CURRENT TOPICS

Is a notion both under the Confiscation of Proceeds of Crime Act 1989 (NSW) (COPOC), Criminal Assets Recovery Act 1990 (NSW) (CARA) and Proceeds of Crime Act 2002 (CTH) (POCA).

COPOC is a conviction based Act and operated primarily by the NSW DPP. As a general rule the Act is invoked when property is deemed to have become ‘Tainted’ by virtue of an offence. (Noting the offence must be a serious offence pursuant to section 5 of COPOC.)

The defining of particular property as being tainted by the offence is the vital first step in the forfeiture process pursuant to section 18 of COPOC. Once taint is established the onus then reverts upon the convicted person to avoid the discretion to forfeit by evidencing either hardship or the normal and intended use of the asset.

The NSW DPP has in recent times sought to extend the definition of ‘taint.’ However to date those efforts have proved unsuccessful. For property to be tainted there must be a substantial connection between the property and the offence.

CARA and POCA, deal with tainted property in a not dissimilar way, that if tainted the property should be forfeited.