Criminal Proceeds Confiscation Act – Application For Proceeds Assessment Order

What the law says

Section 77 of the Criminal Proceeds Confiscations Act Queensland states:

1. The State may apply to the Supreme Court for an order (proceeds assessment order) requiring a person to pay to the State the value of the proceeds derived from the person’s illegal activity that took place within 6 years before the day the application for the order is made.
2. The State must give notice of the application to the person against whom the order is sought and anyone else required under a regulation to be given notice.

Section 78 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court must make a proceeds assessment order against a person if the court finds it is more probable than not that, at any time within the 6 years before the application was made, the person engaged in a serious crime related activity.
2. However, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.
3. A finding of the court under subsection (1)-
   • (a) need not be based on a finding about the commission of a particular offence; and
   • (b) may be based on a finding that some offence that is a serious crime related activity was committed.

…

Section 82 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court must have regard to the evidence before it about the following-
   • (a) the value of cash and other property that came into the possession or under the control of the relevant person or someone else at the request, or by the direction, of the relevant person, because of the illegal activity;
   • (b) the value of any benefit provided for the relevant person or someone else at the request, or by the direction, of the relevant person, because of the illegal activity;
   • (c)  if the illegal activity involved a dangerous drug or controlled substance (the illegal drug)-
     • (i)   the market value, when the illegal activity happened, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug; and
     • (ii) the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity;
   • (d) the value of the relevant person’s property before, during and after the illegal activity;
   • (e) the relevant person’s income and expenditure before, during and after the illegal activity.
2. The court-
   • (a) may treat as the value of the proceeds the value the proceeds would have had if derived when the valuation is being made; and
   • (b)  without limiting paragraph (a), may have regard to any decline in the purchasing power of money between the time the proceeds were derived and the time the valuation is being made.

Section 83 of the Criminal Proceeds Confiscations Act Queensland states:

1. This section applies if, at the hearing of an application for a proceeds assessment order-
   • (a) evidence is given that the value of the person’s property after an illegal activity was more than the value of the property before the activity; or
   • (b) evidence is given of the amount of the person’s expenditure within the 6 years before the day the application for the order was made.
2. If subsection (1)(a) applies, the court must treat the difference as proceeds derived by the person from the activity, other than to the extent the court is satisfied the reason for the difference was not related to an illegal activity.
3. If subsection (1)(b) applies, the court must treat the amount as proceeds derived by the person from an illegal activity, other than to the extent the court is satisfied the expenditure was funded from income, or amounts from other sources, not related to an illegal activity.
4. The court must not take expenditure into account under subsection (3) to the extent the court is satisfied it resulted in the acquisition of property the value of which is taken into account under subsection (2).

Note that the law with respect to Restraining Orders is set to change later this year.  The changes will extend the power of Police to make applications where the suspected serious crime related activities have occurred outside in any jurisdiction outside Queensland, including overseas.  It will allow the Police to take action in respect of restraining property, where:

• (a) a person is suspected of committing serious crime related actives outside Queensland, including in another country; and
• (b) that person lives in Queensland; and
• (c) the property sought to be restrained is situated in Queensland; and
• (d) the Police have made reasonable enquires to ensure that no other action has been taken in respect of that property outside of Queensland.

Further, the law will change to allow the Court to impose a both pecuniary penalty order i.e. a fine (where you have been found guilty) and a later Proceeds Assessment Order in respect of the same serious crime related activity, so long as the Court takes into account the earlier pecuniary penalty imposed when making the Proceeds Assessment Order.

Keep an eye on this page for updates on when this new legislation comes into effect.

