The WA Court of Appeal has handed down an extensive decision in the matter of AFP v Ganesh Kalimuthu. The WA Court of Appeal found that it was bound to follow the decision of the NSW Court of Appeal in AFP v Lordianto. Accordingly, the Commissioner of the AFP was successful on appeal. I provide a summary of the judgment.Read More
Criminal Property Confiscation
& Proceeds of Crime
The Athenian lawmaker Draco is reputed to have imposed for all offences, even the most trifling, the penalty appropriate for the most severe [death] so that there was only one punishment.
Asset forfeiture regimes are often described as draconian. However Draco imposed his punishments on offenders, not innocent victims. Asset forfeiture laws often also adversely affect innocent third parties.
Common themes of modern asset forfeiture across Australia and the world include reversal of the onus of proof, no right to silence, harsh deeming provisions and the ability for the authorities to take action even when nobody has been convicted or even charged.
warning Strict time limits apply: as little as 7 days to comply with obligations or protect interests.
Proceeds of Crime Act 2002 (Cth)
The Criminal Asset Confiscation Task Force led by the Australian Federal Police is responsible for most matters under the federal Proceeds of Crime Act 2002.
Criminal Property Confiscation Act 2000 (WA)
The WA Police Proceeds of Crime Squad investigate matters under the CPCA. A dedicated team of lawyers at the DPP (WA) deal with the litigation.
Similar legislation exists in all states and territories. For example, the Northern Territory Criminal Property Forfeiture Act largely replicates the WA Act. I am able to advise and appear in all jurisdictions.
Asset forfeiture blog posts
In Lordianto v The Commissioner of the Australian Federal Police the Court of Appeal found in favour of the AFP and against the cuckoo smurfing victims. This decision has implications for numerous other matters before the courts across Australia involving alternative remittance and structured deposits.Read More
The Proceeds of Crime and Criminal Property Confiscation Acts may affect the administration of personal bankruptcies and insolvent companies. There will often be a tax component to this. There are a smattering of statutory provisions that are not entirely consistent, as well as a number of gaps in the legislation. The interaction of proceeds of crime legislation, tax and insolvency should be carefully considered by practitioners.Read More
The scope of the Criminal Property Confiscation Act 2000 (WA) is broad. All property owned by a person declared a drug trafficker is liable to be confiscated. This includes a beneficial interest in a deceased estate, even where the property of the deceased was acquired legally.Read More
Legislation has passed in Western Australia to give the Corruption and Crime Commission the power to investigate and litigate Unexplained Wealth matters under the Criminal Property Confiscation Act (WA).Read More
It is well established that property frozen under the Criminal Property Confiscation Act is able to be released to fund legal or living expenses. However, WA DPP practice over the last 10 years has been to deny requests to release funds frozen under the CPCA crime-used or crime-derived grounds. I successfully argued in the District Court that property frozen on these grounds could still be released for such expenses.Read More