When individuals find themselves facing criminal charges, the potential for accused individuals to profit from their alleged activities adds an extra layer of intricacy. How does the law manage the “proceeds of crime”?
Understanding the Act
The Criminal Proceeds Confiscation Act 2002 provides the legal framework for the seizure of assets and proceeds associated with criminal activities. It's important to note that this Act can apply to both suspected and proven unlawful activities. The authorities, with proper court authorisation, can seize any property or revenue derived from illegal activities. In practice, this encompasses a broad spectrum of assets and income sources.
Notably, it's not a requirement for individuals to be convicted for the Act to be invoked. However, the status of ongoing criminal proceedings can influence the type of orders that may be obtained.
The Purpose of the Proceeds of Crime Law
The primary objectives of the Proceeds of Crime legislation in Queensland are multifaceted:
Removing Financial Gain: The law seeks to strip criminals of their financial gains from illegal activities.
Increasing Financial Loss: It aims to impose financial penalties on those engaged in criminal enterprises.
Serving as a Deterrent: The legislation is intended to deter individuals from participating in criminal activities.
Facilitating Property Tracing: It helps law enforcement trace property acquired through illegal means.
Defining Proceeds of Crime
Proceeds of crime can encompass a wide array of assets and revenue generated from criminal activity.
These can include, but are not limited to:
Currency, including shares and cryptocurrency;
Property acquired using proceeds of crime;
Royalties from books or movies related to the illegal activity; and/or
Income generated from criminal activities, such as speaking fees or consulting charges.
The scope is broad, covering all proceeds sufficiently linked to alleged illegal activities, even if they are obtained after the completion of a prison sentence or the payment of fines and associated fees.
Complexity of White-Collar Crimes
In cases involving complex financial transactions, such as fraud or white-collar crimes, it is often crucial to engage external experts like forensic accountants.
These experts can examine financial transactions in question and provide a report in support of your defence. This is particularly significant in confiscation matters due to the reverse onus of proof.
The "Reverse" Onus of Proof
Individuals subject to a proceeds of crime application face a "reverse" onus of proof. Typically, in a criminal case, the prosecution bears the onus of proof – i.e. their responsibility to prove an individual's guilt. However, in this context the accused/respondent must actively demonstrate that their property is not connected to the relevant criminal activity.
Proceeds of crime applications can have severe and far-reaching consequences for individuals and their assets.
Types of Applicable Orders
Within the framework of the Proceeds of Crime legislation, a range of orders can be pursued, each serving a distinct purpose:
These orders temporarily restrict financial transactions, ensuring that assets remain untouched until further legal steps are taken.
Restraining orders limit specific actions regarding certain property, ensuring its preservation until the conclusion of criminal proceedings.
Following a restraining order, assets suspected of being proceeds of crime can be seized and sold, with the proceeds going into the general treasury fund.
Authorities can seize properties or assets suspected to be proceeds of crime. These items can then be sold, with the proceeds going into the general treasury fund.
Closure of Commercial Enterprises
In some cases, businesses related to criminal activities can be shut down.
Pecuniary penalty orders compel convicted individuals to pay the State an amount equivalent to the proceeds of the illegal transaction, even if the exact property cannot be traced.
Unexplained Wealth Orders
Unexplained wealth orders target individuals who may have profited from a crime but have untraceable wealth. The court determines an amount representing the unexplained wealth and orders payment to the State.
Literary Proceeds Orders
To prevent criminals from profiting from their criminal notoriety, literary proceeds orders capture proceeds including revenue from written materials, live entertainment, and interviews. Here, the court considers various factors, including the nature of the alleged action, public interest, cultural or educational value, the offense's severity and the time elapsed since the crime.
If you find yourself facing the challenges of proceeds of crime applications, don't navigate this intricate legal terrain alone. Seek expert legal guidance from professional criminal lawyers.
Contact Creevey Horrell Criminal Lawyers
Based in Brisbane, Roma, Toowoomba, and Townsville.
Visit www.chcriminallawyers.com.au/contact-us to contact us today.