Forfeiture provisions and the criminal/civil divide

Gray, Anthony Davidson (2012) Forfeiture provisions and the criminal/civil divide. New Criminal Law Review, 15 (1). pp. 32-67. ISSN 1933-4192

Abstract

Provisions have recently been introduced into Commonwealth criminal legislation to provide for the forfeiture of so-called 'unexplained wealth'. If some evidence exists that a person has wealth other than that explicable by lawful activity, the court can make a preliminary order against the person. At the final hearing, there is a presumption that the wealth was acquired other than through lawful means, and the burden is on the person to prove otherwise. Such a reversal of the onus of proof is unusual. I argue that in substance such proceedings are criminal in nature, given the seriousness of the accusation. As a result, criminal due process provisions should apply, including a requirement that the accuser make good their allegation, at the criminal standard.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: © 2012 by the Regents of the University of California. Permanent restricted access to published version due to publisher copyright policy.
Depositing User: Dr Anthony Gray
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 04 Apr 2012 00:30
Last Modified: 17 Dec 2014 01:17
Uncontrolled Keywords: onus of proof; reverse onus; presumption of innocence; due process; unexplained wealth
Fields of Research (FOR2008): 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
16 Studies in Human Society > 1602 Criminology > 160203 Courts and Sentencing
16 Studies in Human Society > 1605 Policy and Administration > 160504 Crime Policy
Socio-Economic Objective (SEO2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940407 Legislation, Civil and Criminal Codes
Identification Number or DOI: 10.1525/nclr.2012.15.1.32
URI: http://eprints.usq.edu.au/id/eprint/20799

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