The convergence of family law with criminal property confiscation or proceeds of crime proceedings can complicate matters for both criminal & family lawyers. I set out some basic principles and considerations when your client is affected by both family law and confiscation or proceeds of crime proceedings.Read More
Criminal Property Confiscation Act 2000
Overview and FAQ
…the Criminal Property Confiscation Act 2000 (WA) is an Act that lacks coherence and, for that reason, is drafted unsatisfactorily. These are powerful reasons to conclude that the disputed question of construction of section 7 of the Act should be resolved by preferring the construction adopted by the majority in the Court of Appeal in this matter that limits the cases in which there is … confiscation of property.
There are five very different streams that run through the Criminal Property Confiscation Act 2000 (CPCA). They provide for confiscation in different but often overlapping scenarios.
The CPCA was introduced in the run up to a state election as part of a 'tough on crime' campaign. Many of the underlying polices are undoubtedly harsh. The problems identified by Justice Hayne above are largely the result of the speed at which the CPCA was drafted. This complicates litigation under the Act.
Judges seldom have discretion to consider what may be fair and just in the circumstances. If the property is found to satisfy certain criteria it will be confiscated. The process is entirely civil and nobody need be charged or convicted for confiscation to occur. The onus of proof is usually on the owner of the property or interest.
There are five streams to the Criminal Property Confiscation Act 2000. I briefly explain them below.
This stream is concerned with property that has been used in connection with an offence, or property on which an offence was committed (crime-used) and what can colloquially be described as ‘profits’ of crime (crime-derived). Each is very broadly defined. Property can become crime-used even before a crime has been committed. Property can be frozen (and confiscated) even if no one has ever been charged with a criminal offence.
It is vitally important to object to confiscation within 28 days of becoming aware of a freezing notice under this stream – or else the property will be irreversibly confiscated. It is also important to define the issues in this type of litigation early, as the onus is on the owner of property to prove a negative. The owner needs to know what negative they must prove with precision at the outset. This stream can be used against an owner of property who was not the one committing the crime. The owner will bear the onus of proving their innocence in the sense of lack of awareness of the crime.
The name is misleading; a person can satisfy the definition of drug trafficker without ever selling or trafficking in drugs. This is the only stream of the CPCA that is concerned with whether someone has been convicted. Most commonly it applies to anyone who is convicted of possessing more than the prescribed quantity of a prohibited drug with intent to sell or supply it (contrary to s 6(1) Misuse of Drugs Act 1981), or of cultivating more than 20 cannabis plants (contrary to s 7(1) Misuse of Drugs Act). The prescribed quantity varies for different prohibited drugs. It is 28 grams (an ounce) for a number of common drugs such as cocaine, methylamphetamine, MDA and MDMA. Someone can also be declared a drug trafficker on their third serious drug offence conviction in 10 years.
When a person is declared a drug trafficker all property they own, all property they control, and all property that they have ever given away automatically vests in the State. The DPP will usually apply to an appropriate Court (the Supreme Court in the case of land) for a specific declaration that specific property has vested in the State. Property that has no connection whatsoever with any crime (such as an inheritance) will still be confiscated if owned by the offender at the time of their sentencing.
Conceptually, Unexplained Wealth (or UEW) is quite simple. The devil is in the detail. The onus is on the individual to show that their wealth is lawfully acquired. The State does not so much as allege a crime.
This stream has been dormant since 2011. In July 2018 the Corruption and Crime Commission (CCC) was given the power to investigate and litigate Unexplained Wealth under the Criminal Property Confiscation Act (WA). The CCC has been scoping targets since at least August 2017.
Criminal Benefits Declaration
This stream is perhaps most naturally used with fraud and fraud like offences, but is not expressly limited to any category of offence. There is no need for a conviction. If the Court is satisfied that a person has obtained a benefit or advantage as a result of the commission of a crime it can declare the value of the benefit. The amount becomes a judgment debt enforceable by the State using the usual methods, but also enforceable via the powers (such as freezing orders) under the CPCA.
Crime-used property substitution
This stream is unusual; it has no parallel in Federal law. Again there is no need for a conviction. The stream applies where the Court is satisfied a person (X) has used property to commit an offence, but that property is not available to be confiscated. This is usually because the property was in fact owned by an innocent third party who was as much a victim of the offence as anything (Y). The Court asses the value of Y’s property that was used in the offence. The wrongdoer is then liable to the State for that amount which may be recovered as a judgment debt or via the powers (such as freezing orders) under the CPCA.
Frequently Asked Questions
The police can't prove...
The onus is seldom on the State to prove anything. The property owner will often have to prove their innocence and/or that the property is not tainted.
What do I put in the statutory declaration?
The real question is what do you not put in the statutory declaration. This is not an occasion to tell your story. It is important to strike the right balance.
What about my inheritance?
Under the drug trafficker and crime-used regimes even property inherited from a law-abiding grandmother will be confiscated.
I missed the 28 day objection deadline. Does that matter?
While there are some circumstances where the property can be permanently confiscated if you miss the deadline, there may be some options available to you dependent on the circumstances. It is important to get legal advice as soon as possible.
I'm innocent! How can they take my house?
Property is frozen prior to innocence or guilt being decided. Being found not guilty does not always mean you'll get your property back.
Is the CPCA constitutional?
For the main part - yes. The High Court has said that the constitutional rule about acquisition of property on just terms does not apply. There may be some other technical arguments which could be run. However even if successful this may not ultimately change the outcome.
What do I do next?
It is important to get legal advice as soon as possible to ensure your property is protected.
Isn't it duplication to have a barrister and a solicitor?
The roles of barristers and solicitors are different. A specialist barrister greatly reduces the amount of research the client needs to pay for. This can ultimately result in lower bills and better outcomes.
Further CPCA resources
For a practical approach to the Criminal Property Confiscation Act 2000 review the CPCA timelines and processes page. This page sets out timelines of actions in matters under the Criminal Property Confiscation Act.
It can also be useful to consider the explanatory notes to the Criminal Property Confiscation Act and the WA Director of Public Prosecutions guidelines for confiscation matters. The guidelines are found in the Statement of Prosecution Policy and Guidelines (linked at right on desktops or below on mobile) at page 43 and following.
In 2017 I was asked by the ECU Law School to be an external examiner of an honours thesis in relation to aspects of the Objection process under the CPCA. I endorse the conclusions of Joel Bond's thesis.
Further resourcesExplanatory notes to the CPCA 2000 (WA)
WA DPP statement of prosecution policy and guidelines 2005 from page 43 onwards
Bond, J (2018) To what extent do the objection to confiscation provisions in the CPCA protect the family home
Presentation on Drug Trafficker Cases under the Criminal Property Confiscation Act 2000 (WA) by Edward Greaves. Full text paper available for free download.Read More
Courts have applied Lee v R with some interesting results. Analysis of recent decisions considering X7 v ACC, Lee v NSW Crime Commission and Lee v The Queen, including Bartlett v The Queen and Zhao & Jin v Commissioner of the Australian Federal Police.Read More
Proceeds of Crime and Confiscation legislation is designed to deprive offenders of ill-gotten gains. Where the legislation is silent on the issue of victims rights, victims may be able to seek equitable relief.Read More