CONFISCATIONS/PROCEEDS OF CRIME
Both Queensland and the Commonwealth have laws which specifically target the financial proceeds of crime - the Criminal Proceeds Confiscation Act 2002(Qld) and the Proceeds of Crime Act 2002 (Cth). Gilshenan & Luton are one of the few firms in Queensland who regularly conduct this type of specialised work.
Proceeds of crime legislation empowers State and Commonwealth authorities to bring applications in Court to both restrain and forfeit property suspected of being the proceeds of a crime. No criminal conviction is necessary before such orders can be made. Indeed, those the subject of these orders are often not charged at all.
The law in this area is very powerful and often imposes a “reverse onus of proof” upon the accused or respondent to the application. This means that unlike in most criminal cases where the prosecution bears the onus of proof in establishing the charge, in proceeds of crime matters, the accused / respondent to the application must prove that the property sought to be restrained or forfeited is not tainted by crime.
Proceeds of crime applications can have devastating consequences: bank accounts can be frozen, cars can be seized, and homes can be sold. Furthermore, unlike most areas of criminal law, strict time limits are imposed on persons seeking to contest a proceeds application, and failure to comply can result in the automatic forfeiture of the property to the government.
Like fraud or other white collar crime cases, it is often the case that external experts such as forensic accounts need to be engaged to examine the financial transactions in question and provide a report in support of your defence. This is particularly so in these matters where a reverse onus of proof may exist.
Glen Cranny, one of our accredited specialists in crime, has published an article on this topic in the Qld Law Society journal "Proctor".