Asset Confiscation and Forfeiture: An Overview
- Over 30 years experience in the criminal justice system
- Track record of success
- Nationally acclaimed expertise
Free Legal Advice 24/7
Asset forfeiture involves the confiscation of assets from individuals suspected of involvement in criminal activity. This process can occur without a conviction in some cases, through civil forfeiture orders, or after a conviction via discretionary or automatic forfeiture orders.
The laws surrounding asset confiscation aim to strip offenders of their ill-gotten gains and prevent the use of tainted property in further criminal activity. Innocent parties can also be affected by these orders if their property becomes subject to a restraining or forfeiture order.
What the Prosecution Must Prove:
In asset confiscation cases, the prosecution must establish:
1.Connection to Criminal Activity:
For a forfeiture to proceed, the property must be connected to criminal activity, either as “tainted property” (used in or derived from the crime) or as property under the control of the accused.
2.Suspicion of Criminal Involvement (Civil Forfeiture):
For civil forfeiture, the prosecution does not require a conviction. They must prove that law enforcement has reasonable grounds to suspect the property was involved in a Schedule 2 offence.
3.Conviction for Conviction-Based Forfeiture:
In conviction-based forfeitures, the prosecution must first secure a conviction for a relevant Schedule 1 or Schedule 2 offence, depending on whether the forfeiture is discretionary or automatic.
Penalties for Asset Forfeiture:
The penalties associated with asset forfeiture include:
- Loss of Property:
The primary penalty is the loss of property connected to the offence.
- Pecuniary Penalty Orders (PPOs):
Courts can impose PPOs, requiring offenders to pay an amount equal to the financial proceeds of the crime.
- Restitution or Compensation:
Property or funds may also be ordered for restitution or compensation under the Sentencing Act 1991 (Vic).
Where the Case Will Be Heard:
Asset confiscation cases are typically heard in the Supreme Court or County Court of Victoria, depending on the severity of the offence and the complexity of the confiscation order. Civil forfeiture applications may proceed through a civil court without criminal charges.
Factors and Defences to Consider:
Several defences and factors must be considered when facing asset forfeiture, including:
- Exclusion Orders:
A person with an interest in the property may apply for an exclusion order to have the property excluded from the restraining or forfeiture process. The applicant must prove on the civil standard that the property is not tainted, or they had no knowledge of the criminal activity.
- Third-Party Claims:
Innocent third parties affected by the confiscation may claim their property through legal avenues if they can show they were not involved in the alleged offence.
- Effective Control of Property:
The prosecution must demonstrate the accused had effective control over the property, which can be indirect (e.g., through trusts or companies).
Types of Forfeiture Orders:
The Confiscation Act 1997 provides for several types of forfeiture orders:
- Discretionary Conviction-Based Forfeiture:
After a conviction for a Schedule 1 offence, the Court may order the forfeiture of tainted property.
- Automatic Forfeiture:
If convicted of a more serious Schedule 2 offence, all restrained property is automatically forfeited unless excluded by an exclusion order.
- Civil Forfeiture:
Property may be forfeited without a criminal conviction based on reasonable suspicion of involvement in a Schedule 2 offence.
Testimonials
What people Say
St Kilda, Victoria 3182
1800 130 120
-
Michael Sunderland from MK Law handled my matter with professionalism, respect, and genuine care. It was clear that he genuinely cared about gett... Read MoreMichael Sunderland from MK Law handled my matter with professionalism, respect, and genuine care. It was clear that he genuinely cared about getting the best result possible, and his preparation and courtroom presence reflected that commitment. Michael’s professional demeanour and respectful conduct, both with me and within the court, gave me the utmost confidence I was in the right hands. He clearly explained the process, kept me informed, and made me feel confident throughout. The outcome was far better than I expected, thanks to his expertise and strategic approach. I’m truly grateful for his support and wouldn’t hesitate to recommend him. Read Less55/5
-
I cannot thank Michael Sunderland from MK Law enough for the way he handled my case. From the very beginning, Michael was highly professional, kno... Read MoreI cannot thank Michael Sunderland from MK Law enough for the way he handled my case. From the very beginning, Michael was highly professional, knowledgeable, and thorough in every aspect of the process. He took the time to explain everything clearly, which gave me great comfort and confidence throughout what could have been a very stressful time. Michael’s expertise and guidance reassured me that I was in the best hands, and his calm and confident approach made a huge difference to my peace of mind. He was always approachable, responsive, and dedicated to achieving the best possible outcome for me. I would highly recommend Michael Sunderland to anyone seeking a lawyer who is not only exceptionally skilled but also genuinely cares about his clients. Read Less55/5
-
I would like to sincerely thank Ashleigh for her exceptional support and professionalism during a very difficult time in my life. From the first m... Read MoreI would like to sincerely thank Ashleigh for her exceptional support and professionalism during a very difficult time in my life. From the first meeting, she was calm, respectful, and clear about what I could expect. She never judged me, always listened carefully, and explained every step of the legal process in a way that made me feel supported and confident. Ashleigh handled my case involving a traffic offence with care and honesty. She gave me solid advice, helped me prepare all the right documents, and even guided me on how to speak respectfully in court. Because of her help, I was able to present myself properly before the judge and achieve a much better outcome than I expected. What really stood out to me was her genuine concern for my future. She didn’t treat me like “just another case.” Ashleigh is not only a skilled lawyer — she is also a kind person who truly cares about her clients. I highly recommend Ashleigh to anyone in need of legal help. She is trustworthy, professional, and goes above and beyond for her clients. Thank you again for everything. Read Less55/5
-
I would like to highly recommend Michael Sunderland. Michael took on my matter from another lawyer that was not able to represent me at the time. ... Read MoreI would like to highly recommend Michael Sunderland. Michael took on my matter from another lawyer that was not able to represent me at the time. Michael was well prepared, taking onboard all the information, with communication all the way. He clearly explains all the outcomes and was by my side every step of the way. A genuine caring lawyer that has your best interest. Read Less55/5
Next Steps: Contacting MK Law:
If your property is subject to a restraining or forfeiture order, it is critical to seek legal representation promptly. MK Law has extensive experience in resisting asset confiscation applications by the Crown. Our legal team will work to protect your rights and property by challenging forfeiture applications, preparing exclusion orders, and ensuring due process is followed.
Contact MK Law today on 1800 130 120 for a consultation and let us assist you in navigating the complexities of asset confiscation and forfeiture law.
Free Legal Advice 24/7
Contact Us
Call Anytime For Free Legal Advice 24/7
Top 5 firms by reputation dealing with traffic and criminal law matters.
- 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
- 1800 130 120
- marcus@mklawfirm.com.au