criminal defence at the same time as criminal proceeds

You are charged with committing significant criminal activity, could be meth or cannabis related with some unlawful firearms activity thrown in for good measure. We are just using this as an example, but it could be meth related, fraud related, illegal gambling, money laundering and participating in an organised criminal group, or health and safety breaches etc. When you are charged, you may also receive an application for restraining orders over property, or you may receive an order for ex parte (without notice) restraint of property. 

You are thrust into a situation where you are facing two proceedings. One is a criminal matter that proceeds under the Criminal Procedure Act 2011 and the Crimes Act 1961 and requires the skill of a criminal defence barrister. The other is a civil matter that proceeds under the Criminal Proceeds (Recovery) Act 2009 and the High Court Rules 2016, and requires the skill of a civil barrister.

There are also two different burdens of proof you are dealing with. Criminal is of course 'beyond reasonable doubt' - we expect a high standard of proof when a person's liberty is at risk. The civil burden of proof is not as widely known, but it is the 'balance of probabilities'. This standard of proof requires the High Court to consider what is more likely than not, so a likelihood in civil, versus beyond reasonable doubt in criminal. 

In the past, criminal barristers who specialised in criminal defence largely defended criminal proceeds matters. In the past few years, more civil specialist barristers have become involved in criminal proceeds defences. That is good and long overdue, because criminal proceeds has never been about criminal defence, it has always been about property.

What used to occur, in our opinion (and direct experience), was criminal barristers would largely advise clients (and young lawyers) as follows: 1) you consent to restraint, you cannot do anything until forfeiture, and 2) we put the proceeds matter on the backburner while we defend your criminal charges, and 3) the determination of the proceeds matter is reliant on how the criminal defence goes.

Respectfully, and in our professional opinion, the above 3 step approach above was and is, woeful advice. That advice proceeds on the premise that release of property is determined by the verdict of the jury in the criminal court or your plea in the criminal court. That is not correct and that advice has been given on a false premise. 

Now, if you are a private client and you cannot afford to have multiple proceedings on foot at once (and possibly multiple barristers), that is a different story. But do not think for one second that you cannot actively defend and progress your criminal proceeds matter at the same time as you are actively defending your criminal charges. 

Now, if you do not have meritorious arguments available to you in the proceeds matter at the restraining or forfeiture stage (after legal research is completed), that is a different story again also. While we are active and opportunistic litigators, if there is no real benefit to you taking steps (after a cost/benefit analysis is completed for you), then we would not advise active defence at a restraining stage.

We want the best for our clients, which is why we are active, constantly searching for ways we can 'snipe' property, or carve out interests in property for respondents and commonly interested parties. For this reason, our style of proceeds advocacy tends to suit higher value and complex matters.

Bottom line for us here is: if we are assisting you with your criminal proceeds matter and you have active related criminal charges on foot, then we must be kept abreast (informed) of the progress of your criminal matter and the theory of your defence. We need to have a good working relationship with your criminal barrister. Don't worry, we won't rack up fees, we just need to know what is happening at key points. Communication is paramount and in the client's best interests.