7. Money Laundering Flashcards
- The offence of money laundering 2. the three stages of money laundering cycle 3. the purpose of the CP Act 2009 - circumstances under which criminal proceeds recovery action can be taken - how the legislation can be applied within the context of a criminal investigation.
What is outlined in Section 243(2) CA 61?
1 - in respect of property that is proceeds of an offence
2 - engages in any money laundering transactions
3 - knowing or believing that all or part of the property
is the proceeds of an offence OR
3 - being reckless as to whether or not the property is
the proceeds of an offence.
What is outlined in Section 243(3)?
1 - Who obtains or has in her on her possession any property (property that is the proceeds of an offence committed by another person)
(a) with intent to engage in money laundering transactions in respect of that property and
(b) knowing or believing that all or party of the property is the proceeds of an offence OR being reckless as to whether that property is proceeds of an offence.
What is meant by INTEREST?
In relation to any property means
- a legal or equitable estate or any interest in a property OR
- any right, privilege, power or interest in connection to any property.
What is meant by PROCEEDS?
In relation to an offence, means any property that derived or realized directly or indirectly by any person from the commission of the offence.
What does tainted property mean?
Section 5
Property that has, wholly or in part, been
(i) acquired as a result of significant criminal activity OR
(ii) directly or indirectly derived from significant criminal
activity and
Includes any property that has been acquired as a result of or directly or indirectly derived from more that 1 activity if at least 1 of these activities is a significant criminal activity.
Whats does section 243A CA61 say about the person who committed the offence in which the property was obtained?
It says that a person liable for money laundry can still be charged regardless if the person who committed has not been charged with that offence OR has not been convicted of that offence.
Does prosecution have to prove that the offender knew it was from a particular offence?
No section 243(5) stipulates that prosecution doesn’t have prove a particular offence.
And it is no a defence for the defendant to say, no it wasn’t that offence it was another offence.
What are the phases in the Money Laundering Cycle?
- PlacementCash enters financial systemEg: Offender makes money through selling cannabis
then deposits them into associates bank
accounts. - LayeringMoney is involved in a number transactionsEg: The associate transfers the money into an
account held by a “SHELL” company that the
offender is the director of. - IntegrationMoney is mixed with lawful funds or integrated back
into the economy wit the appearance of legitimacy.
Eg: the money is declared as revenue for the company, tax is paid and then the offender pays himself director fees or a salary out of the company account.
Criminal Proceeds Act 2009
What is the purpose of this act?
Section 3 of Criminal Proceeds Act 2009
Primary purpose is to establish a regime for the forfeiture of the property -
That has been derived directly or indirectly from significant criminal activity OR
That represents the value of a person’s unlawfully derived income.
What court issues an AFO?
The High Court, on a successful application which shows on the balance of probability that specific assets were obtained and are tainted by significant criminal activity.
In relation to recovery, what is the qualifying instrument forfeiture offence?
Section 5 Criminal Proceeds Act 2009
- Means offence by maximum term of 5 years or more AND
- Includes an attempt to commit, conspiring to commit or being an accessory to an offence if the maximum term for that attempt, conspiracy, or activity is 5 years or more.
What is the meaning of significant criminal activity?
Section 6 Criminal Proceeds Act 2009
Means - an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending -
a) that consists of, or includes 1 or more offences punishable by maximum term of imprisonment of 5 years or more OR
b) from which property, proceeds, or benefits of a alue of $30,000 or more have directly or indirectly been acquired or derived.
Before preparing for an order for forfeiture, what should happen first?
An asset assessment should be carried out.
What does this asset assessment determine?
- The value of the asset
- Equity in the asset
- Any third party interest in the asset
- the cost of the action in respect of the asset.
What happens when no conviction is entered in relation to forfeiture?
The restraint order with lapse and there will be no instrument of forfeiture.
