Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is a ‘white collar’ crime?
- The term ‘white collar’ is commonly used to refer to offences committed by people who work in a business or own a business.
- It was originally used to describe the type of individual who would usually have the opportunity to commit this type of offence due to his or her position of employment.
- You will not see this term written in a charge.
- These types of offences are usually motivated by financial gain and involve some deception. Some examples of this type of offence include:
- tax evasions;
- insider trading;
- forgery;
- embezzlement; or
- money laundering;
- A corporate crime is commonly referred to as a white collar crime. Both a company and an individual representing a company can be held liable for these crimes.
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Who is ASIC?
- ASIC is the abbreviation for the Australian Securities and Investments Commission.
- This is a Commonwealth-funded body that was established to regulate the activity of companies and businesses in Australia.
- Its main function is to make sure that companies are complying with the law.
- ASIC has broad investigative and enforcement powers and responsibilities that are set out in the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth).
- If ASIC becomes involved with your business it is advisable to get legal advice to make sure you understand all your rights and responsibilities. Our free Find a Lawyer directory can help put you in touch with the assistance you need.
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What is an ASIC investigation?
- ASIC’s investigation powers are set out in the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth).
- There are a range of methods ASIC may use when conducting an investigation into a business.
- In many cases ASIC will issue a notice to a business advising you that an investigation is due to commence.
- You need to make sure the correct person takes responsibility for this issue.
- Check the timeframe given for compliance. It is very important that you stick to this deadline.
- If there is any issue with doing this then you should speak to someone from ASIC and explain your reasons to see if you may be able to get an extension.
- Usually you will be asked to provide ASIC with relevant books and records.
- The word ‘books’ has quite a broad meaning so you may need to check to make sure you are clear about exactly what this means.
- There are very few legal reasons you can give for not complying with an ASIC notice and producing the documents they have requested.
- Legal professional privilege is the main reason you could give. This has a very specific meaning in the law. You should speak to a lawyer about this if you think it may apply in your situation.
- It is a good idea to keep copies of all the documents that you give to ASIC.
- Generally you must comply with an ASIC investigation. In some cases if you do not comply then a warrant will be used to allow ASIC officials to attend your business and seize the relevant documents. There are offences for failing to comply.
- ASIC will notify you of the outcome of the investigation. As this is a large government department this process can take some time to finalise.
- If you have doubts or want to clarify your rights and obligations then you should speak to a lawyer. You can use our free and anonymous Ask a Lawyer service to get information specific to your situation
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What is an ASIC interview?
- ASIC has powers where they can ask any person to come for an interview if they suspect that they can help them in their investigation.
- This is a very broad power that means that ASIC can request a company director, an employee, accountants, lawyers and other staff to come to a compulsory interview to ask questions. In some cases they may request a family member to attend a meeting if they believe they have information that will assist such as someone’s wife, husband or partner.
- An ASIC interview is compulsory. You are required to answer their questions and there are offences for failing to comply or for providing misleading information.
- There are very few legal reasons you can give for not answering all their questions at the interview.
- Legal professional privilege is the main reason you could give. This has a very specific meaning in the law.
- You should speak to a lawyer about this if you think it may apply in your situation.
- You can have a lawyer attend the interview with you.
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When do I need to go to court if I have been charged with a corporate crime?
- If you have been charged then you should have been given paperwork with information about what corporate crimes you have been charged with and when you need to go to court.
- If you have not received any paperwork then you can call the police station, DPP or ASIC and ask for your paperwork. At a minimum they should be able to tell you what day you need to go to court.
- You could also call your local courthouse and ask them for some information but this may not always be the easiest way to find out.
- If you are still struggling to find out then a lawyer will help you with this inquiry. You can use our free Find a Lawyer directory to contact a lawyer near you.
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When do I find out what evidence the prosecution has against me?
- When you are charged you should be given a copy of the statement of facts that will briefly outline the circumstances of the offences alleged against you.
- This is essentially a summary of the case against you at the time that they charged you. In some cases additional evidence will have been gathered since then.
