Proceeds Of Crime (WA)
In Western Australia, the Criminal Property Confiscation Act 2000 allows a court to order that all assets suspected of being the proceeds of crime be confiscated. Proceeds of crime are cash, property, other assets or benefits gained through criminal activity.
No criminal conviction is needed before order can be made, and property can be confiscated even when a suspect has not been identified.
The main aim of the laws is to remove the financial gain and increase the financial loss associated with crime. The laws also act as a deterrent to crime as well as help police trace property acquired from illegal activity.
Under the Act, police or the Corruption and Crime Commission (CCC) can apply to the Supreme Court for an unexplained wealth declaration, a criminal benefits declaration, a crime-used property substitution declaration or a freezing order.
Unexplained wealth declaration
When an unexplained wealth declaration is made against a person, there is a presumption the person’s wealth has not been lawfully acquired unless they can prove otherwise. The declaration requires the person to pay to the state an amount assessed by the court to be the value of the person’s unexplained wealth.
Criminal benefits declaration
A court can make a criminal benefits declaration if it is more likely than not that a person’s “property, service, advantage or benefit”, whether or not it was lawfully acquired, is derived from wealth generated by involvement in crime. There is a presumption the person has acquired a criminal benefit unless they can show otherwise. This type of declaration cannot be made if the property, service, advantage or benefit has been confiscated or taken into account in making an unexplained wealth declaration. The declaration requires the person to pay to the state an amount assessed by the court to be the value of the person’s criminal benefit acquired.
Crime-used property substitution declaration
This declaration can be made when the crime-used property is not available for confiscation. This could be because the person does not have effective control of it, an order related to the property has been set aside in favour of a family member, or the property has been sold or otherwise disposed of, or cannot be found. The declaration allows a person’s property to be available for confiscation instead of crime-used property. The value of the property that can be confiscated is equal to the assessed value of the crime-used property at the time of the offending.
A freezing order, sometimes known as a Mareva order, is used to prevent a person disposing of, hiding or diminishing assets. The court can direct that police or the Public Trustee manage the assets, or give any other directions to secure and manage the property while the order is in force. A person must not deal with property subject to a freezing order.
A freezing notice is an interim measure used when police suspect property is used in crime or derived from it. If the person served with the notice dose not file an objection within 28 days, the property is automatically confiscated. A person must not deal with property subject to a freezing notice.
The Act confers a range of investigative powers on police and the CCC. These include seeking orders related to financial institutions and examinations.
A financial institution can volunteer information to police or the CCC if the institution believes information about a transaction may help investigate a crime or help a court decide whether to make a declaration. An institution can also be ordered to provide information to police or the CCC about accounts and transactions that may be related to crime.
The Director of Public Prosecutions (DPP) or CCC can apply for a monitoring or suspension order to require a financial institution to notify them of any transaction made through a specified account, or to delay completion of a transaction for 48 hours.
The DPP can apply to the District Court for an order to question a person about the nature, source and location of frozen or confiscable property, and about the wealth, liabilities, income and expenditure of criminals, suspected criminals, declared drug traffickers, or those with unexplained wealth. The order can require the person to, for example, attend court or provide documents or other information.
For crimes against commonwealth law, the Proceeds of Crime Act 2002 applies. In some situations it can be used to confiscate proceeds of crime against state law, if the proceeds have been used in a way that contravenes commonwealth law.
The commonwealth act grants powers to make orders similar to that which can be made under the Western Australian act. For instance, under the commonwealth act, a freezing order can be made specifically in relation to a bank account. The court can make an order if it is satisfied there are grounds to suspect the account contains proceeds of crime and there is a risk money will be withdrawn from it unless an order is made.
The commonwealth act, however, allows for the making of a literary proceeds order. Literary proceeds are “any benefit a person derives from the commercial exploitation” of their notoriety resulting from them committing an indictable offence in Australia or abroad. The exploitation may be any means, including publishing material in written or electronic form, use of audio-visual media, or any live entertainment or interview.
For advice or representation in any legal matter, please contact Armstrong Legal.