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Proceeds of Crime – Jurisdiction, Consent Orders, Onus

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Miscellaneous Provisions

Proceedings for an application for a restraining order, forfeiture order, PPO, literary proceeds order or an unexplained wealth order are civil, not criminal in nature.[1] The rules of construction that apply only to criminal law do not apply to the POCA.[2] The rules of evidence that apply only in criminal proceedings do not apply to the POCA.[3]

A bypassing of the statutory requirements in relation to freezing orders, restraining orders, forfeiture orders, PPO’s, literary proceeds orders and unexplained wealth orders can be made if consent is given by the applicant in the proceedings and everyone whom the court has reason to believe would be affected by the order.[4] If the order is a forfeiture order under section 47 or 49, the 6 month time period is not required.[5]

The applicant in any proceedings under the POCA bears the onus of proving the matters necessary to establish the grounds for making the order applied for.[6] This means the onus rests with:

Proceedings Onus
S 15B Freezing Orders AFP
S 17 Application for restraint AFP
S 18 Application for restraint AFP
S 19 Application for restraint AFP
S 20 Application for restraint AFP
S 20A Application for restraint AFP
S 30 Application for exclusion Applicant
S 31 Application for exclusion Applicant
S 39 Ancillary Orders AFP / Applicant
S 39 Application to revoke ancillary order AFP / Applicant
S 42 Application to revoke restraining order Applicant
S 47 Forfeiture order AFP
S 48 Forfeiture order CDPP[7]
S 49 Forfeiture order AFP
S 72 Hardship application Applicant
S 74 Exclusion application Applicant
S 78 Compensation application Applicant
S 93 Extension from automatic forfeiture Applicant
S 94 Exclusion from automatic forfeiture Applicant
S 94A Compensation application Applicant
S 95 Declaration of forfeiture AFP
S 103 Buyback application Applicant
S 116 PPO AFP
S 152 Literary proceeds order AFP
S 179B Preliminary Unexplained Wealth Order AFP
S 179C Application to revoke Preliminary Unexplained Wealth Order AFP
S 179E Application for Unexplained Wealth Order AFP
S 180 Examination Order AFP
S 202 Production Order AFP
S 219 Monitoring Order AFP
S 225 Search Warrant AFP

 

As POCA proceedings are civil in nature, questions of fact are decided on the balance of probabilities.[8]

POCA proceedings must not be stayed on the basis that criminal proceedings have been started or are on foot. Section 319 POCA was expanded following the decision in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5. It is the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice.[9] To prevent prejudice or for any other reason, it’s possible to close the court for proceedings under POCA.[10]

Cooperation in relation to POCA proceedings can be taken into account in sentencing in relation to conviction of an indictable offence.[11]


[1] S 315(1) Proceeds of Crime Act 2002 (Cth).

[2] S 315(2)(a) Proceeds of Crime Act 2002 (Cth).

[3] S 315(2)(b) Proceeds of Crime Act 2002 (Cth).

[4] S 316 Proceeds of Crime Act 2002 (Cth).

[5] As listed in section 47(1)(b) or 49(1)(b) Proceeds of Crime Act 2002 (Cth) respectively.

[6] S 317(1) Proceeds of Crime Act 2002 (Cth).

[7] CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>.

[8] S 317(2) Proceeds of Crime Act 2002 (Cth).

[9] Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 Explanatory Memorandum.

[10] S 319A Proceeds of Crime Act 2002 (Cth).

[11] S 320(a) 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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