- In most states and territories once you have entered a plea of not guilty then you are entitled to receive a copy of the ‘brief of evidence’.
- There are special rules that are different in each state and territory about when you can ask for a brief and when you will receive it.
- Generally a complete brief of evidence would not be served on you in less than 6 weeks.
- The brief must include all the evidence the prosecution is relying on to support the charges against you. This may include evidence such as:
- witness statements;
- financial records;
- business records; or
- electronic recordings.
- In some states and territories you will receive a copy of your video record of interview with the statement of facts.
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What is the main difference between a summary and an indictable offence?
- There are a range of white collar and corporate crimes. Some are summary offences and some are indictable.
- A summary offence is one that must be dealt with in a lower court such as a local or magistrate’s court.
- An indictable offence is one that must be dealt with in a higher court such as a district or county court.
- The main difference between these types of offences is what the maximum penalty is and which court can deal with it.
- Both types of offence may have imprisonment and fines as a penalty but the maximum penalties will be greater in a higher court.
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When will we tell the court that I have a defence to the charge?
- It is not simply a matter of telling the court that you have a defence to the charge.
- A number of factors influence when you should raise your defence with the court. For some cases special rules apply about when you can raise a defence.
- If you think you have a valid defence to a white collar or corporate crime then your lawyer will give you advice and explain the best way to deal with this during your case.
- It may be that the issue should firstly be raised as part of a charge negotiation with the prosecution.
- It may be that the issue is best raised during the hearing or trial by calling your own witnesses and providing the court with evidence.
- It may be that the issue is best dealt with simply by challenging the prosecution case.
- This is an important decision. Your lawyer can give you advice based on your instructions and then you can decide on the best strategy in your case.
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What will happen at a contested hearing or trial?
- A hearing or trial is when the court puts aside time to listen to the evidence and decide whether you are guilty and should be convicted of the offence charged.
- Your case may be listed for a day or more depending how many people need to give evidence.
- In criminal cases most of the evidence is given orally. Before the hearing the police must provide you with written statements from each witness so that you know what each witness is going to say.
- You should be given a chance to read all the statements from all the witnesses in your case so you can give your lawyer instructions.
- At the hearing both parties are given a chance to cross-examine the witnesses. This means each party can ask the witness questions about what they have said in their statements
- The court listens to and records all the evidence in the case and the lawyer’s arguments. Once this is done the magistrate, judge or jury decides if you are guilty of the offence charged. If you are found guilty you will be convicted and sentenced by the court.
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What will happen at my sentence?
- If you are convicted of an offence then your case will be listed for sentence. This is when the court puts aside time to listen to all the circumstances of the offence and your personal circumstances to decide on the appropriate penalty (punishment) for your crime.
- In some cases a pre-sentence report will be ordered and you can provide the court with appropriate references as well.
- On the day of sentence the court will listen to or read the facts of the offence and your criminal record. In some cases evidence will be called at a sentence hearing. This is more likely to happen in a higher court.
- Then the court will hear from both parties. Each party will make submissions (persuasive arguments) about the case and suggest an appropriate penalty.
- After considering all relevant material the magistrate or judge will make a sentence order and give their reasons for making this decision.
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Can I appeal my conviction or my sentence?
- In most cases you have a right to appeal your conviction or your sentence.
- There are rules about when you can do this.
- Usually you will need to have grounds or merit to lodge an appeal.
- There are also strict deadlines for filing your appeal.
- The Commonwealth and each state and territory has rules about what criteria need to be met to lodge an appeal. You will need to check what laws apply in your situation.
- Generally you can appeal:
- a conviction if there has been an error of law or fact; and
- your sentence if the court misjudged the severity of your crime because it gave some evidence too much weight in your hearing or if it took account of some evidence that was not relevant. You may also be able to appeal your sentence if it was too harsh or severe.
- The prosecution can also appeal a sentence if they think it was not appropriate or too lenient given all the circumstances of the offence.
- A lawyer can advise you about the strength of your appeal and the steps that need to be taken to comply with the appeal rules. You can use our free Find a Lawyer directory to contact a lawyer near you.
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