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The Crime Commission’s mission is to pinpoint and focus on individuals who have amassed wealth without a clear lawful source. The law governing unexplained wealth necessitates individuals living beyond their ostensible means to substantiate the legality of their financial situation.
This law aims to discourage criminal activities, particularly organised crime, by diminishing the gains from illicit pursuits. Crime Commission holds the authority to scrutinise and commence confiscation proceedings pertaining to unexplained wealth in order to thwart criminal endeavours in Australia.
The New South Wales Crime Commission (NSWCC) is a specialised law enforcement agency operating within the state of New South Wales, Australia. Established in 1986, its primary objective is to investigate and combat serious and organised crime. The NSWCC operates independently and is tasked with addressing criminal activities that have a significant impact on the community. Here are some key aspects of the NSW Crime Commission:
The NSWCC is entrusted with the responsibility of investigating and gathering intelligence on a wide range of criminal activities, including drug trafficking, money laundering, firearms offences, and other serious organised crime or criminal offence. They are usually the prosecuting authority in these types of unexplained wealth provision matters.
The commission operates autonomously from other law enforcement agencies. This independence is crucial to ensure that investigations are conducted without any undue influence and to maintain public confidence in its operations.
Powers and Authorities
The NSWCC is vested with substantial powers, allowing it to compel individuals to provide information and documents, summon witnesses, and conduct covert operations. These powers are critical for the commission’s effectiveness in tackling sophisticated criminal enterprises. The NSWCC can ask for interim freezing orders, a restraining order, and seizure of assets.
The commission often employs a wide range of forensic techniques, including forensic accounting, electronic surveillance, and other specialised investigative methods, to uncover and analyse evidence against people suspected to be involved in serious crimes.
Asset Confiscation and Recovery
One of the key functions of the NSWCC is to target the assets acquired through criminal activities. This involves the identification and seizure of unexplained wealth, assets, proceeds of crime, or any other criminal property which are then subject to confiscation proceedings.
The New South Wales Crime Commission has the authority to petition the Supreme Court for an unexplained wealth order in accordance with section 28A of the Criminal Assets Recovery Act 1990 (NSW). This order mandates an individual to remit to the Treasurer an amount determined by the Court as the assessed value of their unexplained wealth.
The relevant section states as follows;
(1) The Commission may apply to the Supreme Court for an unexplained wealth order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of the person.
(2) The Supreme Court must make an unexplained wealth order against a person if the Court finds there is a reasonable suspicion–
(a) the person has, before the day the application is made–
(i) engaged in a serious crime related activity, or
(ii) acquired serious crime derived property from another person’s serious crime related activity, whether or not the person knew or suspected the property was derived from illegal activities, or
(b) the person’s current or previous wealth exceeds the value of the person’s lawfully acquired wealth by–
(i) for money–$250,000, or
(3) A finding under this section need not be based on a reasonable suspicion as to the commission of a particular offence and can be based on a reasonable suspicion that some offence or other constituting a serious crime related activity was committed.
(4) The Supreme Court may refuse to make an unexplained wealth order, or may reduce the amount that would otherwise be payable as assessed under section 28B, if it thinks it is in the public interest to do so.
(5) Engagement in a serious crime related activity or the acquisition of serious crime derived property referred to in subsection (2) extends to engagement in an activity or the acquisition of property before the commencement of this section.
(6) An amount payable under an unexplained wealth order must not be taken into account in determining a person’s entitlement to legal aid under the Legal Aid Commission Act 1979 .
The Supreme Court is obligated to issue an unexplained wealth order if it determines that there exists a credible suspicion that the individual in question, against whom the order is being sought, has, at any point prior to the application for the order:
Cases involving unexplained wealth typically necessitate a substantial body of forensic accounting evidence. These are the types of cases where one can expect to encounter conflicting perspectives from experts on how to interpret transactions.
It is crucial to emphasize the obvious point – the expert’s role is not to provide a definitive answer to the Court, but rather to aid the Court in arriving at one. The presiding Judge is tasked with the responsibility of being convinced regarding the individual’s overall wealth. It is the Judge who must determine if a defendant has successfully demonstrated that a particular portion, or all of their wealth was lawfully acquired.
Forensic accountants can only formulate their opinions based on foundational documents like bank statements and property transfer records. It is imperative to scrutinise the admissibility of these records, as well as any gaps that may exist in them.
Thorough examination of forensic accounting reports is necessary to ensure that they do not inflate total wealth through double counting. For instance, if an individual frequently engages in gambling at a casino, it would be erroneous to assume that every time they cash out chips, it constitutes a ‘win’. Similarly, if someone routinely buys and sells cars, it would be a mistake to classify each purchase as an expense without also treating every sale as income.
There are a number of unexplained wealth order investigation law firms in Sydney, our Parramatta Criminal lawyers can assist you. We will provide you up to 15 minutes free legal advice.