The NSW Crime Commission (the Commission) works to reduce the incidence of serious and organised crime throughout NSW. While more commonly known for conducting criminal investigations through its Criminal Investigation Division (CID), the Commission’s Financial Investigations Division (FID) specialise in identifying assets and proceeds of crime, to support the discharge of the Commission’s functions under the Criminal Assets Recovery Act 1990 (‘the CAR Act’). We explore the information presented by the Commission in its confiscations fact sheet.
How are financial investigations linked to criminal investigations?
Financial investigations are an invaluable aid to criminal investigations, as the majority of activities of organised crime groups are motivated by money.
The FID’s Criminal Investigation Support Team is co-located with the CID and provides forensic accounting contributions to the CID’s work. Conversely, the CID is a source of intelligence and evidence for the FID to use in confiscation action.
What is the confiscation process?
The confiscation process typically progresses through the following steps:
- The FID receives a referral, e.g. from the CID or from a partner agency such as the NSW Police.
- The FID assesses the referral to determine whether or not the Commission should commence confiscation proceedings in the matter.
- If the Commission determines that there are sufficient grounds to start confiscation proceedings, it will prepare the necessary court papers.
- Proceedings are commenced, and in most cases the Commission makes an application for a restraining order. All relevant applications are made through the Supreme Court of NSW (‘the Court’).
What factors does the Commission consider when assessing a referral?
The most notable factors considered by the Commission include:
- the Commission’s prospects of proving a relevant offence to the civil standard;
- the total assets available to satisfy any order against the defendant;
- the likely costs of litigation;
- the extent to which those litigation costs would be met out of restrained funds that would otherwise be confiscated;
- the evidence that particular interests in property were lawfully or unlawfully acquired;
- the evidence available to demonstrate that the proceeds have been derived from illegal activity and to prove the amounts so derived; and
- the prospects of the defendant or someone else securing relief from confiscation on the grounds of hardship or other possible grounds
How are confiscation proceedings finalised?
The Court either makes a confiscation order, or makes an order dismissing the Commission’s application for a confiscation order. In both cases, the orders may be made by consent or as a result of a contested hearing.
When proceedings are finalised by consent the defendant is required to provide a warranty as to their interests in property as at the date of the signing of the final consent orders. If the Commission subsequently discovers that the defendant failed to disclose an interest in property, the provisions of the CAR Act provide for the forfeiture of the undisclosed interest. If the defendant disposed of the undisclosed interest before it was discovered, the provisions allow for an order to be made requiring the defendant to pay to the Treasurer an amount equal to the value of the undisclosed interest.
In which situations does the Commission not commence confiscation proceedings?
There are two main situations in which the Commission does not commence confiscation proceedings:
- the value of the potential defendant’s assets is not high enough to make proceedings worthwhile; or
- the assessment process indicates that it is unlikely that the potential defendant has derived sufficient proceeds of crime to make the proceedings viable.