Asset Confiscation

Asset Confiscation Law – Restraining Orders – Forfeiture – Proceeds of Crime

Asset confiscation, has a restraining order been put on your property in relation to an alleged criminal offence?

We can assist.

The Confiscation Act 1997 allows the state to confiscate property either used in the commission of a crime or derived from the profits of a crime. The Crown must first establish the initiating offence and then that the property in question is in fact tainted property as defined by the Confiscation Act. (See the right of the page for more information on what is tainted property.)

In some cases though, innocent parties get swept up in a blanket application of the law whereby their assets become targets for confiscation. Victims of the legislation might well be guilty of a particular offence or have no connection to it at all (being an unrelated third party), but nonetheless they often have their property unfairly targeted.

That is why it is important to engage experienced criminal defence lawyers to assist in resisting any application from the Crown to confiscate your property.

Forfeiture and restraining orders

Restraining Order is a prelude to a forfeiture order in cases where the Crown deems it necessary to preserve the property prior to forfeiture. Police can pursue a restraining order up to 48 hours prior to laying charges in relation to a Schedule 1 or Schedule 2 offence.

Forfeiture Orders allow the state to confiscate and deal with assets determined to be tainted property. There are three types of forfeiture orders:

  • Discretionary for schedule 1 offences;
  • Civil for schedule 2 offences where charges have not been laid or there was no finding of guilt; and
  • Automatic following a conviction for a schedule 2 offence.

Exclusion orders - what should I do?

Exclusion orders allow an accused person or third party with an interest in the restrained property to make application for the property to be excluded from confiscation.

We can apply for an exclusion order within 30 days of a restraining order being made, and within 60 days of a forfeiture order application being made.

Offences relating to asset confiscation

Asset confiscation only applies to certain offences listed as Schedule 1 & Schedule 2 offences in the Confiscation Act 1997.

Schedule 1 offences relate to offences found in:

  • Aboriginal Heritage Act 2006;
  • Casino Control Act 1991;
  • Dangerous Goods Act 1985;
  • Fisheries Act 1995;
  • Racing Act 1958; and
  • Wildlife Act 1975.

Schedule 2 offences relate to offences found in:

  • Drugs, Poisons and Controlled Substances Act 1981;
  • Crimes Act 1958; and
  • Sex Work Act 1994.

In Victoria, the Schedule 2 offences above predominantly relate to dealing drugs in a commercial quantity, cultivating drugs in a commercial quantity, manufacturing drugs in various quantities, and serious examples of fraud and theft in excess of $50 000.

Being found guilty of any of the above offences will usually trigger an application from the Crown to forfeit your property – i.e. your house, car and/or money. This is termed asset confiscation.

The most common methods used by the prosecuting agency to achieve this purpose are:

  • Restraining Orders; and
  • Forfeiture Orders.

Other orders that can be made are:

  • Pecuniary Penalty Orders
  • Property Substitution Orders

Pecuniary Penalty Orders

Pecuniary Penalty Order (PPO) can be imposed when someone is convicted of a schedule 1 or schedule 2 offence. The purpose of a PPO is for the state to ensure that the convicted person pays to the state the equivalent of any benefit derived from the offending. A PPO is a discretionary order, which means that the Court can decide whether or not to make the order.

Property Substitution Declarations

Property Substitution Declaration (PSD) allows the state to apply to the Court to swap the assets of the accused with the assets of a third party. It is used in cases where the accused person had their own property with which to commit an offence, however they opted instead to use someone else’s. The only restriction in relation to a PSD is that the assets must be of the same nature.

What is tainted property?

Tainted property is defined by the Confiscation Act section 3 as being property that

(a) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or

(b) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in paragraph (a); or

(c) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence;

Property that was used in connection with the offence

To determine whether property is tainted property the Crown must demonstrate a connection between the offending and the property in question. The Crown can do this in one of three ways, as demonstrated above. For example, in a situation where a crop house (i.e. a house where a crop of cannabis is being grown) has been found, there is a clearly a connection between the offence of growing cannabis and the property (being the house). This satisfies section 3(a), above, and the house is therefore tainted property. In terms of the level of connection to the crime, there are varying degrees, and this is something that must be considered on a case by case basis.

Property that was derived or realised from property used in connection with the offence

The second way the Crown can establish that the property is tainted property is under subsection (b), being property derived or realised from property used in connection with the offence. The Crown must first establish a connection with the original property and then prove that the property has been sold or swapped for the new property. In this circumstance the new property has been derived from the old property that was used in connection with the offence and is subsequently also considered to be tainted property.

Property that was derived or realised by any person from the commission of the offence

Finally there is subsection (c) of the definition of tainted property where the Crown seek to establish that an offender has substantially derived or realised the asset as a result of committing an offence. A common example is drug trafficking. The judicial meaning of ‘substantially derived or realised’ is a matter of assessment that must be done on a case by case basis after consultation with an experienced asset confiscation lawyer.

Asset confiscation prosecution

Asset confiscation is monitored by three key agencies:

  • Victoria Police;
  • Office of Public Prosecutions (OPP); and
  • Asset Confiscation Operations Unit (ACO).

Victoria Police investigates crime and identifies assets for confiscation. There is a specialist squad attached to Victoria Police called the Criminal Proceeds Squad dedicated to helping identify proceeds of crime and assisting in the preparation required by the Office of Public Prosecutions.

The Office of Public Prosecutions prosecutes indictable crime in Victoria. There is a dedicated unit within the OPP called the Proceeds of Crime Directorate. This unit prosecutes and responds to all restraining, exclusion and forfeiture application orders.

The Assets Confiscations Operations Unit is responsible for monitoring the confiscation scheme. As a result of many successful applications initiated by the Crown (OPP) there is considerable wealth flowing back to government from the scheme. The ACO, along with other committees, is responsible for managing that wealth through a trust fund.

The unfortunate reality with this legislation is that many innocent parties are swept up in the confiscation process.

Our criminal defence lawyers have extensive experience representing clients faced with potential asset confiscation and restraining order applications in the County Court. We have asset confiscation lawyers at our offices located in the Melbourne CBD, Ringwood, Frankston, Dandenong and Moorabbin areas.

Don’t ignore your notification by the Crown

If you ignore the official notification, your property will be forfeited. It is critical that you seek legal advice from experienced asset confiscation solicitors and respond via affidavit to any action being taken against your property. If you do not, the consequences could be serious.

We have handled a number of these matters and are often successful in protecting property from seizure. The most critical factor in these applications is a well-prepared and considered response.

If you have a pending asset restraining order or asset confiscation application against your belongings or property, call our criminal law firm urgently so we can assist you in formulating a response.

Our asset confiscation lawyers can help you from one of our many offices throughout Melbourne.