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
Proceeds of Crime Act 2002 overview
…the principle of legality favours a construction of the POCA — if one is available — which avoids or minimises its encroachment upon fundamental property rights.
Proceeds of Crime Act litigation
The Proceeds of Crime Act 2002 (POCA) is primarily, but by no means exclusively, concerned with the disgorgement of profits allegedly derived from offences against Federal and Foreign law. Litigation under the Act is civil and in many instances the onus of proof is reversed. It has some limited protections and judicial discretions.
Since 2012 most matters under the Proceeds of Crime Act 2002 have not only been investigated by the Australian Federal Police; they have also been litigated by in-house lawyers employed by the Commissioner of the AFP. I was an inaugural member of the AFP's management team as Deputy Counsel for WA, SA and the NT. Without a doubt the AFP is pursuing litigation under the POCA more aggressively than the Commonwealth DPP used to.
The Proceeds of Crime Act has been extensively amended in its relatively short life. It has, particularly since 2012, been the subject of appeal on a number of occasions. There are undoubtedly many more statutory construction questions still to be resolved. There is a plethora of extrinsic material to be considered when advising on the application of the POCA. I have provided links to the most significant documents.
Proceeds of Crime Act streams
There are six types of final orders that can be made under the Proceeds of Crime Act 2002. Click the type of order to read more.
Conviction Based Forfeiture
Conceptually this is the simplest order. If a person is convicted of an indictable Commonwealth offence, any property derived from the offence must be forfeited. Any property used in the commission of the offence may be forfeited. Post-conviction litigation is most likely to be focused on whether the property was derived from or used in the commission of the offence or whether a third party interest is liable to forfeiture.
Non-conviction based forfeiture
The concept is broadly the same as conviction based forfeiture, with a few important twists. First, the AFP must prove (on the balance of probabilities) that a relevant offence was committed. This can involve running a quasi-criminal trial. Second, property can only be forfeited on the basis that it was used in the commission of an offence if the offence is a ‘serious offence’ (defined in s 338 to include a range of Commonwealth drug, money laundering, fraud and other offences). Third, property can be forfeited on the basis that it is derived from the commission of any Commonwealth indictable offence, a foreign offence and certain state offences.
When a person is convicted of a serious offence (as defined) restrained property is forfeited after 6 months unless the person successfully applies to have the property excluded. In order to avoid forfeiture the owner must establish that the property was not derived from or used in the commission of any offence.
Pecuniary Penalty Order
Typically used for fraud offences (but available more generally) these orders quantify the benefit or profit that a person has derived from unlawful activity. The person is then required to pay that amount to the Commonwealth, failing which restrained property owned by the person may be sold to satisfy the debt. These orders are available on both a conviction or non-conviction basis.
Unexplained wealth (UEW) is a relatively untested stream of the Act. The first matter was commenced (in WA) in 2017 even though the powers were introduced in 2010. Unexplained wealth under any confiscations legislation is inherently complex. But the complexity is even more pronounced under the POCA. Unlike the State Parliaments, the Commonwealth Parliament does not enjoy plenary powers to make whatever laws it chooses (subject to express constitutional limitations). The UEW provisions of the POCA must therefore be tied back to a specific federal constitutional head of power. At the factual level UEW litigation usually relies heavily on forensic accounting evidence.
These provisions have rarely been used. Most famously they were used against Schapelle Corby. They were also attempted to be used against David Hicks, but that litigation came to an abrupt halt when the authorities realised they could not rely on his conviction before the United States’ Military Commission. The intention of the provision is to prevent people from profiting from crime by writing a book about it or being paid to give media interviews.
Proceeds of Crime Barrister
I am a specialist Proceeds of Crime Barrister. Due to my familiarity with the Proceeds of Crime Act 2002 (Cth) and depth of knowledge in this area I need to do less background work than others might. I can quickly get into the nuance of your specific matter; saving your client time and money.
Proceeds of Crime is a niche area of law with significant consequences for your client. I was previously Deputy Counsel of the Australian Federal Police responsible for Proceeds of Crime litigation in Western Australia, SA and the NT. My experience means you can be confident in the quality of my advice. I can provide discrete advice or total carriage of the matter; whatever works best for you.
Due to my exposure to and large number of matters involving the Proceeds of Crime Act I don't need to bill for background work. I understand how the Proceeds of Crime Act is interpreted and applied. You only need pay for work that relates to your specific circumstances, and you can trust that I am aware of all recent relevant decisions across Australia.
Proceeds of Crime Act further resources
Federal laws, as well as foreign criminal laws, are diverse and as a result matters under the Proceeds of Crime Act are likewise.
I have assembled the most frequently used extrinsic materials as well as a detailed paper I prepared for the Law Society of Western Australia.
For a detailed discussion of the AFP's internal processes for investigating and litigating proceeds of crime matters see Commissioner of the AFP v Cranston (No 8)  NSWSC 365 at  and following.
I advise both nationally and overseas in this field. Please contact me if I can assist you or your client with a particular matter.
Practical stepsPractical confiscations (paper prepared for Law Society)
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