Bribery and Corruption: Commercial Fraud and the Proceeds of Crime

In March 2019, The Sydney Morning Herald reported on an alleged $40 million corporate fraud investigation instigated on claims by a whistleblower within National Australia Bank. The alleged, a company director, was arrested and charged with over 50 bribery and corruption offences. It follows a 12-month investigation by the state’s financial crimes squad.

Central to the charge is the allegation that multiple extravagant bribes were made between 2013 and 2017 to an executive at the bank for the executive to approve inflated invoices.

In February, the Supreme Court in New South Wales (and in Victoria) put freezing orders over a $6.2 million property portfolio of the accused, three bank accounts and a $1million NAB bank cheque. This followed a “proceeds of crime” application by the NSW Crime Commission in 2018.

In Australia there is a patchwork of legislation permitting the proceeds of crime to be forfeited:

• Proceeds of Crime Act 2002 (Cth) which applies in relation to Commonwealth offences and commenced by the Commonwealth Director of Public Prosecutions;
• Confiscation of Proceeds of Crime Act 1989 (NSW) which applies in relation to offences in NSW and commenced by the NSW Director of Public Prosecutions; and
• Criminal Assets Recovery Act 1990 (NSW) which is commenced by the NSW Crime Commissioner.

Orders may be based on a person’s unexplained wealth.

However, an accused can challenge orders, including an application to the Supreme Court to exclude property from forfeiture, where they are unfounded.

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