Christian covered five main topics. Firstly, the relevant applications that can be made under the Proceeds of Crime Act 2002 (Cth) ("the POCA") to protect property. Secondly, the statutory tests for those applications including exclusion and compensation applications. Thirdly, the statutory test for forfeiture when no conviction of serious offences arises. Fourthly, some practical guidance on how evidence should be prepared, particularly, the affidavits in support of the applications for exclusion or compensation. And lastly, he provided some insight into examinations which the Chief Commissioner of Police may conduct before any applications are determined.
Christian discussed three main types of applications and relevant provisions under the POCA: (1) exclusion application which allows the person to get the actual property back; (2) compensation application which allows the person to be paid an amount of money usually from the proceeds of sale of the forfeited property; and (3) hardship relief order application which can be made when a dependent suffers particular hardship arising from the restraint of property.
Key tests for exclusion were discussed including application that needs to be made when a restraining order is made on notice, application after a restraining order is made but before forfeiture, and application for exclusion following conviction for a serious offence. It was noted that exclusion applications tend to be very fact-dependent, and close attention must be given to evidence being put forward.
Particular attention was also given to s 330(4)(a) of the POCA setting out the characteristics of when property becomes, remains and ceases to be 'proceeds of an offence'. Christian talked about the cases of Lordianto and Kalimuthu in which the High Court held that property in respect of bank accounts into which deposits were made through a money laundering process known as "cuckoo smurfing" had not "ceased" to be proceeds or an instrument of an offence.
This section is also applied to protect third parties looking to separate property from restraint. These parties must demonstrate that property was acquired for sufficient consideration in a non-suspicious transaction, and evidence in support must be set out in an affidavit.
It was highlighted that when it comes to applications for forfeiture of restrained property, s 18 restraining order corresponds with s 47, while s 19 restraining order corresponds with s 49. Importantly, for the Commissioner to obtain a forfeiture order, they are only required to establish that a criminal offence was committed on civil standard, i.e. the balance of probabilities.
Christian recommended that practitioners start collating documents early given the evidence must be by way of affidavit and exhibits in support. Delay can lead to many documents becoming unavailable. This is particularly important for exclusion applications because the applicant bears the onus of proof. Further, practitioners need to consider witnesses who could be called to give evidence in support of an exclusion application. Practitioners only need to deal with issues that have been expressly or inferentially raised by the commissioner.
Christian noted that there has been a significant increase in examinations. Examinations are conducted in private, before an examiner who was a presidential member of the AAT. The legislation sets out that the Commissioner has to have reasonable opportunity to conduct an examination but noted that it is not an absolute right. For example, would an examination order be refused by the Court if it would affect a trial date? Nevertheless, there is an entrenched right to an opportunity to examine a suspect.
Examinations are draconian affairs during which all privileges are abrogated and non-compliance with an examination order is punishable by imprisonment. Christian noted the importance of practitioners considering the use of quarantine orders under s 266A of the Act to counter the default position to share information coercively acquired.
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