Confiscating proceeds of crime; where do we draw the line?

In 2001, Gary White murdered a man who owed him money whilst on a methamphetamine and alcohol binge. Mr White shot Anthony Tapley five times in a truck yard he was leasing to “make an example of him” in what the trial judge called a “cold blooded execution”.  He was sentenced to life in prison, but the West Australian government wanted more.

Last Tuesday, the High Court rendered its judgment in White v Director of Public Prosecutions (WA) [2011] HCA 20 where Mr White’s life savings of $135, 000 were allowed to be confiscated by the West Australian Government though the money had no connection with the crime he was convicted of.

The order is known as a crime used property substitution declaration and it may be used where property is used in relation to a crime, in this case, the truck yard, but the state cannot confiscate the property because it is not owned by the offender.  The consequence of this is that any crime committed which is even marginally related to any form of real or personal property can be used as a trigger to confiscate the assets of an offender.

More recently in the history of the confiscation of the proceeds of crime, assets have been seized when they have been acquired as a result of or used in the commission of a crime, as in the David Hicks case. Historically however, the courts have had very broad powers to seize assets, as explained by Dawson J in Re Director of Public Prosecutions; Ex parte Lawler:

Property could be forfeited even if its owner was not involved in the crime. Forfeiture at common law was abolished in England in 1870 and thereafter in this country, but statutory powers of forfeiture have remained in certain areas and, indeed, have been introduced in some new areas.

The crime used property substitution declaration brings into question the policy justifications of these laws. Questions must be raised as to whether they are legitimate instruments to discourage profiting from crime or whether they are merely another revenue grabbing tool of the state.

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