You’ve probably seen this happen sometimes: A person who is the subject of criminal charges gets an interview on TV for which they are paid – and widespread commentary suggests they shouldn’t be able to “profit from their crime”.
Of course it’s not as simple of that.
So what happens if you are accused of, charged with or convicted of a crime in Queensland if there is a chance you might profit from the activities in question?
In Queensland, the Criminal Proceeds Confiscation Act 2002 (Act) applies. The Act contains several sections that initiate or authorise confiscation of property or proceeds of crime in Queensland.
Below we set out a summary of the Act and its application in Qld.
The Act maps the legal authority and process for seizing assets and “proceeds of crime.”
The Act can potentially apply to suspected or proven unlawful activity.
Authorities, with proper court approval, can seize any property that falls under the definition of “proceeds or crime” from illegal activity. Realistically this includes most types of assets and revenue that you can think of.
Depending on the circumstances, the Court can order certain funds or assets to be frozen, given orders that you be restrained from certain types of spending or sale, or order that assets or money be forfeited to the State.
Importantly you do not need to be convicted for the authorities to apply for and get authorisation to enforce the Act. However, the status of any criminal proceedings might be relevant in terms of what type of order can be obtained.
Generally speaking, proceeds of crime applications are pursued by either the Queensland Police or the Crime and Corruption Commission – we’ll just call them the “authorities” for this article.
Purpose of the Proceeds of Crime Law
The primary goals of the Proceeds of Crime legislation are to:
- Remove the financial gain from some criminal activity;
- Increase financial loss from criminal activity;
- Serve as a deterrent to committing crimes; and
- Help police trace property acquired through illegal activity.
What Are Proceeds of Crime?
Proceeds of crime are anything of value attached to criminal activity.
Proceeds of crime can include, but are not limited to:
- Real estate;
- Motor vehicles
- Currency including shares & cryptocurrency;
- Personal property;
- Property purchased with other proceeds of crime;
- Royalties from books or movies that include the illegal activity you are accused of;
- Any revenue generated because of the suspect or convicted party’s criminal activity (speaking fees, some consulting charges, etc.)
In short: it’s very wide.
Proceeds of crime apply to all proceeds that are sufficiently related to the alleged illegal activity, including proceeds collected after any applicable prison sentence has been served, or after all fines and associated fees have been paid.
So what kinds of proceeds of crime orders exist?
The Impact of Proceeds of Crime Orders
There are various forms of orders that can be sought by the authorities pursuing a proceeds of crime application. The major options are:
- Freezing bank accounts;
- Property seizure;
- Confiscation of real estate (including selling the real estate);
- Closure of any related commercial enterprises.
In something of a rare situation, if you are on the receiving end of a proceeds of crime application then you have a “reverse” onus of proof.
That is: normally in a criminal charge the prosecution needs to prove that you have committed the crime in question. Here, if an application is brought in relation to your property or income, you have to actively take steps to prove that the property in question is not related to the relevant criminal activity.
Within the Act, several types of orders can be pursued. Those are:
Typically a freezing order is designed to hold everything temporarily in place until more permanent orders can be put in place in the form of a restraint (see below).
So, for example, a freezing order might stop you from withdrawing funds from a bank or mortgage until further notice.
As the name suggests, restraining orders place restraints on what you can or cannot do in relation to certain property.
So, for example, a restraining order might prevent you from going somewhere, speaking to someone, moving property to another place, or taking certain actions that the Court considers might put the relevant property at risk. It may prevent withdrawals over a certain amount, or only allow you to spend money for certain pre-defined circumstances.
A restraining order normally exists to ensure that the property which is said to be a proceed of crime is still intact once the criminal charges go to trial or are otherwise dealt with.
In the usual order of events, a forfeiture order follows a restraining order. So, if you have been restrained from selling a car that you alleged bought with money you made from a drug dealing charge, then subsequently found guilty of that charge, the next step might be for the authorities to pursue the forfeiture of that vehicle.
Here, property or assets suspected of being proceeds of crime can be seized and sold.
The sale proceeds from any property forfeited to the State under these types of orders go back into the general treasury fund.
A pecuniary penalty compels a convicted individual to pay the State the amount of money they made from an illegal transaction.
This might be if, for example, it can be demonstrated that an accused person made money, but that particular money (or property purchased with it) can not be traced or located. As the exact property cannot be identified, a penalty equivalent to its value can be sought.
To obtain such an order, the State must make the application within six months of the conviction date. In most cases, the amount owed is the estimated dollar amount made by the transaction, but it can be the value of an item involved in a transaction.
An unexplained wealth order is where the authorities might believe that you have profited from a crime (or crimes) but cannot directly tie your property to the alleged crime.
If the authorities can demonstrate to the Court that you engaged in serious crime-related activities (or that you got property from someone who did) and you acquired wealth unlawfully, then the Court might be inclined to make an unexplained wealth order.
Your best option is to explain how you legitimately came by certain assets. If you cannot do so, you could have an “unexplained wealth” order made against you.
Here, the court determines an amount which it believes represents the “unexplained wealth” in question, and will order you to pay that sum to the State.
All proceeds gained because of notoriety from an indictable offence can be captured by a literary proceeds order. The order covers revenue you might make from published written materials, live entertainment, and interviews. The court must consider:
- The nature of the alleged action that created the proceeds;
- Whether the action was in the public interest;
- Whether the action had cultural or educational value;
- The level of offence committed; and
- The amount of time that has passed since the offence.
Proceeds of Crime in Summary
Proceeds of Crime legislation can plausibly apply to a wide range of alleged criminal activity.
In some circumstances if the authorities succeed in freezing or restraining your assets for a significant period of time while charges are still pending against you, it can have a major detrimental impact on you and your family.
For that reason if you are in a circumstance where your assets are at risk it’s critical to get legal advice promptly to try and minimise the damage that such an order might do