Proceeds of Crime (Qld)
Physical benefits (money and other things) obtained from criminal activity are known as the proceeds of crime. The Crime and Corruption Commission (CCC) is an independent statutory body set up with the goal of reducing the frequency of major crime and corruption in Queensland. The CCC works closely with the Queensland Police Service and the Director of Public Prosecutions to pursue and confiscate profits obtained from criminal activity, with the goal of disincentivizing illegal activity. One of the ways it does this is by obtaining orders in respect of the proceeds of crime.
What proceeds of crime can be confiscated?
The Criminal Proceeds Confiscation Act 2002 (CPCA) enables confiscation of:
- Property directly or indirectly obtained from carrying out criminal activity;
- Property used to commit an offence;
- Property belonging to serious drug offenders; and
- Property of individuals who are unable to explain how the property was acquired
Throughout criminal proceedings, a court may order the confiscation of property suspected of being the proceeds of crime. There is no need for a conviction to have been reached before this order can be made. The court can make the following orders.
Proceeds of crime: Restraining Orders
Under section 28(1) of the CPCA, the CCC or police may make an application to the Supreme Court for an order restraining a person from dealing with specific property, other than in a stated way or in stated circumstances. If made, this order remains in force for 28 days.
If a restraining order is in place, the state may apply to the Supreme Court under section 56 of the CPCA for forfeiture of particular property. Written notice of the application must be given to the person whose property is restrained, as well as any other person who has an interest in the restrained property.
In making a forfeiture order, the court must first determine that it is more probable than not that:
(a) The prescribed respondent mentioned in an application for a restraining order under section 28 engaged during the limitation period in a serious crime-related activity; or
(b) The property is serious crime derived property because of a serious crime-related activity that happened during the limitation period
The court may refuse to make an order if it is found that it is not in the public interest to do so.
Proceeds of crime: Exclusion of Property Order
If an application for forfeiture has been made but has not yet been decided, a person who claims an interest in the relevant property may apply to the court for an exclusion order. The court may make an order if satisfied that:
(a) the applicant has an interest in the property; and
(b) it is more probable than not that the property to which the application relates is not illegally acquired property.
Discharge of Encumbrance
If the court is satisfied that an encumbrance over property that is to be forfeited was taken in good faith, for valuable consideration and in the ordinary course of business, it may make an order about the encumbrance that it considers appropriate.
Proceeds of crime: Proceeds Assessment Order
Under section 77 of the CPCA, the state may apply to the court for an order which would require a person to pay to the state the value of the proceeds derived from specific illegal activity. In making such an order, the court may deduct the value of any property forfeited to the state. The court may refuse to make such an application if it is found that doing so is not in the public interest
Property Particulars Order
Under section 42 of the CPCA, a court may make a property particulars order. This is an order that requires a person to provide a statement to the CCC or to the Public Trustee outlining their property particulars.
Unexplained Wealth Order
Under section 89F of the CPCA, the state may apply to the Supreme Court for an unexplained wealth order. This is an order requiring a person to pay to the state an amount assessed by the court to be the value of that person’s unexplained wealth.
Before making an unexplained wealth order, the court must be satisfied that:
(a) it is probable that the person has engaged in one or more serious crime-related activities; or
(b) it is probable that the person has acquired, without giving sufficient consideration, serious crime derived property from the activity of someone else (whether or not they knew or suspected that the property was derived from such activity).
The court must also be satisfied that part or all of the person’s current or previous wealth was acquired unlawfully.
The court may refuse to make an unexplained wealth order if it is found that it is not in the public interest to do so.
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