Gray, Anthony Davidson (2012) Forfeiture provisions and the criminal/civil divide. New Criminal Law Review, 15 (1). pp. 32-67. ISSN 1933-4192
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Identification Number or DOI: doi: 10.1525/nclr.2012.15.1.32
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 rquirement that the accuser make good their allegation, at the criminal standard.
|Item Type:||Article (Commonwealth Reporting Category C)|
|Additional Information:||© 2012 by the Regents of the University of California.|
|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
18 Law and Legal Studies > 1801 Law > 180119 Law and Society
|Socio-Economic Objective (SEO2008):||C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940403 Criminal Justice|
|Deposited On:||04 Apr 2012 10:30|
|Last Modified:||09 Apr 2013 13:11|
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