How the Government can Take All of Your Assets without Being Convicted or Charged with a Criminal Offence
Part 1:
In Queensland, there are many laws which allow the Government to seize and then sell a person’s assets, whether or not that person is convicted of criminal offences and whether or not the assets were even acquired through by way of these offences. In comparison to other states across Australia, Queensland’s laws are particularly dangerous and the particularly dangerous aspects were introduced by the Newman Government in 2013.
This article forms a two-part series in which Cridland & Hua (which is positioned perfectly to comment as a team of criminal lawyers in Brisbane) how the Government can seize and then sell a person’s assets, given the following scenarios:
Scenario 1: A person is convicted of a criminal offence and their assets were either utilised or derived from their offending
Scenario 2: A person is convicted of a criminal offence but can prove that their assets were acquired lawfully, for example, the assets being acquired well before the offending even commenced
Scenario 3: A person is not ever convicted or even charged with a criminal offence
- Scenario 1: A person is convicted of a criminal offence and their assets were either utilised or derived from their offending
If a person is charged and then convicted of a serious criminal offence in Queensland (and it is proven that their offending has yielded them a significant amount of assets, such as houses, cars or cash), the Government can apply to the Court to seize and then keep all of these assets. The most common types of criminal offences for which such forfeiture applications are brought are drug offences, such as trafficking or supplying dangerous drugs. After all, they are the particular offences for which offenders most commonly amass a significant quantity of assets. There are actually special laws relating specifically to drug-related offenders which are discussed below in Scenario 2.
These forfeiture applications are usually brought and run at the same time as the criminal matter. The criminal matter will be prosecuted by a government body known as the ‘Office of the Director of Public Prosecutions’ (ODPP) and the forfeiture matter will be conducted by the ‘Crime and Corruption Commission’ (CCC). The process which commonly occurs is as follows:
- A person is charged with a criminal offence and is brought before the Courts by the ODPP.
- Shortly after being charged, but before the criminal matter is finalised, the CCC will apply to the Court to have all of that person’s assets seized. This means that the person is not able to sell, give or dispose of any of the assets. These forfeiture proceedings are then adjourned to allow for the criminal matters to finalise.
- If the ODPP is successful in securing a conviction of the criminal offence, the CCC then apply to the Court to have all of the person’s assets forfeited to the State. This usually happens automatically upon a conviction and all that has to be proved was that the assets were either utilised in the offending or were directly derived from the offending. The property is then given to the Public Trustee to sell and the proceeds will go to the Government.
Obviously, this system is designed to ensure that offenders are not able to benefit financially from their offending, which in turn, serves as a deterrent to offenders from offending in the first place. This common method of forfeiture is known as a ‘conviction based’ system, meaning that a person must be convicted of a criminal offence before they will lose all of their assets.
- Scenario 2: A person is convicted of a criminal offence but can prove that their assets were acquired lawfully, for example, the assets being acquired well before the offending commenced
A person still risks losing all of their assets to the Government if they are convicted of a serious drug-related offence, such as trafficking, supplying or producing dangerous drugs, even if they can prove that all of their assets were lawfully acquired. For example, a person might have purchased their home and car with legitimate funds ten years before their offending even commenced. However, if they are linked to drug offences they could lose it all. All that needs to be satisfied in this scenario is that the person is convicted of a serious drug-related offence.
It’s not difficult to imagine how this particular system can produce some very unfair results as it might mean punishing a person’s family members who have done nothing wrong. For example, a man and a woman may marry and purchase a home together. Ten Years after marrying the man might start engaging in drug trafficking. If he is caught and convicted, the wife might lose her share of the house even though she has done nothing wrong.
Part 2:
In Scenario 1 above, we showed that a person can lose their assets if they are convicted of an offence and their assets are proven to be directly acquired by their offending. We also explained Scenario 2, whereby a person can lose their assets if they are convicted of a serious drug offence and can prove that their assets were obtained lawfully.
This article will explain Scenario 3 and how the laws go even further and allow the Government to seize and sell a person’s assets, even if they are never convicted or even charged with a criminal offence.
- Scenario 3: A person is not ever convicted or even charged with a criminal offence
Queensland has some particularly dangerous laws which allow the Government to take all of a person’s assets even if they are never convicted or even charged with a criminal offence. There are essentially two ways that this can occur.
- Civil based system
Firstly, it can occur under a ‘civil based’ system where the CCC can demonstrate that a serious criminal offence has been committed (even if an offender is not convicted) and on balance the person was responsible for the criminal offence. Ordinarily, when a person is charged with a criminal offence, the ODPP must prove to the court ‘beyond reasonable doubt’, meaning with 100% certainty, that the person committed the offence before they can be convicted.
This is how it is conducted under the conviction based system discussed in Scenario 1 above. However, under this civil based forfeiture system, the CCC need only to prove ‘on the balance of probabilities’, meaning 51%, that the person committed the offence. This means that even though a person might be acquitted because it could not be shown with 100% certainty that they committed the offence. Therefore, they could still lose all of their assets if it could be shown with only 51% certainty that they committed the offence.
If a person does not have any assets to forfeit, the way that the amount that the person loses to the Government is calculated pursuant to a ‘Proceeds Assessment Order’. This is essentially a monetary fine that the person must pay. It is a calculation of how much they derived from illegal activity over the last six years. For example, if the evidence reveals that the person was selling an ounce of heroin per day for a profit of $500 per ounce and the offending occurred for 6 months, they would be ordered to pay the Government $90,000 by way of a penalty or fine.
- ‘Unexplained wealth’ system
The second way forfeiture without a conviction or charge can occur is through ‘unexplained wealth’ proceedings. The main object of forfeiture proceedings is to remove the financial gain and increase the financial loss associated with illegal activity. However, senior organised crime figures might fund and support criminal activities but seldom carry them out. This means they are often unable to be linked to specific offences as required by many confiscation schemes.
‘Unexplained wealth’ laws go a step further than traditional confiscation laws as they do not require a link between a person’s significant wealth and a crime and furthermore it reverses the responsibility of who has to prove this link. Essentially, if a financial investigation of a person finds that they have wealth which has no apparent legitimate source given the person’s lifestyle (such as wages or income), a court might place the responsibility on the person to show the wealth was lawfully acquired.
If the person can not show that the wealth was lawfully acquired they risk losing all of their assets to the Government. What this means is that a person with significant assets might not ever be charged with a criminal offence. Yet, they can lose all of their assets if they can’t prove that they acquired the assets lawfully.
If a person is convicted of a criminal offence it would be common sense that they should lose the proceeds from their offending. However, as demonstrated above, Queensland’s laws (which allow for forfeiture even though a person might not ever be convicted or charged) can be particularly dangerous.
Perhaps you have been searching on Google for “criminal lawyer near me” but are worried about getting the right information? In looking for a “drug lawyer”, we might assume you are needing representation for an upcoming trial, but you don’t know where to start?
If you’re needing assistance with matters concerning assault and offences of violence or drug-related offences, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.
