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 24 of the Proceeds of Crimes Act 2002 (Cth) allows the defendant to apply for an allowance for living expenses amongst other things and in certain circumstances to be provided from restrained property. In the recent case of The Commissioner of the Australian Federal Police v Memon (No. 2) [2020] NSWSC 1636, a tender of evidence concerning […]Continue reading
On 17 December 2020 in Commissioner of the Australian Federal Police v Tjongosutiono [2020] NSWSC 1815, further judicial consideration was given to the interpretation of section 330(4) of the Proceeds of Crime Act 2002 (Cth) and its interaction with ‘cuckoo smurfing’ as a money laundering technique used in Australia. In this case, Mr Tjongosutiono had […]Continue reading
Further consideration of s 330(4)(a) Proceeds of Crime Act 2002 (Cth) post the High Court’s decision in Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39. In Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247, assets were excluded from restraining orders on the basis that there was no evidentiary basis […]Continue reading
Notices to Financial Institutions A notice to a financial institution is a notice authorised by a senior executive AFP employee (or higher), requiring the financial institution to provide information to an AFP member. The information requested can be broad and can include whether the person holds an account, is a signatory to an account, as […]Continue reading
Monitoring Orders A Monitoring Order is a judge made order which is made on the application of the AFP to order a financial institution provide information on transactions conducted on a credit or debit card. To make the order, the judge must be satisfied that there are reasonable grounds to suspect that the person who holds […]Continue reading
Proceeds of Crime Search Warrants POCA Search Warrants are substantially similar to standard Federal level search warrants contained in the Crimes Act 1914 (Cth).[1] A POCA Search Warrant is a Magistrate issued search warrant, which is issued if the Magistrate is satisfied that there are reasonable grounds for suspecting that there is at the premises, or […]Continue reading
Disclosure of POCA Obtained Information[1] As POCA information is contained in a coercive manner, there are constraints around when it can be disclosed. Section 266A POCA applies to information obtained from: Sworn statements,[2] including sworn statements made by the suspect in relation to a restraining order,[3] a sworn statement made by an owner or previous […]Continue reading
Proceeds of Crime Freezing Orders A Freezing Order is a Magistrate issued order that a financial institution not allow a withdrawal from an account with the institution if there are reasonable grounds to suspect (broadly) that the balance of the account is proceeds of an indictable offence, or is wholly or partly an instrument of […]Continue reading
