Proceeds of crime

Contributed by David Hoitink, Legal Aid ACT and current to March 2022

It is an offence in the ACT to receive property knowing that that property is directly derived from a drug offence, in circumstances where the recipient does not have a legal claim to the property (s 640 Criminal Code 2002 (ACT)). Similarly, it is an offence to transfer, convert or remove from the ACT property, knowing the property is derived from a drug offence, with the intention of avoiding prosecution, confiscation of assets or a monetary penalty (s 639 Criminal Code 2002 (ACT)).

Confiscation of proceeds of crime

The Confiscation of Criminal Assets Act 2003 provides mechanisms for police and prosecuting authorities to confiscate assets derived from criminal activity, in addition to a range of related powers such as the ability to restrict dealings with assets suspected of being derived from criminal activity.

Restraint

The Confiscation of Criminal Assets Act allows courts to make orders preventing people from disposing of property suspected of being the proceeds of crime, known as “restraining orders”. Police may apply to the court for an order restricting a person from dealing with “tainted property”, which is property suspected of being used in the commission of an offence or derived from the commission of an offence (ss 25, 30, 31 Confiscation of Criminal Assets Act 2003 (ACT)). Such orders are designed to preserve property that it is anticipated may ultimately be confiscated or liquidated to pay a financial penalty (s 22 Confiscation of Criminal Assets Act 2003 (ACT)). In applying for such orders police are required to outline their basis for suspecting an offence has been committed, state whether they believe the property may ultimately be confiscated, and set out their basis for suspecting that the property is tainted (s 29 Confiscation of Criminal Assets Act 2003 (ACT)). Courts are required to consider information provided by police and to grant the restraining order if satisfied that there are reasonable grounds for police suspicions that the property is tainted, and that authorities intend to pursue a prosecution or seek a civil forfeiture order in due course (s 31 Confiscation of Criminal Assets Act 2003 (ACT)).

If the accused person is convicted of a serious offence (an offence prescribed by regulation, or one punishable by five years of imprisonment or longer) (s 13(2) Confiscation of Criminal Assets Act 2003 (ACT)), and a restraining order has been made in relation to that offence, the property that is the subject of the restraining order is automatically forfeited to the ACT 14 days following the latter of the conviction or the making of the restraining order (s 58 Confiscation of Criminal Assets Act 2003 (ACT)).

Dealing with property in contravention of a restraining order is an offence punishable by up to 5 years imprisonment (s 23 Confiscation of Criminal Assets Act 2003 (ACT)).

Forfeiture

The Confiscation of Criminal Assets Act also provides mechanisms for property derived from criminal activity to be forfeited to the ACT. As outlined above, property that is the subject of a restraining order may automatically be forfeited following conviction for a serious offence.

Courts may order the forfeiture of property derived from crime to the ACT upon conviction for an offence punishable by 12 months imprisonment or more, and following an application from prosecutors. Courts are required to order the forfeiture of the relevant property if satisfied that it was used, or intended to be used, by the offender in relation to the commission of the offence, or that it was derived from the commission of the offence (s 54 Confiscation of Criminal Assets Act 2003 (ACT)).

Courts are further empowered to order the forfeiture of property that is subject of a restraining order, even if the accused person has not been convicted or charged, provided that they are satisfied on the balance of probabilities that the accused person committed a relevant serious offence within a particular period (usually 6 years) before police applied for a restraining order (s 67 Confiscation of Criminal Assets Act 2003 (ACT)).