Proceeds of Crime A Guide For Solicitors by Brian Walker, Barrister Clarence Chambers Level 21, 133 Castlereagh Street SYDNEY NSW 2000 (02) 9188 5251 [email protected] an unedited version – December 2020 Information contained in this article is of a general nature only and should not be relied upon as concise legal advice. Contents History 4 […]Continue reading
Proceeds of Crime Quick Reference Guide
Restraining Orders The purpose of Restraining Orders is to restrain property to prevent its dissipation until the conclusion of the proceedings which usually occurs at forfeiture. POCA restraint can occur without a criminal conviction and/or without a criminal charge. Generally POCA action will commence though when a suspect has been charged as it is then […]Continue reading
Restraining Orders relating to people convicted of or charged with indictable offences – s 17 This Restraining Order allows the restraint of property of a person whom has been convicted of, charged with, or it is proposed that they be charged with an indictable offence.[1] An authorised officer will need to depose that the officer […]Continue reading
Restraining Orders relating to people suspected of committing serious offences – s 18 This Restraining Order allows the restraint of property of a person whom it is suspected has committed a serious offence.[1] The fundamental difference between s18 and s 17 Restraining Orders is that s 17 applies to indictable offences, whereas s 18 applies […]Continue reading
Restraining Orders relating to property (in rem) suspected of being proceeds of indictable offences – s 19 This Restraining Order allows the restraint of property where there are reasonable grounds for suspecting the property is the proceeds of an indictable offence inter alia,[1] or an instrument of a serious offence. Generally, proceeds of an offence […]Continue reading
Restraining Orders relating to literary proceeds from indictable offences – s 20 This Restraining Order allows the restraint of property of a person where there are reasonable grounds to suspect that a person has committed an indictable offence and the person has derived literary proceeds[1] in relation to the offence. Literary proceeds are any benefit […]Continue reading
Restraining Orders relating to unexplained wealth – s 20A Restraining Orders pertaining to unexplained wealth were introduced via the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth). The unique element of unexplained wealth orders is that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s […]Continue reading
Allowance for Expenses The court has a discretion to allow reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person to be met out of property covered by a restraining order,[1] if inter alia, the court is satisfied that the person cannot meet the expense or debt […]Continue reading
Excluding Property from Restraining Orders (ss 17, 18, or 19) In order to get an interest excluded from a restraining order, generally speaking, the court must be satisfied that the specified interest in property is neither proceeds, nor an instrument.[1] If an ex-parte restraining order is made, a person whom claims an interest in property […]Continue reading
