Criminal Proceeds Flashcards
Criminal Proceeds (Recovery) Act 2009
Legislation
Purpose
S3 Criminal Proceeds (Recovery) Act 2009
(1) The primary purpose of this Act is to establish a regime for the forfeiture of property—
(a) that has been derived directly or indirectly from significant criminal activity; or
(b) that represents the value of a person’s unlawfully derived income.
Criminal Proceeds (Recovery) Act 2009
Legislation
Proposes to
S3 Criminal Proceeds (Recovery) Act 2009
(2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a) ELIMINATE the chance for persons to profit from undertaking or being associated with significant criminal activity; and
(b) DETER significant criminal activity; and
(c) REDUCE the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
(d) DEAL with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.
Criminal Proceeds (Recovery) Act 2009
Legislation: Tainted Property
S5 Criminal Proceeds (Recovery) Act 2009
(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 than 1 activity if at least 1 of those activities is a significant criminal activity.
Criminal Proceeds (Recovery) Act 2009
Legislation: Qualifying instrument forfeiture offence
S5 Criminal Proceeds (Recovery) Act 2009
(a) Means an offence punishable by a maximum term of imprisonment of 5 years or more; and
(b) Includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more.
Criminal Proceeds (Recovery) Act 2009
Legislation: Significant criminal activity
Sec 6 Criminal Proceeds (Recovery) Act 2009
(1) In this Act, unless the context otherwise requires, significant criminal activity 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 a maximum term of imprisonment of 5 years or more; OR
(b) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
Criminal Proceeds (Recovery) Act 2009
Legislation: Unlawfully benefited from significant criminal activity
Sec 7 Criminal Proceeds (Recovery) Act 2009
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).
Criminal Proceeds (Recovery) Act 2009
Profit Forfeiture Order
Sec 55 Criminal Proceeds (Recovery) Act 2009
(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.
Criminal Proceeds (Recovery) Act 2009
Legislation: Instrument of crime definition
Sec 5 Criminal Proceeds (Recovery) Act 2009
Instrument of crime means:
(a) Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.
Note: Includes any property / proceeds into which the instrument of crime is converted, after the commission of the qualifying instrument forfeiture offence, except as a result of Court orders / sentencing.
Criminal Proceeds (Recovery) Act 2009
Assessment process before application for restraint of instrument of crime.
Used to determine:
- Value of the asset
- Equity in the asset
- Third party interest in the asset
- Cost of action in respect of the asset.
Criminal Proceeds (Recovery) Act 2009
Affidavit required for Restraint application
Topics
- Officer in Charge: details
- Offender(s): details, charges, criminal convictions.
- Search warrant: Describe the nature of the offending discovered at or involving the property (asset) concerned.
Note: Where the value of the asset is high you need to demonstrate that the offending was at more of a commercial level.
- Admissions made during interview(s).
- Describe property sought to be restrained and its value.
- Show the offender owns, or has custody or control of, the property.
Criminal Proceeds (Recovery) Act 2009
Action required before any Criminal Proceeds action is taken.
A restraining order is the first step in the asset seizure process, for any of the three forfeiture order types (Asset, Profit Instrument).
In the case of tainted property and benefits from crime an application made to the High Court must show reasonable grounds for belief that the property is tainted ie. acquired, or directly or indirectly derived, from “significant criminal activity”.
Criminal Proceeds (Recovery) Act 2009
Allows forfeiture methods:
Asset Forfeiture Order (Civil Proceeding)
Profit Forfeiture Order (Civil Proceeding)
Instrument Forfeiture Order (Criminal Proceeding)
Criminal Proceeds (Recovery) Act 2009
Asset Forfeiture Order
Sec 50 Criminal Proceeds (Recovery) Act 2009.
Asset Forfeiture Order is made on application to the High Court in a Civil Proceeding.
Must be issued if the High Court is satisfied on the balance of probabilities that the specific property is tainted property.
Criminal Proceeds (Recovery) Act 2009
Restraint to Instrument of Crime
On application to Court under Sec 26 of Criminal Proceeds (Recovery) Act 2009.
Normally done as on notice to the person with an interest in the property. Unless there is a risk of CADD due to giving notice, then can be made without notice.
