Commonwealth Director of Public Prosecutions v Poniatowska

The Commonwealth Director of Public Prosecutions (CDPP) appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia concerning the interpretation of s 131(1) of the *Proceeds of Crime Act 2002* (Cth) (the Act). The dispute arose from an application by Ms Poniatowska to have certain assets, which had been restrained under a restraining order made pursuant to the Act, declared free from the operation of that order. The CDPP opposed this application.

The central legal issue before the High Court was whether s 131(1) of the Act, which permits a court to discharge or vary a restraining order if it is satisfied that the property is not tainted property, requires the applicant to prove that the property is not tainted property on the balance of probabilities, or whether the onus rests on the Commonwealth to prove that the property is tainted property.

Hayne J, delivering the sole judgment, held that the language of s 131(1) indicated that the applicant bears the onus of satisfying the court that the property is not tainted property. His Honour reasoned that the provision requires the applicant to demonstrate a positive case for discharging or varying the order, rather than requiring the Commonwealth to prove the negative. The court considered the purpose of the Act, which is to deprive persons of the proceeds of their criminal activity, and concluded that placing the onus on the applicant aligns with this objective.

The appeal was allowed, and the matter was remitted to the Federal Court for determination according to law.