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Proceeds of Crime – Acquittal’s or Quashing’s in relation to Forfeiture Orders

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Acquittal or quashing of conviction in relation to section 47, 48, or 49 forfeiture order

If a person is acquitted of their previous conviction after the making of a forfeiture order, or if the person’s conviction is quashed,[1] this does not affect a section 47 or section 49 forfeiture order.[2] For a section 48 forfeiture order, the forfeiture order is considered discharged if the CDPP[3] does not apply for the order to be confirmed within 14 days of the person’s conviction being quashed.[4]

If the CDPP are seeking confirmation of a section 48 forfeiture order after that person’s conviction has been quashed, the CDPP must give written notice of the confirmation application[5] to the person whose conviction was quashed, and any person whom the CDPP reasonably believes may have had, or may have an interest in the property.

The court has a discretion to confirm the forfeiture order if it is satisfied that it could have made a forfeiture order under section 47 or section 49 in relation to the offence which was quashed if, when the authority applied for an order under section 48, it had instead used either section 47 or 49.[6] The requisite time limits for a restraining order to have been in place for 6 months for both a section 47[7] and section 49[8] forfeiture order are taken to be satisfied[9] for these purposes.

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 47 forfeiture order, then the original forfeiture order is taken not to have been affected by the quashing of the person’s conviction.[10]

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 49 forfeiture order, then if property the subject of the forfeiture order is proceeds of the offence, or (if the offence is a serious offence), an instrument of the offence, then the original forfeiture order is taken not have been affected by the quashing of the person’s conviction.[11]

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 49 forfeiture order, then if property the subject of the forfeiture order is not proceeds of the offence, or (if the offence is a serious offence), not an instrument of the offence, then the original forfeiture order is discharged.[12]

If the court decides not to confirm the original forfeiture order, then the original forfeiture order is discharged.[13]

Quashing of conviction in relation to section 92 forfeiture order

If:

  • a person’s conviction is quashed;[14] and
  • the forfeiture does not relate to convictions for other offences that have not been quashed; and
  • the AFP does not apply within 14 days after the conviction is quashed for the forfeiture order to be confirmed;

then the forfeiture order ceases to have effect.

If the AFP are seeking confirmation of a section 92 forfeiture order after that person’s conviction has been quashed, the AFP must give written notice of the confirmation application[15] to the person whose conviction was quashed, and any person whom the AFP reasonably believes may have had, or may have an interest in the property.

The court has a discretion to confirm the forfeiture order if it is satisfied that it could have made a forfeiture order under section 47 or section 49 (in relation to the offence which was quashed), if the authority were to apply for an order under that section. The requisite time limits for a restraining order to have been in place for 6 months for both a section 47[16] and section 49[17] forfeiture order are taken to be satisfied[18] for these purposes.

If the court confirms the order by finding that it could make a section 47 forfeiture order, then the original forfeiture order is taken not to have been affected by the quashing of the person’s conviction.[19]

If the court confirms the order by finding that it could make a section 49 forfeiture order, then if property the subject of the forfeiture order is proceeds of the offence, or (if the offence is a serious offence), an instrument of the offence, then the original forfeiture order is taken not have been affected by the quashing of the person’s conviction.[20]

If the court confirms the order by finding that it could make a section 49 forfeiture order, then if property the subject of the forfeiture order is not proceeds of the offence, or (if the offence is a serious offence), not an instrument of the offence, then the forfeiture ceases to have effect.[21]

If the court decides not to confirm the original forfeiture order, then the original forfeiture order is discharged.[22]


[1] Expansive definition in s 332 Proceeds of Crime Act 2002 (Cth) – referred from s 338 Proceeds of Crime Act 2002 (Cth).

[2] S 80 Proceeds of Crime Act 2002 (Cth).

[3] Technically, it can also be the AFP but the CDPP has carriage of section 48 forfeiture orders pursuant to an agreement between the CDPP and the AFP (CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>).

[4] S 81 Proceeds of Crime Act 2002 (Cth).

[5] S 82 Proceeds of Crime Act 2002 (Cth).

[6] S 84(1) Proceeds of Crime Act 2002 (Cth).

[7] S 47(1)(b) Proceeds of Crime Act 2002 (Cth).

[8] S 49(1)(b) Proceeds of Crime Act 2002 (Cth).

[9] S 84(2) Proceeds of Crime Act 2002 (Cth).

[10] S 85(1) Proceeds of Crime Act 2002 (Cth).

[11] S 85(2)(a) Proceeds of Crime Act 2002 (Cth).

[12] S 85(2)(b) Proceeds of Crime Act 2002 (Cth).

[13] S 85(3) Proceeds of Crime Act 2002 (Cth).

[14] Expansive definition in s 332 Proceeds of Crime Act 2002 (Cth) – referred from s 338 Proceeds of Crime Act 2002 (Cth).

[15] S 82 Proceeds of Crime Act 2002 (Cth).

[16] S 47(1)(b) Proceeds of Crime Act 2002 (Cth).

[17] S 49(1)(b) Proceeds of Crime Act 2002 (Cth).

[18] S 110(2) Proceeds of Crime Act 2002 (Cth).

[19] S 111(1) Proceeds of Crime Act 2002 (Cth).

[20] S 111(2)(a) Proceeds of Crime Act 2002 (Cth).

[21] S 111(2)(b) Proceeds of Crime Act 2002 (Cth).

[22] S 111(3) Proceeds of Crime Act 2002 (Cth).


* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact us for legal advice tailored to your situation. *


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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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