Director of Public Prosecutions v Diez

The Director of Public Prosecutions sought an order for the forfeiture of proceeds of crime under the Proceeds of Crime Act, which was opposed by Diez. The court had to determine if the monies in question, which had been used to purchase a family home and were derived from overseas, were proceeds of crime. The court was also required to consider whether the monies were derived from unlawful activity, whether they were lawfully acquired, Diez’s liability to income tax on the monies, whether there was a report under the Financial Transactions Reports Act, and if there was any hardship or public interest in making an order.

The court found that the monies were not derived from unlawful activity and were lawfully acquired. It was determined that Diez was not liable to income tax on the monies as they were exempt under the relevant legislation. There was no report under the Financial Transactions Reports Act. While the court recognised the hardship to Diez and his family, it also considered the public interest in ensuring that proceeds of crime are not retained by those who obtain them through unlawful means. The court ultimately decided that it was in the public interest that an order not be made to forfeit the monies.

The court granted the applications under sections 48(3)(g) and 48(4) of the Proceeds of Crime Act, concluding that the monies were not proceeds of crime and should not be subject to forfeiture. The court ordered that the monies be returned to Diez, subject to any future directions the court may give.