Forfeiture Orders in Tasmania
Forfeiture rules reflect the public policy that a person should not financially benefit from their crimes. For example, a court can make a forfeiture order so that a convicted murderer cannot benefit from publishing a “tell-all” about their crime. This has been a common law principle for a long time and is now incorporated in legislation. In Tasmania, the Crime (Confiscation of Profits) Act 1993 requires forfeiture of property related to a serious criminal offence. This article explains the purpose and nature of forfeiture orders in Tasmania.
Serious Criminal Offences
Forfeiture orders only apply when someone is convicted of a serious crime, such as murder, aggravated burglary or serious drug offences. For the purposes of forfeiture, a person has been “convicted” both when they are found guilty of the offence and when the offence was taken into account during sentencing for another crime. Also, the courts can make a forfeiture order if a person is charged with a serious offence and absconds before sentence. Before a forfeiture order can be made in that circumstance, a warrant must be issued for the arrest of the accused, and officials must have made reasonable attempts to locate them for six months.
The rules in relation to forfeiture are particularly focused on preventing criminals from receiving royalties from “tell-all” books. This reduces the incentive for criminals to glorify their crimes, and it also prevents the indignity of victims of crimes watching criminals benefiting from their wrongful actions. Even if the author was convicted of a less serious offence themselves, royalties could be forfeit if another person involved in the crime was convicted of a serious offence. For instance, the getaway driver in an armed bank robbery may be charged with a summary offence, but they still cannot profit from writing a “tell-all” about the robbery if their co-conspirators were charged with armed robbery.
Request for Forfeiture
Forfeiture does not happen automatically following a conviction for a serious offence. If a person is convicted of a serious offence in Tasmania, an authorised officer must apply to the courts for a forfeiture order over “tainted property” related to the offence, or a pecuniary penalty order for benefits derived during the commission of an offence. These orders can target a range of different commercial benefits resulting from criminal conduct, such as:
- benefits from prospective or actual publication of material relating to an offence;
- benefits accrued from notoriety gained from the commission of an offence; or
- literary proceeds.
When considering whether to make a forfeiture order, the court will consider the use or intended use of the property. The court also looks at whether the forfeiture will cause hardship to the offender and anyone else. This evaluation may take into account other innocent parties who will be harmed by the forfeiture.
The court can assume that property in the offender’s possession during or immediately after the crime is eligible for forfeiture unless evidence is presented otherwise. For instance, the court can assume that any vehicle registered to a bank robber is eligible for forfeiture unless there is evidence that the car was not used in the crime. If the court orders forfeiture of property, then it must specify an estimated value of the property and the extent of the offender’s ownership of the asset. In this way, if the offender is a co-owner of the vehicle, the court can declare that only half of the value of the vehicle is forfeit.
Effect Of Forfeiture Order
The state can only interfere (dispose or otherwise deal with) forfeited property after the statutory appeal period or six months (whichever is greater). When the court makes a forfeiture order for property, this asset vests in the state. If the property is land as defined by the Land Titles Act 1980, the state can take possession of the property and be registered as the new owner of the land. The state will take possession subject to any encumbrance already attached to the land, such as a mortgage, lease or other interest recorded in the register. In the case of real property, this will often mean that the property will be sold to discharge any mortgage and then the residue value taken by the state. When it is cash that is forfeited, the state can pay the funds into the Crime (Confiscation of Profits) Account.
Discharge Of Forfeiture Order
A forfeiture order is discharged (that is, overturned) if the conviction is subsequently quashed or the order is discharged upon appeal. Someone can also pay out the amount of the forfeiture to discharge the order. When a forfeiture order is discharged, the Attorney-General returns the property to the original owner or pays them the amount realised upon disposal of the property.
There has been some debate over whether forfeiture rules should be applied inflexibly to all unlawful deaths. In some cases, such as where a killing was the result of self-defence after severe domestic violence, there is an argument that the perpetrator should not be subject to a forfeiture order. The legislation does provide the court with some discretion to not impose a forfeiture when this would better serve the interests of justice.
Please contact Go To Court for any legal advice on forfeiture orders in Tasmania.