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Case Significance

Settles that the predicate offence in a non-conviction-based forfeiture under section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 need only be proved on the balance of probabilities, correcting the contrary view that had required proof beyond reasonable doubt.

This Federal Court decision concerns the standard of proof required to establish a predicate offence in proceedings for the forfeiture of property where there is no prosecution, under section 56 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. The Public Prosecutor had applied to forfeit property seized in connection with an investment scheme, on the basis that the properties were the subject matter of, or evidence relating to, the commission of an offence, the predicate offence relied on being cheating under section 420 of the Penal Code. The High Court, save for certain monies it ordered returned, granted forfeiture of the listed properties and ordered them vested in the Federal Government under sections 56(2) and 58, and the Court of Appeal affirmed that decision; the numerous appellants, comprising corporate entities and individuals connected to the scheme, appealed to the Federal Court. The principal question of law was whether the predicate offence must be proved beyond reasonable doubt or only on the balance of probabilities in a section 56 forfeiture proceeding. The Federal Court held that the applicable standard is the balance of probabilities, because a forfeiture proceeding under section 56 — which applies precisely where there is no prosecution or conviction — is civil in nature and focuses on the legal status of the seized property, not on the guilt of any person. It held that the Court of Appeal in an earlier case, Simplex, had misread section 70(2) in requiring proof beyond reasonable doubt, and that section 70(2) does not apply to impose that burden in a forfeiture proceeding. Declining to disturb the concurrent findings of fact of the courts below, the Court found no merit in the appeal and affirmed the decision of the Court of Appeal. The decision settles that the predicate offence in a non-conviction-based forfeiture under section 56 need only be proved on the balance of probabilities.