It is worth talking about settlement, because confiscations matters are, at their heart, civil. ((See sections 102(1) Criminal Property Confiscation Act 2000 (WA) and s 315 Proceeds of Crime Act 2002 (Cth).))
Approximately 97-99% of civil matters are resolved prior to trial. I am not aware of any official statistics on the percentage of proceeds of crime and confiscation matters that are settled by negotiation. I don’t think it would be quite as high as 97%, but I think it would exceed 90%.
In the space of a fortnight I settled 3 unrelated matters against the State under the Criminal Property Confiscation Act 2000.
In total my 3 clients have agreed to confiscation of property worth $48,435 and have had returned to them frozen property worth about $3,450,000 comprising:
$1.85m cash at bank; and
$1.6m worth of real property.
In each case the settlement was on the basis that there be no order as to costs. That is an important consideration. If the DPP is unsuccessful at trial it is likely to result in the Court making an order that the State pay the legal costs of the property owner who opposed confiscation. The practice is that the DPP must pay that from its departmental budget. That is understandably something the DPP is keen to avoid.
Negotiating a settlement in proceeds of crime and confiscation matters
Favourable negotiated outcomes generally require a good deal of work beforehand. Ordinarily there is little point in seeking to settle a confiscation matter prior to the filing and service of affidavits. If there is a related criminal charge, affidavits will not always be needed as the evidence may all come out in the course of a criminal investigation and/or trial.
Favourable settlements generally result from an exchange of correspondence. I ordinarily find it advantageous to set out what I consider to be the weaknesses of the State case (whilst acknowledging its strengths). It can be worth estimating costs to the State if it does not settle.
As a general rule the State will not want to ‘horse trade’ or settle on purely commercial terms. Ordinarily the State will want any settlement to reflect the risk and the likely outcomes at trial.
Mediation conferences are the exception rather than the rule, but they do occur from time to time. A handful of the more complicated matters will be resolved by way of a deed of settlement, but typically consent orders are entered to give effect to the settlement. ((These are expressly provided for in s 316 Proceeds of Crime Act 2002 (Cth). In State matters reliance is simply placed on Order 43 rule 16 of the Rules of the Supreme Court 1971.))
Specialist confiscation and proceeds of crime advice
If your client is facing proceeds of crime or criminal property confiscation proceedings it is worth getting specialist advice early. This will allow your client to make an informed decision at the earliest possible stage in order to maximise the prospects of success and minimise the costs and uncertainty of litigation.
I am often engaged for the specific purpose of negotiating a settlement. I can usually offer a fixed fee for this work. I am happy to discuss how I may assist your client, with no obligation.