ASIC Prosecutions

Who and why do ASIC prosecute and what are their effective reasons for doing so? In answering this question, we begin with the, “why”.

ASIC prosecute to improve the quality of information to the general public, shareholders and members or officers of Australian companies, to assist external administrators to address ongoing misconduct by company directors, discourage the misuses of ASIC’s public database and prevent disqualified directors from managing companies.

Some examples of “who”, ASIC seeks to prosecute, are or deems persons of interest, fall within a certain category, namely:

People who are alleged to have continued to act as an officer of a company after a liquidator is appointed;

Company officers who allegedly failed to assist insolvency practitioners to administer a failed company by not providing a Report on company Activities and Property (ROCAP) – formerly known as the Report as to Affairs (RATA) – company books and records and assistance when requested;

Company officers themselves and their companies for allegedly failing to update ASIC registers with the addresses of their companies and company officers; and

People who are alleged to have used company titles when no such company was registered by ASIC.

From January to June 2022, ASIC criminally prosecuted 27 individuals with 139 charges, with 7 custodial sentences and 11 non-custodial sentences. There were 81 defendants prosecuted for strict liability offences with 171 charged laid in summary prosecutions for the same.

In that same period, ASIC further banned 31 individuals by removal or restriction from providing financial services or credit with 27 individuals disqualified or removed from directing companies and initiated 60 new investigations with 148 investigations still ongoing.

Noting the above this does not limit the power the ASIC has to criminally prosecute, and this is where it gets legally complex. In most ordinary circumstances all liaison with ASIC is done so on the premise that they are civil in nature and subject to civil litigation if disputes cannot be resolved. However, the fine line that the above noted statistics tell is that civil correspondences can lead to criminal liability and effectively you simply are not able to tell which ones do and which don’t.

That’s why consulting our expert criminal defence lawyers become vital, as we are able to professionally liaise with ASIC and assist in mitigating the risks behind evidentiary matters that may raise the bar of offending to criminal liability and negotiate the matter be civilly dispensed during the course of an investigation.

For further risk management our services seek to provide directors and various corporate stakeholders with advice regarding conduct that can be deemed to rise a high as criminal liability and improve the corporation’s responsibility to eliminate and reduce practices that may be cause for concern and align with ASIC and legislative requirements.

Private Prosecutions and Law Enforcement Reporting

It is assumed that criminal defence lawyers only defend accused persons once prosecutorial proceedings are initiated against them. Well, it’s in the name isn’t it, incorrect, our specialist and expert criminal defence advocate are able to advise on private prosecutions and assist with referrals for law enforcement prosecutions.

The added skill a criminal defence lawyer has when preparing for or advising as to merit in prosecutorial matters is that they are experienced as to defences available. This added advantage allows for qualitative advice that pre-empts the defendant’s response and in preparing the prosecutorial matter in a way that gathers legal evidence to increase prospects of success in litigation.

This advantage can be of significant assistance to the civil litigant in understanding all right available to them in pursuing a defendant.

Our defence lawyers have established years of liaison with law enforcement bodies and professional relationships building reputational goodwill that we are, officers of the court first and foremost and in assisting in the fact finding of justice and advising on evidence.

For example, an accused person charged with a domestic violence offence may themself be a victim of a criminal action brought about by the very alleged victim upon which the accused is charged or a related third party. In this circumstance, blindness to criminal offending based on the fact that the person themself is accused is not justice and cross criminal proceedings ought to be initiated by law enforcement or by way of private prosecution.

Intelligence and Confiscation Proceedings

Law Enforcement Agencies and Intelligence investigative agencies like, the ACIC, AFP Criminal Assets Litigation Unit or the Crime Commission target persons dealing with proceeds of crime to purchase assets, making the said asset a criminal instrument and liable to forfeiture.

A person may be liable to forfeiture of their assets (deemed as proceeds of crime) without being charged with a criminal offence, however in most circumstances they confiscation proceedings and criminal litigation proceed hand in hand.

There are many legal complexities requiring forensic legal analysis and strategy when confiscation proceedings are initiated parallel to or during the course of criminal litigation. One for mention is that the evidentiary thresholds of proof in both matters are different (in criminal litigation the evidentiary threshold is “beyond reasonable doubt” in comparison to confiscation proceedings, where the evidentiary threshold is “on balance of probabilities”) and the admissibility of evidence or oral testimony can be cross admissible in both jurisdictions.

Here our advocates are able to prepare unique defence strategies and brief experts to assist in the most appropriate course for a defendant in managing the litigations conduct and protecting them to secure the best results. Our lawyer are specifically trained in assessing merit and asset protective responses to restraining orders made.