Association 12

Question 1

Doctrine of recent possession - Receiving – SA

Answer 1

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen in, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver, or has committed some other offence associated with the theft of the property, eg burglary or robbery.

Question 2

Legally impossible – Receiving – SA

Answer 2

R v Donnelly
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained

Question 3

Money Laundering – Money Laundering and CPA – SA

Answer 3

Section 243 CA1961
(1) For the purposes of this section and sections 244 and 245 –
Conceal: in relation to property, means to conceal or disguise the property, and includes without limitations:
a) To convert the property from one form to another
b) To conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property

Deal with: in relation to property, means to deal with the property in any manner and by any means, and includes, without limitations:

a) To dispose of the property, whether by sale, purchase, gift or otherwise
b) To transfer possession of the property
c) To bring the property into NZ
d) To remove the property from NZ

Question 4

Definition of interest – Money Laundering and CPA – MC

Answer 4

A legal or equitable estate or interest in the property; or

A right, power, or privilege in connection with the property

Question 5

What is required to be proved – Money laundering and CPA – When considering the principal charge of money laundering, under s243(2), proof of the following four elements is required:

Answer 5

1. Dealing with property or assisting with such dealing
2. The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person
3. Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence
4. An intention to conceal the property

Question 6

Tainted Property – Criminal proceeds definitions – SA

Answer 6

Section 5, Criminal Proceeds (recovery) Act 2009
Tainted property
(a) Means any 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
(b) 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 those activities is a significant criminal activity

Question 7

Unlawfully benefited from criminal activity - Criminal proceeds definitions – SA

Answer 7

Section 7, Criminal Proceeds (recovery) Act 2009
In this act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant
criminal activity (whether or not that person undertook or was involved in the significant criminal activity)

Question 8

Profit forfeiture order - Criminal proceeds definitions – SA
Section 55, CPA 2009

Answer 8

1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that –
a) The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
b) The respondent has interests in property

Question 9

Unlawfully benefited from significant criminal activity - Criminal proceeds definitions – SA

Answer 9

Pulman v Commissioner of Police
The Court held that the purpose of the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the ‘’çhance’ that they may be able to do so and also to deter significant criminal activity

Question 10

Restraining Orders – CPA – MC

Answer 10

Only members of Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders