Confiscations Proceedings in Queensland: How Lawfully Obtained Property can be Seized
Written by Jason Papoutsis – Litigation Lawyer
The Criminal Proceeds Confiscations Act 2002 (Qld) (“the Act”) was enacted with the main object of removing the financial gain and increasing the financial loss associated with illegal activity. This is achieved by seizing the proceeds of crime.
What may come as a surprise to many, is that property can be seized and forfeited to the State of Queensland, regardless of whether or not a person is convicted of an offence because of the alleged illegal activity.
In other words, even if the serious criminal allegations against you remain unproven, or if you are found to be not guilty, the police can still seize your cash or property and, if appropriate steps are not taken to exclude that cash or property in the Supreme Court, it can be permanently forfeited to the State of Queensland. Even if that property was lawfully obtained and not actually the proceeds of crime.
If you have received an application for a restraining order, or if the police have attended your property and have seized cash or other assets, you should immediately call a lawyer experienced in confiscation proceedings so that appropriate steps are taken to protect and return your lawfully acquired property.
Serious Offences which Enable Confiscations to Occur
Readers may be asking, “How can a person’s lawfully acquired property be seized by police?”. In most cases, this process commences once there is a suspicion that a person committed a “serious criminal offence”.
Whilst the definition of “serious criminal offence” under the Act includes indictable offences for which the maximum penalty is at least 5 years imprisonment, in practice a vast majority of confiscations proceedings apply to property owned or controlled by persons charged with offences under the Drugs Misuse Act 1986 (Qld) (“DMA”).
Confiscations Investigations by the Crime and Corruption Commission (CCC)
A person charged with serious drug offences who owns real estate or who has other significant assets, can therefore expect to face confiscations proceedings commenced by the Crime and Corruption Commission (“CCC”).
The CCC employs lawyers and investigators who work with the police to gather evidence in relation to a suspect’s assets, such as bank accounts and motor vehicles held in that person’s name.
The first step usually taken by the CCC is to file an application for a restraining order. The person affected by the application will usually be served documents from police, which will include a copy of the restraining order application together with a bundle of supporting affidavits.
On rare occasions, the CCC may obtain a restraining order ex-parte (in the absence of the respondent) if they allege there is a significant risk that the assets will be dispersed (this usually applied to assets held in bank accounts). A person may only realise this has occurred when they attempt to withdraw money from that bank account, only to learn that their bank accounts are frozen.
Resisting restraining orders is very difficult, since the legislation only requires proof on the balance of probabilities of two things. First, that there is a “suspicion” that the respondent engaged in a serious crime related activity; and second, evidence that the respondent owns or has effective control over that property.
A “suspicion” is a very low threshold, and only requires the existence of facts which are sufficient to induce either state of mind in a reasonable person. In Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562, the High Court held the appropriate test (under a similar section of the Victorian Confiscations legislation) was an objective test.
If granted, the restraining order will remain in effect for 28 days, but is extended when the CCC files any of the following applications:
- an application for a forfeiture order;
- an application for a proceeds assessment order; or
- an application for an unexplained wealth order.
Forfeiture orders seek the confiscation of all property owned or controlled by the respondent, unless they can show that the property was not illegally acquired. This reverses the onus of proof onto the Respondent, and is the most common method used by the CCC since it is the easiest for the State to win.
The reverse onus means creates various difficulties for clients who have had cash seized by police. This is because often cash which is derived from even lawful activities, or which is accumulated over a lengthy period of time through lawful means, is still difficult to trace, especially if no accurate business records are kept.
Proceeds Assessment Orders
Proceeds assessment orders are typically orders sought in the equal amount to the sales proceeds of the illegal drugs or the illegal activity, supported by the evidence in the criminal proceedings.
When the CCC’s evidence is strong, and the proceeds of sale can be accurately traced, this order is sought and can usually only be resisted if the person can prove that they did not engage in serious crime-related activity in the last 6 years.
Unexplained Wealth Orders
Unexplained wealth orders seek to confiscate only the difference between the respondent’s lawfully acquired wealth and their total wealth (that difference represents the “unexplained” wealth accumulated by the respondent).
Unexplained wealth investigations are very difficult and research intensive, since they must focus on whether the person’s living expenses and lifestyle greatly exceeds their taxable income.
Why Choose Potts Lawyers?
Only solicitors who are experienced in dealing with Confiscations Matters should be engaged to represent clients in this area of law, since restraining orders on “all property” may include funds in a solicitor’s trust account. Potts Lawyers is experienced in these matters and has systems in place to protect clients in these scenarios by utilising third party payers.
Potts Lawyers is also experienced in Confiscations Proceedings in Queensland. We offer clients clear and concise advice on the effect of restraining orders and a strategy for recovering lawfully obtained property seized by the State of Queensland.
Since a majority of matters proceed by way of an application for forfeiture, clients should always engage lawyers who they trust and who are experienced in assisting the client to compile all property related documentation to reconstruct their finances over the relevant period.
Potts Lawyers is committed to resolving confiscations matters quickly and efficiently, so that our clients’ exposure to legal costs is limited.
Contact Us For A Free Initial Consultation
If a person has cash or any other property seized by the police in Queensland, they should call Potts Lawyers for a free 20 minute consultation to get a better understanding of the process and a strategy for resisting the seizure of lawfully obtained property.