The Dying Presumption of Innocence – Part 3

In previous blogs we have discussed the presumption of innocence as it has been affected by the media and effectively wiped out with regards to bail. Today we shall look at the capacity for you to lose your home, your bank accounts and other assets.

Unexplained wealth and the automatic presumption of guilt

Under Section 14D of the Proceeds of Crime Act 2002 (Cth), unexplained wealth is defined as “property or wealth that might not have been lawfully acquired”. Those words understandably can set alarm bells ringing. After a second reading of that quoted section, you might conclude well all your assets may have been unlawfully acquired. Your assets may have been lawfully acquired. It is up to you to now prove your assets were acquired via lawfully obtained wealth.

Explain where your wealth came from, or lose it

Under Section 179A of the Proceeds of Crime Act 2002 (Cth), a preliminary unexplained wealth order can be made, requiring a person to attend Court for the purpose of enabling the Court to decide whether to make an unexplained wealth order against the person. Of fundamental importance here is the reversal of the burden of proof. If you, a person who has been subjected to an unexplained wealth order, cannot explain where your wealth has come from, there is a legal presumption that your assets have been obtained with the fruits of crime.

What is an unexplained wealth order?

Pursuant to Section 179E of the Proceeds of Crime Act 2002 (Cth), an unexplained wealth order is an order requiring a person to pay the Commonwealth Government an amount equal to so much of the person’s total wealth as the person cannot satisfy the court is not derived from, directly or indirectly, certain criminal offences. Remember that presumption of innocence until proven guilty? Now if you cannot prove your innocence, you may lose your home. Not only has the burden of proof been reversed, onto you, to prove your innocence, the standard of legal proof has been lowered.

When prosecuting a criminal offender, the police or the Department of Public Prosecutions must prove all the elements of every offence that you have been charged with beyond reasonable doubt. To make an unexplained wealth order, the Court need only have “reasonable grounds”.

Restraining orders and unexplained wealth

Under Section 20A of the Proceeds of Crime Act 2002 (Cth) the Courts can make a restraining order on such property. This is a temporary order, called an interim order, which can remain in effect until your legal matter is finally resolved. Remember, you haven’t been convicted of a crime, yet the Government can freeze your assets. Remember Legal Aid can refuse to fund your matter, and if you have no ability to pay for legal representation yourself, because your assets have been frozen, how likely are you to receive a fair trial?