In Western Australia, there are very harsh laws regarding proceeds of crime and confiscation of property. They were implemented to prevent individuals benefitting from crime.
Under the Criminal Property Confiscation Act 2000 (WA) the police and Director of Public Prosecutions have the power to confiscate property which is:
- Unexplained wealth
- Criminal benefits
- Crime-used property
- Crime-derived property
- Property of a person declared to be a drug trafficker
Proceeds of crime are any property, wealth or holdings that have been procured unlawfully. This includes assets purchased with funds received as the result of criminal activity. Those who have unexplained wealth may be asked by the court to explain how they obtained their assets. The individual whose proceeds may be confiscated (the Respondent) has the onus of proving their wealth and property were obtained lawfully. If the court funds there are unexplained assets, they may be confiscated and forfeited to the State. Confiscated funds are used by the police to fund numerous operations.
Under this legislation, a convicted drug trafficker may have all their assets seized, regardless of whether they were obtained lawfully, after an application to the court. The section of this legislation dealing with drug trafficking relies on a conviction before confiscation may occur. Whereas, no conviction is required to confiscate wealth that cannot be reasonably explained. In such cases, the State only have to establish a discrepancy in the person’s income, that was lawfully obtained, compared to their actual assets. The Respondent must then prove the assets were obtained lawfully.
Before confiscation may occur, the police or DPP may apply to a Justice of the Peace for a freezing notice. This document notifies the Respondent that the State will seek to confiscate it and subsequently stop any further dealings with that property. A freezing notice may be issued if there are reasonable grounds for suspecting the property is crime-used or crime-derived. To object, the Respondent must file an objection to the court specified in the notice within 28 days after receiving the notice, or the property may be automatically confiscated.
A successful objection to the notice must establish:
- The foundation for the State’s application was not sufficient; or
- The Respondent does not own or control the frozen property and has not given it away at anytime; or
- The court finds it more likely than not the property was not crime-used; or
- The Respondent is an innocent party i.e the spouse, partner or dependent of the owner of the property.
DO YOU NEED LEGAL ADVICE?
Should you, or anyone you know, require any assistance in relation to freezing notices or confiscation of property, or any other criminal matters, contact Lawson Legal for your free initial consultation with one of our experienced criminal lawyers.