Proceeds of Crime A Guide For Solicitors by Brian Walker, Barrister Clarence Chambers Level 21, 133 Castlereagh Street SYDNEY NSW 2000 (02) 9188 5251 admin@walkercriminallawyers.com.au an unedited version – December 2020 Information contained in this article is of a general nature only and should not be relied upon as concise legal advice. Contents History 4 […]Continue reading
Proceeds of Crime Quick Reference Guide
Section 47 Forfeiture Orders – conduct constituting serious offences (flowing on from section 18 restraining orders) After a section 18 restraining order has been in place for 6 months, the AFP can apply for a forfeiture order. A forfeiture order as the name suggests, forfeits the property to the Commonwealth. A court must make an […]Continue reading
Section 48 Forfeiture Orders – Convictions for indictable offences Section 48 forfeiture orders are a stand-alone type forfeiture order and are not dependent upon having a restraining order on foot. While the AFP have carriage of most matters relating to POCA, both the AFP and the CDPP have the authority under the act to make […]Continue reading
Section 49 Forfeiture Orders – Property suspected of being proceeds of indictable offences etc. (flowing on from section 19 (in rem) restraining orders). After a section 19 restraining order has been in place for 6 months, the AFP can apply for a forfeiture order. A court must make an order that property specified in the […]Continue reading
Section 92 Automatic Forfeiture – Person convicted of a serious offence (flowing on from section 17 or 18 restraining orders) If a person is convicted of a serious offence,[1] and the property is covered by a restraining order under section 17 or 18 against the person that relates to the offence, the property is forfeited […]Continue reading
Excluding property from forfeiture under Part 2-3 POCA (section 94 POCA) (referring to automatic forfeiture under section 92 POCA) Before Forfeiture A court that made a restraining order in section 92(1)(b) POCA must make an order excluding particular property from forfeiture if: A person applies for an order under section 94 POCA; The court is […]Continue reading
Acquittal or quashing of conviction in relation to section 47, 48, or 49 forfeiture order If a person is acquitted of their previous conviction after the making of a forfeiture order, or if the person’s conviction is quashed,[1] this does not affect a section 47 or section 49 forfeiture order.[2] For a section 48 forfeiture […]Continue reading
Buying Back Forfeited Property from a sections 47, 48, or 49 order A court that makes a forfeiture order against property may make an order excluding a specified interest from a forfeiture order[1] if it is satisfied that: It would not be contrary to the public interest for a person’s interest in the property to […]Continue reading
Relieving dependants of hardship (section 72 POCA) If the court is making a forfeiture order (not being a section 48 POCA forfeiture order) and is satisfied that: The forfeiture would cause hardship to the dependent of a person of whose property is the subject of a forfeiture order; and A payment of a specified amount […]Continue reading