What the police must prove

In order for the State to be successful in their application at Court, it must show the following:

1. (1) It made an application for a Proceeds Assessment Order to the Supreme Court; AND
2. (2) It gave written notice to you as the respondent to that application;AND
3. (3) It is more probable than not, that you engaged in a serious crime related activity in the 6 year period prior to the day the application for a Proceeds Assessment Order was made;
4. (4) You derived property from that serious criminal related activity by showing:
   • (a) You had more property at the end of the 6 year period than you did prior to that period beginning; OR
   • (b) You had any expenditure whatsoever; AND
5. (5) The value of that illegitimate property by producing evidence of:
   • (a) the value of cash and other property that came into the possession or under the control of you or someone else at your request or direction, because of the illegal activity; OR
   • (b) the value of any benefit provided for you or someone else at your request or direction, because of the illegal activity; OR
   • (c) if the illegal activity involved a dangerous drug or controlled substance (the illegal drug)-
     • (i) the market value, when the illegal activity happened, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug; and
     • (ii) the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity; OR
   • (d) the value of the your property before, during and after the illegal activity; OR
   • (e) your income and expenditure before, during and after the illegal activity.

It is not necessary for the State to prove you committed any offence, but rather that it is more probable than not that the respondent committed serious crime related activity in the past 6 years.  Further, once it is found that you committed serious crime related activity/ies in the past 6 years, the Court will presume all property accumulated and all expenditure made during that period was derived from proceeds of the crime related activity/ies, unless you can show otherwise.

Note that in regards to evidence of the market value of illegal drugs, this evidence may be given by a Police Officer, Federal Police Officer or Customs Officer.

Maximum penalty

If the application is successful, the Court will impose a Proceeds Assessment Order. The effect of such an order is that the value of such property that is found to have been derived from illegal activity by you, becomes a debt payable to the State and therefore you will be required to pay the amount stated in the order to the State.  Accordingly, the Court may make additional orders in order to facilitate the ordered payment to the State.

You are entitled to attend the hearing of the application. However, your absence will not preclude the Court from making a Proceeds Assessment Order against you.

Further, even if you are later found not guilty of the serious crime related activities, the Proceeds Assessment Order may still remain as the test of proof in respect of such order is looser.

It is important that you understand that in assessing the value of property derived from illegal activity, the Court is able to look at all serious criminal related activity of the respondent (i.e. you) during the 6 year period prior to the application being made, not just the particular activity/ies upon which the application was based.  Further, the Court will disregard any expenses or outgoings incurred by you in relation to the illegal activity/ies (for example the cost of acquiring drugs).

Note, the Court may also assess the value of the property as at the date the Court makes such valuation.  This means that you may be required to pay more than the value of the property when it was actually acquired.  For example, if it is found that the market value of the drugs sold has increased, you maybe be required to pay the increased value of those drugs.

Where you have already had some property forfeited under a Forfeiture Order, the Court may order that the value of that property be deducted from the amount you are required to pay to the State under the Proceeds Assessment Order.  However, in the event that prior Forfeiture Order is later revoked on appeal, the State may apply to have the amount that was deducted from the Proceeds Assessment Order reinstated.

Note that the law is about to change to allow the State to also make an application to increase the amount of the Proceeds Assessment Order, where property is subsequently excluded from a Forfeiture Order.

In order to protect its interest in terms of the repayment of the debt, the State may put a charge over your property.  Click here to find out more.  Further the State may also put a charge over property that is not in your name, but is found to be in your effective control.  Click here to find out more.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

There are no defences to this application, but rather grounds upon which a person can oppose the application or at least the alleged amount sought in the application. Possible grounds to oppose this application include:

1. The respondent (i.e. you) was not given reasonable notice of the application (note this would really only buy you more time to prepare your opposition).
2. It is more probable than not, that you did not engage serious crime related activity in the previous 6 years.
3. All or part of the property was derived from legitimate sources.
4. All or part of the expenditure was from the proceeds of legitimate sources.
5. The property was accumulated prior to or after the relevant 6 year period.
6. The order is not in the public interest.

In attempting to show that it is more probable that you did not engage in serious crime related activity, it is not enough to merely raise doubt.  The doubt must be enough to make the Judge form the opinion that it is more probable that you did not engage in serious crime related activity/ies. You would only attempt to show this in the event that you were found not guilty of the serious crime related activity/ies.