How should the value of frozen property be calculated for purposes of the jurisdictional limits of the Magistrates’ Court (and by extension, the District Court)? The correct calculation has been held to be based on the total value of the frozen property; contrary to previous practice.Read More
Criminal Property Confiscation Act 2000
Timelines and Process
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.
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).
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. Click for overview of the Criminal Property Confiscation Act and frequently asked questions. I have prepared the following timelines for your convenience but I stress that this does not constitute legal advice. The timelines simplify and generalise the process.
Immediate steps to take
Strict timeframes apply for compliance with the Criminal Property Confiscation Act 2000 (WA). Failure to meet timeframes may result in your client's property being forfeited or may constitute a criminal offence.
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.
Make a Statutory Declaration
within 7 days
A statutory declaration must be made, and provided to the Western Australia Police, within 7 days of service. The statutory declaration is not an opportunity to tell the story; rather it serves a narrow purpose.
Lodge an Objection to Confiscation
within 28 days
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.
Your client or any other person may be compelled to attend an examination. The usual rights and protections do not apply.
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.
Preparing for Hearing
Sometimes a settlement may be negotiated. If that doesn't occur, the matter will proceed to hearing.
The objector bears the onus of satisfying the Court that the freezing notice should be set aside on one of the technical grounds in Part 6 of the Criminal Property Confiscation Act.
Objector identifies grounds
The objector must identify which sub-sections within Part 6 of the CPCA he or she will rely upon.
The State identifies its grounds
the State will then identify the grounds upon which it will contest the objection to confiscation. In crime-used and crime-derived matters this will include identifying the confiscation offences relied upon.
Objector files affidavits
All the evidence to be relied upon should be on affidavit and the objector should not assume that there will be an opportunity to give supplementary oral evidence in Court. Affidavits should be prepared having strict regard to the rules of evidence.
State files affidavits
These will typically be from police officers and forensic accountants in the WA Police Proceeds of Crime squad (confiscation team). If necessary the objector will have the opportunity to file responsive evidence on affidavit.
For most matters I favour the filing of an outline of submissions prior to the hearing.
The hearing of the Objection
The witnesses may be cross-examined and legal arguments heard.
Ordinarily the Judge has no discretion whether the freezing notice should be set aside. The objection process is focussed on whether the objector has satisfied the Court in relation to the relevant statutory test.
If the objection is upheld the freezing notice is set aside. The property ceases to be frozen. The owner can deal with the property as normal.
The State will be ordered to pay a proportion of the objector's legal costs. If the property was frozen under a freezing order (rather than a freezing notice) the owner may be able to claim damages.
If the objection is dismissed the property will then be confiscated and vests absolutely in the State. The State will sell it and keep the proceeds.
It is not always the case, but the objector may be required to pay a proportion of the State's legal costs. The objector may consider appeals.
For more information about the Criminal Property Confiscation Act and the relevant procedures and processes you may find these further resources useful.
If you have a specific matter you would like to discuss, please contact me on 0417 921 300. Given the timeframes involved I am prepared to take calls on these matters out of hours.
The WA government has introduced legislation amending the Criminal Property Confiscation Act 2000 (WA) to give the CCC power to investigate and litigate Unexplained Wealth matters. This has potentially significant consequences. I consider those effects.Read More