Facing a Proceeds of Crime Investigation in Victoria: A Legal Guide

Proceeds of crime investigations and asset restraint proceedings can run independently of, and often ahead of, a criminal charge. The ability to restrain assets before any conviction is established means that proceeds of crime action can affect a person's financial position, business operations, and legal costs well before any criminal matter is resolved.

This is general information only and is not legal advice for any specific matter.

Understanding the Framework

What legislation governs proceeds of crime action in Victoria?

Two principal legislative frameworks apply. The Proceeds of Crime Act 2002 (Cth) applies to proceeds of Commonwealth offences and is administered by the AFP and CDPP. The Confiscation Act 1997 (Vic) applies to proceeds of Victorian state offences and is administered by state police and prosecutors. Both frameworks allow for restraint, forfeiture, and civil recovery of assets connected to criminal offending. The Commonwealth framework also provides for unexplained wealth orders in some circumstances.

What is asset restraint and when can it be applied?

Asset restraint orders freeze specified assets, preventing the owner from dealing with, selling, or using them. Under both the Proceeds of Crime Act 2002 (Cth) and the Confiscation Act 1997 (Vic), restraint can be ordered before any charge is laid where there are grounds to believe the assets are proceeds of or used in connection with an offence. Once a restraint order is in place, the owner must comply with its terms or face contempt of court. Assets subject to restraint include real property, bank accounts, vehicles, shares, and business interests.

What is an unexplained wealth order?

Under the Proceeds of Crime Act 2002 (Cth), an unexplained wealth order can require a person to demonstrate that their total wealth was not derived from unlawful activity. Unlike ordinary asset recovery proceedings where the government must connect specific assets to specific offences, an unexplained wealth order shifts the burden to the person to explain their wealth. The order is available in limited circumstances and requires specific grounds to be established. Not all states have adopted the Commonwealth unexplained wealth framework.

The Investigation and Restraint Phase

How does a proceeds of crime investigation begin?

Proceeds of crime investigations can begin as a component of a broader criminal investigation or independently. The AFP and State Police financial intelligence units conduct asset analysis alongside criminal investigations in serious matters. First indication of a proceeds investigation may come through execution of a search warrant, a freezing order on a bank account, or service of a formal restraint order. In some cases, a restraint order is served at the same time as or shortly after a criminal charge is laid; in others, it precedes the charge.

How should I respond when assets are restrained?

Seek legal representation immediately. Restraint orders are made by a court and have immediate effect. The options available on service of a restraint order include applying to vary or revoke the order, applying to exclude specific assets from the order, and applying for an allowance from restrained funds for legal expenses or living costs. Each of these requires a specific legal application. The time available to respond is limited, and the approach taken to the restraint order can affect the criminal matter that runs alongside it.

Can restrained funds be used to pay for legal representation?

Applications for access to restrained funds for legal expenses are possible under both the Commonwealth and Victorian frameworks, but are subject to conditions and are not automatically granted. The court assesses whether access is appropriate having regard to the nature of the restraint, the available legal aid, and the circumstances. Where restrained funds are the accused's primary means of funding a defence, this application can be critically important. Legal advice about the application is itself a practical issue that arises immediately on service of a restraint order.

What is the relationship between the restraint order and the criminal charge?

Restraint and criminal proceedings are separate but interconnected. A restraint order does not determine guilt and the criminal presumption of innocence applies. However, the existence of a restraint order affects the accused's practical position, including the ability to fund legal defence, manage business obligations, and meet living expenses. The asset proceeding and the criminal matter often run on different timelines and before different courts, requiring coordinated management.

What This Means Practically

What assets can be restrained?

Both the Commonwealth and Victorian frameworks allow restraint of a broad range of assets including real property, bank accounts and deposits, shares and financial instruments, vehicles, businesses and business assets, trust assets in some circumstances, and other personal property. Third party assets may also be subject to restraint where they are alleged to be connected to the offending. The breadth of what can be restrained means that the practical impact of a restraint order can extend across the accused's entire financial position.

What are the business consequences of asset restraint?

Where business assets are restrained, the ability to operate the business may be immediately affected. Restraint of business bank accounts prevents payment of suppliers, staff, and overhead. Restraint of vehicles, equipment, or real property used in business operations can prevent trading. An administrator or receiver may be appointed in serious cases. The business consequences of asset restraint need to be managed alongside the criminal defence from the outset, often requiring coordinated advice across criminal law, insolvency, and commercial practice.

What happens if the criminal matter is resolved by acquittal or withdrawal?

An acquittal or withdrawal of the criminal charge does not automatically end the proceeds of crime proceeding. The civil forfeiture framework operates independently of the criminal outcome in some circumstances, particularly under the Commonwealth framework. Application to have restrained assets released or a forfeiture order set aside may be required as a separate step after the criminal matter resolves. The interaction between the criminal and asset proceedings needs to be understood from the outset of both matters.

How These Matters Are Defended

How are proceeds of crime proceedings contested?

Proceedings under both the Commonwealth and Victorian frameworks can be contested on a number of grounds including that the assets are not proceeds of or connected to the relevant offence, that the person had no knowledge of the criminal origin of the assets, that the assets are excluded property under the relevant legislation, or that the restraint order was improperly made. Expert financial evidence and careful analysis of the connection between specific assets and alleged offending are central to most contested proceeds proceedings.

How long do proceeds proceedings take?

Proceeds of crime proceedings can run for years, particularly in complex matters involving large asset pools, multiple entities, or parallel criminal proceedings. The timeline depends on the complexity of the asset analysis, the nature of any contested hearings, and whether resolution is reached by agreement or through contested proceedings. Managing the asset proceedings over that timeline while also managing a parallel criminal matter requires sustained legal engagement.

Can proceeds proceedings be resolved by agreement?

Both the Commonwealth and Victorian frameworks contemplate negotiated resolution of proceeds proceedings. Settlement can involve agreed forfeiture of specified assets in exchange for release of others, or payment of a pecuniary penalty in lieu of forfeiture. The terms of any settlement need to be assessed against the strength of the restraint and forfeiture case and the impact of the proposed settlement on the criminal matter.

Selection of Counsel

What should I look for in a lawyer for proceeds of crime matters?

Proceeds of crime proceedings require practitioners familiar with both the Proceeds of Crime Act 2002 (Cth) and the Confiscation Act 1997 (Vic) frameworks, the asset tracing and forensic accounting evidence that underpins them, and the interaction with any parallel criminal matter. Experience specifically in asset recovery and confiscation proceedings, as distinct from general criminal defence, is the relevant credential for serious matters in this category.

When should I engage a lawyer?

Immediately on service of any restraint order or notice of a proceeds investigation. The time for responding to a restraint order is limited, and the decisions made in the early days, including whether to apply to vary the order, whether to apply for access to funds for legal expenses, and how to manage any business consequences, are among the most consequential in the matter.

Selection of counsel in proceeds of crime matters depends on the specific charge, the court and jurisdiction involved, and the circumstances of the matter. Doogue + George is among the Melbourne criminal defence firms with senior practitioners experienced in this category of work. Early engagement of senior counsel, particularly before any record of interview or formal investigation step, is consistently the factor that most affects what options remain available.