Section 48 Forfeiture Orders – Convictions for indictable offences

Section 48 forfeiture orders are a stand-alone type forfeiture order and are not dependent upon having a restraining order on foot. While the AFP have carriage of most matters relating to POCA, both the AFP and the CDPP have the authority under the act to make applications.[1] Pursuant to an agreement between the CDPP and the AFP,[2] the CDPP are the authority that make applications under POCA for the purposes of section 48.

The required elements are:

• The CDPP applies to a court with proceeds jurisdiction for the order;
• A person has been convicted[3] of one or more indictable offences;
• The court is satisfied that the property to be specified in the orders is proceeds[4] or an instrument[5] of one or more of the offences.

If the court is satisfied that the property to be specified in the order is proceeds of one or more of the offences, the court must make the forfeiture order.[6] If the court is not satisfied that the property to be specified in the order is not proceeds of one or more of the offences,[7] but the court is satisfied that the property to be specified in the order is an instrument of one or more of the offences, the court has a discretion to grant the forfeiture order.[8]

The discretion afforded in relation to the forfeiture of instruments of crime is in recognition that forfeiture of instruments may be unduly harsh in some circumstances. An example is a court finding that a hire car is an instrument of an indictable offence, and therefore liable to forfeiture. Given the use that is ordinarily made of the car (viz. s 48(3)(b) POCA), the court may decline to make the forfeiture order.[9]

In making the order, the court can consider:[10]

• Any hardship that may reasonably be expected to be caused to any person by the operation of the order;
• The use that is ordinarily made, or was intended to be made, of the property to be specified in the order;
• The gravity of the offence or offences concerned.

---

[1] See the definitions of ‘responsible authority’ and ‘proceeds of crime authority’ in section 338 Proceeds of Crime Act 2002 (Cth).

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

[3] What constitutes being ‘convicted’ for the purposes of POCA is ambiguous. A conservative interpretation is that conviction for POCA purposes occurs upon sentencing, but consideration of the term ‘conviction’ for the purposes of other asset confiscation legislation has required a lesser threshold, for example when a guilty plea is accepted (DPP (Cth) v Elias Helou [2003] NSWCA 301).

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

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

[6] S 48(1) Proceeds of Crime Act 2002 (Cth).

[7] S 48(2)(c) Proceeds of Crime Act 2002 (Cth).

[8] S 48(2) Proceeds of Crime Act 2002 (Cth).

[9] Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.

[10] S 48(3) Proceeds of Crime Act 2002 (Cth).

About Post Author