Criminal Property Confiscation is a unique area of the law concerned with the seizure of assets which are believed to be the proceeds of crime.
There are many complicated rules regarding asset seizure. The onus is usually placed on the person whose assets are seized to prove that the property was not obtained from criminal activity.
Assets including cash, land, bank accounts and vehicles, may be frozen and then confiscated in a variety of circumstances, including where assets are:
- A ‘criminal benefit’;
- The property of a person declared to be a drug trafficker;
- A component of a persons ‘unexplained wealth’; or
- Substituted for an asset which was used by a person to commit criminal offences (‘crime-used property substitution declarations’).
Innocent third parties can unfortunately become caught up in the alleged criminal behaviour of an associate or family member, and may have to fight to have their share of seized property returned to them. Similarly, the police may be wrong in their belief that your property is the proceeds of crime, and you will need a confiscation lawyer in Perth to assist you to prove your case in court.
There are both federal and state laws which deal with asset seizure. Whether it is a federal or state confiscation law concerning your matter will generally depend upon whether police suspect the property was obtained through a breach of state or federal criminal laws.
At the state level, police in Western Australia may issue a freezing notice concerning certain property. The Director of Public Prosecutions (‘DPP’) may also apply to a court to issue a freezing order against property. There are strict time limits within which to object to a freezing notice and a failure to do so may lead to property automatically being confiscated. Even if an objection is lodged, a failure to present your case properly may result in frozen property ultimately being confiscated.
There are other requirements placed on a person served with a freezing notice, such as the requirement to provide a statutory declaration to police within 7 days of service of the freezing notice. Failure to do so is an offence and may harm your case to have frozen property returned to you or a third party later down the track.
In Western Australia, the DPP or CCC may also apply to the court to confiscate certain property, even if it has not been frozen.
At the federal level, the Australian Federal Police may freeze and confiscate any proceeds of a crime against Commonwealth Law. This is pursuant to the Proceeds of Crime Act 2002. There are also unexplained wealth laws at the federal level, allowing assets to be confiscated without a person being convicted of any offence.
It is an offence to deal with frozen property in any way. Under the legislation, funds may be released from frozen property to fund legal fees, or to pay for living expenses. An application may also be made by an owner to control or manage frozen property whilst it remains frozen. We can assist you to negotiate with the DPP or CCC for release of frozen funds, or to make an application to the court for release of funds or control of property.
If your assets have been frozen, it is important that you obtain expert advice from a criminal confiscation lawyer immediately. At James Jackson Criminal Defence, we have the experience and ability to protect your interests in property from wrongful confiscation. Don’t hesitate to contact us today for a confidential discussion regarding your criminal confiscation matter.