Proceeds of Crime

Published: 14 January 2021
Published: 14 January 2021
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Proceeds of Crime – Queensland

Proceeds of crime offences exist to make it unlawful to receive or possess property that is tainted by crime. While proceeds of crime laws are often used in relation to drug offences, their reach under the Criminal Proceeds Confiscation Act 2002 (Qld) and Proceeds of Crime Act 2002 (Cth) covers all types of serious criminal offences.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about proceeds of crime offences.

If you face a charge relating to the proceeds of crime, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 252 Criminal Proceeds Confiscation Act (Qld)

Section 252 of the Criminal Proceeds Confiscation Act (Qld) makes possession of suspected tainted property an offence in Queensland. The law states:

252 Possession etc. of property suspected of being tainted property

A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.

Beyond the offence of possessing tainted property, there are also money laundering offences that may be charged against people who knowingly or recklessly engage in money laundering.

Meaning of ‘Tainted Property’

The Criminal Proceeds Confiscation Act (Qld) defines ‘tainted property’ in section 104(1) to mean:

104 Meaning of tainted property

(1) Tainted property, for a confiscation offence, means—

(a) property used, or intended to be used, by a person in, or in connection with, the commission of the offence; or

(b) property or another benefit derived by a person from property mentioned in paragraph (a); or

(c) property or another benefit derived by a person from the commission of the offence; or

(d) if the offence is money laundering, property mentioned in section 250(2)(a); or

(e) if the offence is against section 252(1), property mentioned in that subsection.

Beyond the definition set out in section 104 of the Criminal Proceeds Confiscation Act (Qld), ‘tainted property’ is further defined in section 252(4) to include “property that is tainted property because of an interstate confiscation offence’.

Other Definitions

The Criminal Proceeds Confiscation Act (Qld), in Schedule 6, also contains other definitions relevant to the proceeds of crime offence of possessing tainted property. The word “conceal” is defined to include an “attempt to conceal”. The definition of “reasonably suspect” is “suspect on grounds that are reasonable in the circumstances”. The word “suspect”

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, they generally thinking about what makes them ‘not guilty’ of the offence. Because of the presumption of innocence, whenever a person faces a proceeds of crime offence in Queensland, such as possessing tainted property, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. What that means in practical terms is that it is for the prosecution to disprove any defences that may be raised on the evidence. However, there is a reverse onus with respect to the specific defence in section 252(2) of the Criminal Proceeds Confiscation Act (Qld), which means that the law places an onus on the person charged to satisfy the court of their defence.

The rationale for reversing the onus and requiring the person charged to satisfy the court of a specific defence derives from the notion that an offence of this kind involves information that is only within the knowledge of the defendant. The Explanatory Notes to the draft legislation, which became the Criminal Proceeds Confiscation Act (Qld), stated in relation to the offence in section 252:

“The onus on the defendant, in proving the defence, must be satisfied to the civil standard. Placing the onus of satisfying the court in relation to the defence on the defendant is justified as it relates to matters that are peculiarly within the defendant’s knowledge.”

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred because of a mistaken belief as to a relevant fact, or that it was an accident, or otherwise claim a right to have acted as they did. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘possessing tainted property’

Section 252(2) creates a specific defence for a charge of possessing suspected tainted property. It states:

If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity.

This section reverses the onus, which means it is for the defendant to prove (on the balance of probabilities) that they had no reasonable grounds for suspected that the property was tainted or derived from any form of unlawful activity. As such, it is not for the prosecution to prove that any evidence called by or for the defendant is unsatisfactory, it is for the person charged to satisfy the court of that fact.

Penalties & Sentences

Maximum Penalty

The maximum penalty for the offence of possessing tainted property under section 252 of the Criminal Proceeds Confiscation Act (Qld) is 100 penalty units or 2 years imprisonment.

Minimum Penalty

There is no minimum penalty for the proceeds of crime offence of possessing tainted property under section 252 the Criminal Proceeds Confiscation Act (Qld).

Sentencing in Queensland

For a charge of possessing tainted property, the Penalties and Sentences Act (Qld) sets out a range of relevant sentencing considerations. For financial crimes of this kind, the law states that the court must have regard to the following considerations:

(a) principles that—

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

(b) the maximum and any minimum penalty prescribed for the offence; and

(c) the nature of the offence and how serious the offence was, including—

(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under section 179K; and

(ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and

(d) the extent to which the offender is to blame for the offence; and

(e) any damage, injury or loss caused by the offender; and

(f) the offender’s character, age and intellectual capacity; and

(g) the presence of any aggravating or mitigating factor concerning the offender; and (ga) without limiting paragraph (g), whether the offender was a participant in a criminal organisation—

(i) at the time the offence was committed; or

(ii) at any time during the course of the commission of the offence; and

(h) the prevalence of the offence; and

(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

(j) time spent in custody by the offender for the offence before being sentenced; and

(k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and

(l) sentences already imposed on the offender that have not been served; and

(m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and

(n) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and

(o) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender’s successful completion of the program or course; and

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

(i) the offender’s relationship to the offender’s community; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and

(q) anything else prescribed by this Act to which the court must have regard; and

(r) any other relevant circumstance.

Possible Outcomes

A wide range of penalties may be imposed for possessing tainted property under section 252 the Criminal Proceeds Confiscation Act (Qld), ranging from bonds where no conviction may be recorded right through to a term of imprisonment. Confiscation of any property that is the subject of the charge may also be ordered, as well as other fines and penalties.

Significant Cases

The law involving the proceeds of crime offence of possessing tainted property has involved a number of significant legal decisions over time, including in the District Court. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with possessing tainted property.

Queensland District Court

In Russell v Commissioner of Police [2019] QDC 117, Judge Cash QC allowed an appeal where the magistrate who tried the charge originally had misunderstood the elements of the offence. It was stated at paragraph [2]

As the prosecution correctly concedes, at least one of those grounds must succeed. The magistrate misunderstood the elements of the offence. He considered it necessary only to assess whether the suspicion held by the police officer was a reasonable one in the circumstances then confronting the officer. This was an error. The real question for the magistrate was whether he was satisfied on the evidence in the trial that the money “may reasonably be suspected of being tainted property” (see McKeever v McGee; ex parte McGee [1995] 1 Qd R 621,632).

The following offences are possible charges that may be substituted for, or charged in addition to, a charge of fraud:

Proceeds of Crime - Criminal Law Expertise