Any person who receives a financial benefit from involvement in serious criminal activity can be the subject of restraining or freezing orders from the New South Wales Crime Commission.
A person who has been convicted, or who has been suspected of being involved in serious criminal activity can be subject to proceeds of crime proceedings. Being subject to proceeds of crime proceedings can occur whether or not you have been convicted of any criminal offence.
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The Criminal Assets Recovery Act 1990 (NSW)
The Criminal Assets Recovery Act 1990 (NSW) gives the NSW Crime Commission extensive investigative capabilities into a person’s financial assets and affairs. The Crime Commission will investigate whether there a person has been involved in any serious criminal activity, and whether any financial assets (e.g. bank accounts) or property has been tainted by the proceeds derived from their involvement in serious criminal activity.
Serious criminal activity can include:
- Being involved in the supply of prohibited drugs for financial gain;
- Obtaining money by way of fraudulent means (e.g. fraudulent use of credit cards); or
- Extortion, bribery or blackmail.
Restraining Orders and “Interests” in Property
The Crime Commission can seek an order from the Supreme Court asking for a restraining order so that specific property, interests, bank accounts, or property held in a false name cannot be dealt with or disposed of by the person that is the subject of the order.
An interest in property can include any form of personal or real property, that may have been tainted by funds that a person has obtained through their involvement in serious criminal activity.
The NSW Crime Commission can seek a restraining order over an individual even if that person has been tried and acquitted of an offence, or if someone has been convicted of the offence and that conviction has, on appeal, been quashed or set-aside.
All the NSW Crime Commission has to prove is that the property has been tainted or is substantially connected to the offence.
What happens if I receive a Summons from the NSW Crime Commission?
The NSW Crime Commission has the power to issue a summons requiring a person to appear before the Commission at a hearing to give evidence and to produce such documents as required.
It is a criminal offence should you fail to comply with the Summons, and the maximum penalty that can be imposed is two years imprisonment or a fine of $2,200.00.
If I have been charged with a criminal offence, am I required to comply with the Summons?
Yes you are required to comply with the summons.
However, should the NSW Crime Commission wish to examine you whilst your criminal proceedings are ongoing, then the Crime Commission must first seek leave from the NSW Supreme Court to examine you.
If the Crime Commission are seeking to ask you questions regarding the criminal offence (and how the alleged profits were derived from your alleged involvement in that offence), then the Supreme Court must be satisfied that any prejudicial effect that is likely to arise to your trial is outweighed by the public interest in answering the Commission’s questions.
Can my answers at the NSW Crime Commission be used against me?
You do have the right against self-incrimination, however, there can be derivative use of the evidence you give in a NSW Crime Commission compulsory examination.
Section 35A(3) of the Crime Commission Act 2012 (NSW) states:
Evidence obtained pursuant to leave granted for the purposes of this section cannot be used against the person in any civil or criminal proceeding (other than a proceeding for an offence against this Act or an offence relating to the falsity of evidence given by the witness) or in any disciplinary proceeding, but is not inadmissible as against other persons.
How can we help?
If you have been issued with a Summons to attend the NSW Crime Commission or have had your assets restrained through a freezing or restraining order then you should contact one of our experienced criminal defence lawyers.
- Ensure your rights are protected during any compulsory examination.
- Challenge the assets that have been sought to be restrained pursuant to the restraining and/or freezing order.
- Liaise with the NSW Crime Commission to have certain assets unrestrained.