfeiture regimes is civil, not criminal. While many criminal lawyers will have some awareness of this legislation, it rarely falls within their specialty.
There are a number of important differences in the law relating to proceeds of crime and confiscation matters compared to the criminal law and to other civil matters. Some protections that are common to criminal law matters are not available for matters under asset confiscation and forfeiture legislation. For example, you may be compelled to attend, and answer questions, at a compulsory interview or examination.
So while it may sound like it is criminal law that applies, the court procedures for proceeds of crime matters is civil. Further, the onus is often reversed. That means that you will need to show for example, on the balance of probabilities, that your property is not the proceeds of crime. In almost all criminal matters the prosecution must prove the charge beyond reasonable doubt. A different mindset is required and a far more active defense is needed in proceeds of crime cases. It is useful to have a lawyer who has experience in this area, as they will know exactly what to expect and how to best present your case.
Conflicts with criminal charges
Due to the way that confiscations law works, you may need to tell your proceeds of crime lawyer the full back story. If you are also facing criminal charges, it will seldom be in your best interests for you to tell this full story to your criminal solicitor early on. Doing so may limit the defences available to you in the criminal proceedings. If you have separate lawyers acting for you in any criminal matter and your confiscation matter, each can focus on achieving the best possible outcome in each case.
Which time frames apply?
The confiscations and asset recovery regimes, including the Criminal Property Confiscation Act, include strict time frames that must be complied with. If your documents are not filed at the correct place within the correct time frame, you may lose the opportunity to fight for your property. This means the government will take your property and you will not be able to get it back.
Choosing a Proceeds of Crime lawyer
When you are deciding which lawyer to choose you may wish to ask them how often they deal with cases like yours.
I am a barrister specialising in Proceeds of Crime and Criminal Property Confiscation. I have extensive experience giving advice to and representing people affected by confiscation legislation. I am also able to recommend solicitors in Perth and around Australia who are experienced with matters involving the:
- Proceeds of Crime Act 2002 (Cth)
- Criminal Property Confiscation Act 2000 (WA)
- Criminal Assets Recovery Act 1990 (NSW);
- Confiscation Act 1997 (Vic);
- Criminal Property Forfeiture Act (NT);
- Serious and Organised Crime (Unexplained Wealth) Act 2009 (SA);
- Criminal Proceeds Confiscation Act 2002 (Qld); and
- Crime (Confiscation of Profits) Act 1993 (Tas).
Further information about Proceeds of Crime and Criminal Property Confiscation
For specific information about Proceeds of Crime and Criminal Property Confiscation, please review my guides below.
Alternatively, you are welcome to contact me on 0417 921 300 regarding your specific matter.
If you or your client has received a notice from the Criminal Assets Confiscation Task Force of the Australian Federal Police please click below for further information.
If you or your client has received a notice from the Proceeds of Crime squad of the West Australian Police please click below for further information.