fbpx

Proceeds of Crime Ancillary Orders

0 Comments

Ancillary Orders

The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders.[1] Ancillary orders are generally directed at giving effect to restraining orders inter alia.

Ancillary order examples include:

  • An order directing the suspect in relation to the restraining order to give a sworn statement to the AFP, setting out all of their interest in property, and their liabilities.[2]
  • Orders requiring an owner or previous owners of property to provide a sworn statement, setting out dealings with the property.[3]
  • Orders requiring another person (if the court is satisfied that there are reasonable grounds to suspect that the person has information relevant to identifying, locating or quantifying the property), to produce a sworn statement setting out dealings with the property.[4]
  • Orders concerning the mechanics and practicalities of AFSA actually taking custody and control of certain items.[5]

It’s worth noting in regards to the sworn statement provisions, that pleading privilege against self-incrimination is expressly denied as an excuse.[6] Notwithstanding this, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement[7] except in:

  • Criminal proceedings for giving false or misleading information;
  • Proceedings on an application under the POCA;
  • Proceedings ancillary to an application under POCA;
  • Proceedings for enforcement of a forfeiture order, pecuniary penalty order, literary proceeds order or an unexplained wealth order.

While a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement, it is worth noting:

  • It is admissible in proceedings against another person;[8]
  • Using the information derivatively is not prohibited.[9] Therefore information or things that are subsequently obtained by authorities acting on information from the sworn statement are potentially admissible in civil or criminal proceedings against the maker of the statement.

So for example, if a sworn statement provided information that the maker of the statement committed a crime, while the statement itself could not be used against that person in a criminal or civil proceeding,[10] this can trigger an investigation into the crime committed (as the maker of the statement said / referred to in their statement). This investigation then can find other evidence which is admissible in criminal or civil proceedings against the maker of the statement;

  • The sworn statement can be provided to other agencies such as State and Territory Police, ATO, and foreign law enforcement bodies.[11]

[1] S 39 Proceeds of Crime Act 2002 (Cth).

[2] S 39(1)(ca) Proceeds of Crime Act 2002 (Cth).

[3] S 39(1)(d) Proceeds of Crime Act 2002 (Cth).

[4] S 39(1)(da) Proceeds of Crime Act 2002 (Cth).

[5] S 39(1)(e) Proceeds of Crime Act 2002 (Cth).

[6] S 39A(1) Proceeds of Crime Act 2002 (Cth).

[7] S 39A(2) Proceeds of Crime Act 2002 (Cth).

[8] Subject to S 266A Proceeds of Crime Act 2002 (Cth) disclosure obligations.

[9] Crimes Legislation Amendment (Serious And Organised Crime) Bill (No. 2) 2009 – Replacement Explanatory Memorandum – Page 51.

[10] Subject to s 39A(2)(a), (b), (c), & (d) Proceeds of Crime Act 2002 (Cth).

[11] Subject to disclosure requirements in s 266A 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. *


0
blank

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.

    You May Also Like

    Leave a Reply

    Your email address will not be published.