Proceeds of Crime Examinations

Compulsory examinations are one of the most powerful tools that come out of the POCA. They are broadly analogous to coercive examination powers contained in state confiscation legislation (which is run by the NSW Crime Commission in NSW), and coercive examination powers in ICAC inquiries.

Often Examinations are sought in the initiating Summons but not pressed until a later date. Relevantly if a person seeks exclusion from a restraining order or exclusion from a forfeiture order, these applications cannot be heard until the AFP have had a reasonable opportunity to conduct an examination.[1] As the examination entails a compulsory examination to answer questions concerning a broad ambit[2] with the threat of contempt looming over the examinee’s head, this is an important consideration a person seeking exclusion should consider as the statutory tests for exclusion from restraint and/or forfeiture are very limited in contrast to the low bar test required for restraint (reasonable suspicion).

Relevantly, privilege against self-incrimination does not apply, nor does legal professional privilege.[3]

Failure to attend an examination is an offence punishable by imprisonment.[4] Failure to answer questions approved by the examiner or to produce a required document are punishable by imprisonment.[5] The fact that someone is contractually obliged not to disclose information does not provide a valid reason to not answer a question.[6] Likewise, an obligation under a law of a foreign country not to disclose information does not provide a valid reason to not answer a question.[7]

An answer or document produced in an examination are not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except in:[8]

• Criminal proceedings for giving false or misleading information;
• Proceedings on an application under the POCA;
• Proceedings ancillary to an application under the POCA;
• Proceedings for enforcement of a forfeiture order, a PPO, a literary proceeds order, or an unexplained wealth order;
• In the case of the document – in civil proceedings for or in respect of a right or liability it confers or imposes.

It should be worth noting that the restriction applies to proceedings against the person who gave the answer (in other words the examinee), it does not limit the admissibility of information provided in an examination in relation to other people. Further, it does not limit the derivative uses that may arise from answers given. For example, if an examinee provides information of a crime that took place, this does not then stop the police investigating the alleged crime and obtaining other evidence (not disclosed at the examination) for use in criminal proceedings against the examinee.

It’s quite possible that an applicant for exclusion of property from restraint and/or forfeiture is subjecting themselves to a compulsory examination with very little chance of obtaining exclusion from restraint and/or forfeiture.

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[1] Restraining Orders: S 32 Proceeds of Crime Act 2002 (Cth), Forfeiture Orders: S 76 Proceeds of Crime Act 2002 (Cth).

[2] S 180(1) Proceeds of Crime Act 2002 (Cth) & definition of “affairs” in s 338 Proceeds of Crime Act 2002 (Cth).

[3] S 197 Proceeds of Crime Act 2002 (Cth).

[4] S 195 Proceeds of Crime Act 2002 (Cth).

[5] S 196(1) Proceeds of Crime Act 2002 (Cth).

[6] S 197(3)(a) Proceeds of Crime Act 2002 (Cth).

[7] S 197(3)(b) Proceeds of Crime Act 2002 (Cth).

[8] S 198 Proceeds of Crime Act 2002 (Cth).

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