It is important to act both carefully and promptly in order to protect your client’s interests under the Criminal Property Confiscation Act 2000 (CPCA).
Given the urgency of these matters please contact me by telephone onincluding after hours. A comprehensive brief is not required for these matters in the first instance.
“In my time on the Bench I have seldom come across a piece of legislation as perplexing and difficult to construe…The legislation has previously been described as draconian and some of the concepts that emerge from it can justifiably be described as extreme.”The Hon. Justice Owen in Centurion Trust Company v DPP  WASCA 133
I am recognised as an expert barrister in this field. I write the relevant service for LexisNexis. I am able to assist with actions relating to criminal property confiscations in Western Australia as well as analogous matters under other State legislation, and federal Proceeds of Crime Act matters.
The procedures mandated by the CPCA and the relevant Court rules are unusual and complicated. They will be foreign to commercial and criminal lawyers alike. To the client the CPCA can seem grossly unfair and punitive. Innocent third parties may feel they are the victims of the Criminal Property Confiscation regime.
Criminal Property Confiscation Act 2000 time limits
There are very strict time limits which must be complied with to protect the rights of people who own property that has been frozen under the Criminal Property Confiscation Act 2000.
- Once the freezing notice is served, the statutory declaration must be made and lodged within 7 days.
- An objection to confiscation must be filed within 28 days of receiving the freezing notice.
The first step in responding to a freezing notice is to prepare a statutory declaration. This must be done within 7 days. Failure to comply is an offence. It is important to take detailed instructions before the client signs the statutory declaration. In my view the statutory declaration should say no more than what is required by the Criminal Property Confiscation Act.
There is a fine line between not disclosing enough information and disclosing more than is required. Getting it wrong can have consequences down the track when the client is fighting to keep their property.
Objection to Confiscation
The next step to responding to a freezing notice is usually the filing of an objection with the relevant Court. This must be done within 28 days of service of the freezing notice. An objection must not only comply with the Act but also with the relevant Rules of Court.
It is fair to say that there is a tension between what the Act contemplates and what the Rules provide for. To compound the difficulty there are no prescribed forms or publicly available precedents/templates for objections under the Criminal Property Confiscation Act. I have developed my own precedents (which have been accepted by the Courts) which means I can spend my time, and the client’s money, on the substance of the matter and not the technical processes.
Criminal Property Confiscation Act 2000 processes
I have prepared the following timelines for your convenience. The timeline simplifies and generalises the process. Not all steps will apply to all matters. Some matters will involve additional steps.
Notices to Financial Institutions
Banks and the like may be required to give financial information to the WA Police, CCC or the DPP including account statements.
The District Court may order any person to provide property-tracking documents to the DPP or the Corruption and Crime Commission.
The District Court can order a bank or similar to give ongoing real-time account information to the DPP or CCC, and to delay effecting transactions for up to 48 hours.
Your client may be detained and compelled to answer questions pursuant to sections 73 and 76 of the Criminal Property Confiscation Act. There is no privilege against self-incrimination, nor derivative-use immunity.
Freezing Notice or Freezing Order Served
A freezing notice specifies the property which is and is not frozen. It will specify the grounds, but not the reasons, why property is frozen. A freezing order is substantially the same but made by a Court rather than a Justice of the Peace.
Making a Statutory Declaration
A statutory declaration must be made, and provided to the Western Australia Police or CCC within 7 days of service. The statutory declaration is not an opportunity to tell the story; rather it serves a narrow purpose.
Filing Objection to Confiscation
An objection to confiscation must be lodged within 28 days after service of the freezing notice or freezing order. It must be lodged at the Court specified in the notice or order.
Control and Management Orders
The Court may make interim orders for the control and management of frozen property.
Release of frozen property
It is worth considering whether it would be appropriate to seek orders for the release of frozen property to meet business, living and legal expenses. For more information see releasing frozen property.
Your client or any other person may be compelled to attend an examination. The usual rights and protections do not apply.
Criminal Trials –
Confiscation matter on hold
If the owner of the frozen property is charged with a criminal offence, it will usually be in their best interest that the criminal trial proceed first. The confiscation matter may be put on hold, but this is not an automatic right.
Compulsory interviews under s 76 Criminal Property Confiscation Act
Section 76 of the Criminal Property Confiscation Act 2000 gives the Police the power to compulsorily interview people. Although this power overrides the right to silence, the powers of Police officers acting under s 76 are not open ended.
A s 76 interview should always be recorded.
The person being interviewed should ask the Police to allow them to seek legal advice before the interview starts. If Police refuse, the person being interviewed should repeat the request to speak to a lawyer at the start of the recording.
It is also desirable for the lawyer to speak to the Police officers who will be conducting the interview before it starts, to determine whether the s 76 interview power is properly available to Police.
I am available onoutside of business hours in relation to these interviews.
Criminal Property Confiscation Act Barrister
I can assist with efficiently and economically:
- Responding to a Freezing Notice, including compulsory statutory declarations and preparing and filing Objections to Confiscation;
- Responding to a Confiscation application by the DPP or CCC;
- Negotiating settlement with the DPP or CCC; and
- Conducting litigation under the Criminal Property Confiscation Act 2000 (WA) including responding to applications made by the DPP or CCC.
For lawyers who would like more information, two of my papers about the CPCA are available for free download:
- CPCA Crime-Used and Crime-Derived matters
- CPCA Drug Trafficker cases
- Criminal Property Confiscation Act blog posts
The explanatory notes to the Criminal Property Confiscation Act 2000 (WA) can be a useful aid. It can also be useful to consider the WA DPP’s guidelines for confiscation matters. Particularly in the case of crime-used matters these guidelines set out the factors the DPP take into account. The guidelines commence at page 24 of the Statement of Prosecution Policy and Guidelines 2018.
The Hon Wayne Martin AC QC has written a report (at the request of the Government) into the CPCA. He recommends the repeal of the Act. Read more.