The Criminal Property Confiscation Act 2000 (WA) has been described as draconian. It significantly affects property rights including those of innocent third parties. It is important for lawyers to act carefully and promptly to protect their client’s interests under the Criminal Property Confiscation Act 2000 (CPCA).
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Information about the Criminal Property Confiscation Act and the relevant legal processes is discussed below.
“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
- Compulsory interviews under s 76 Criminal Property Confiscation Act
- Time limits
- Criminal Property Confiscation Act Statutory Declarations
- How to Object to Confiscation under the Criminal Property Confiscation Act 2000 (WA)
- Determining the Objection
- Criminal Property Confiscation processes
- Notices to Financial Institutions
- Production Order
- Monitoring Order
- Compulsory Interview
- Freezing Notice or Freezing Order Served
- Making a Statutory Declaration
- Filing Objection to Confiscation
- Control and Management Orders
- Release of frozen propertyfor expenses
- Compulsory Examination
- Criminal Trials -Confiscation matter on hold
- Criminal Property Confiscation Act Grounds for Confiscation
- Further Reading
- Criminal Property Confiscation Act Barrister
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.
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.
Criminal Property Confiscation Act Statutory Declarations
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.
How to Object to Confiscation under the Criminal Property Confiscation Act 2000 (WA)
Time frame for an Objection to Confiscation
An objection to confiscation must be filed within 28 days of service of the freezing notice.
File With the Court specified in the Notice or Order
The objection to confiscation must be filed with the Court specified in the freezing notice or freezing order. This could be in the Magistrates’ Court, District Court, or Supreme Court of Western Australia.
Respondent to Objection to Confiscation
The objection to confiscation must name the State of Western Australia as the respondent. The objection should be served on the Director of Public Prosecutions.
Extension of Time
If the objection to confiscation is not filed within 28 days, and the property was not frozen on the Crime-Used ground nor the Crime-Derived ground, the Court can extend the timeframe for lodging the objection. If the property was frozen on Crime-Used and/or Crime-Derived grounds, the time for lodging an objection to confiscation cannot be extended. See generally Centurion Trust Co Ltd v DPP (WA)  WASCA 133 at  per Buss JA (as His Honour then was), Owen JA concurring at . (Special leave refused.)
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.
Determining the Objection
Sections 82 and 83 of the Criminal Property Confiscation Act 2000 (WA) set out the principles that determine whether an objection is upheld or dismissed. When an objection is upheld, the property is released from the freezing order or freezing notice. If an objection is dismissed, the property is confiscated (forfeited) under section 7(2) of the Criminal Property Confiscation Act.
Importantly, there are a number of concepts mentioned in these sections that are defined in the Glossary to the Criminal Property Confiscation Act. The definitions are not always the natural meaning of the words.
Onus of Proof for Objection to Confiscation
All the grounds for objecting place the onus of proof on the objector, that is, the person who claims the ownership of, or an interest in, the frozen property.
Standard of Proof
The standard of proof for objection to confiscation is the balance of probabilities.An objection to confiscation is a civil proceeding for all purposes. The rules of evidence are as they apply in civil proceedings. Questions of fact are accordingly determined on the balance of probabilities. 1
Criminal Property Confiscation 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.
Criminal Property Confiscation Act Grounds for Confiscation
There are 6 grounds on which property can be confiscated under the Criminal Property Confiscation Act 2000 (WA). It is common for the authorities (DPP, WA Police and the CCC) to pursue the same property on multiple grounds.
- Drug Trafficker: section 8
- Crime-Used: section 82
- Crime-Derived: section 83
- Crime-Used Property Substitution: section 22
- Criminal Benefits: section 16
- Unexplained Wealth: section 12
A person who is convicted of possessing 28 grams or more of a number of common illicit drugs including methylamphetamine, MDA, MDMA and others, with an intention to sell or supply it to someone else will likely be declared a drug trafficker at the time they are sentenced in the District Court.
A person who, in a period of 10 years, is convicted three times under the Misuse of Drugs Act 1981 (WA) for possession (selling or supplying) an illicit drug will also be declared a drug trafficker.
When a person is declared a drug trafficker under section 32A of the Misuse of Drug Act 1981 (WA), three categories of property are immediately and automatically confiscated to the State of Western Australia:
- everything they own;
- everything they control or have a beneficial interest in; and
- everything they have ever given away, or sold for less than its full value.
These categories are deliberately broad. The first two categories in particular routinely capture lawfully derived property, including inheritance, and houses paid for using legitimate income.
Property can be frozen based upon a mere suspicion. Once it is frozen, the onus shifts to the owner of the property, or anyone claiming an interest in it. They must prove on the balance of probabilities that the property was not:
- used in;
- intended to be used in; nor
- used in connection with facilitating;
the commission of any offence.
This is not an easy task. Defeating the Crime-Used ground involves proving a negative. It is usually done by showing what lawful purposes the property was used for and intended to be used for in the future.
There is a provision in section 82(3) for undue hardship. However, nobody has ever succeeded to satisfy the seven cumulative criteria to demonstrate undue hardship.
The Crime-Derived ground has substantial procedural overlap with the Crime-Used ground. There is no hardship provision.
The definition of Crime-Derived property spans to three pages of the Act (section 148). Essentially, property is Crime-Derived if it is the profits of criminal activity or was purchased using revenue of criminal enterprise.
Proof that property is not Crime-Derived involves establishing the lawful origin of the property and the funds used to purchase it.
Crime-Used Property Substitution
This is rarely used. If for example, a person rents a house and uses it to commit an offence, other property owned by the person can be confiscated up to the value of the rental property.
The CCC or the DPP can apply to the Court for a declaration that a person has received a benefit from criminal activity. If the Court is satisfied it must assess the value of that benefit. The amount assessed by the Court is due and payable by the person to the State.
These provisions are most frequently used in fraud cases where the money defrauded has since been spent and cannot be easily traced.
The Court can make an Unexplained Wealth declaration where the total value of a person’s wealth exceeds that which they could have lawfully accumulated. The Court will order the person to pay the difference to the State.
These matters rely heavily on accounting analysis of a person’s income and expenditure, and the source of funds used to acquire assets, over a significant period of time. More information about Unexplained Wealth.
For lawyers who would like more information, two of my papers about the CPCA are available for free download:
For some summaries of decisions in this area:
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.
Criminal Property Confiscation Act 2000 (WA) information in other languages:
Criminal Property Confiscation Act Barrister
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.
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.
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.
I am frequently able to offer fixed fee arrangements for responding to a freezing notice and filing objections to confiscation.
To discuss your matter please call me directly on 0417 921 300, or alternatively use the form below to request a call back. I am willing to take calls outside of business hours for urgent inquiries.Footnotes
- Section 102 of the Criminal Property Confiscation Act