Criminal Proceeds Act Flashcards
What was the intent of introducing the Asset Recovery Legislation?
Its intent was to facilitate action in stripping assets and wealth from individuals and groups involved in organised crime.
What is the purpose of the act?
To establish a regime for the forfeiture of property that has been derived directly or indirectly from SCA, or that represents the value of a person’s unlawfully derived income.
What does the act propose to do?
a) ELIMINATE the chance for persons to profit off SCA
b) DETER SCA
c) REDUCE the opportunity for people involved in SCA to expand their criminal enterprise
d) DEAL with matters relating to foreign restraining and forfeiture orders
Tainted Property - Definition
Any property that has, wholly or in part, been -
a) Acquired as a result of SCA; or
b) Directly or indirectly derived from SCA; and
Includes any property that has been acquired as a result of, or directly or indirectly derived from, more than one activity if at least one of those activities are SCA.
Qualifying instrument forfeiture offence
Act/Section/Elements
Criminal Proceeds (Recovery) Act 2009, S5
- 5 year plus imprisonment offence
- Includes an attempt, conspiracy, or being an accessory (so long as the term is 5 or more years)
A person has unlawfully benefited from significant criminal activity if the person has:
Knowingly, directly or indirectly, derived a benefit from SCA whether or not they were involved in the criminal activity.
Before preparing an application, an assessment process is required, which is used to determine:
EATT
- Equity in the asset
- Any third party interest in the asset
- The value of the asset
- The cost of action in respect of the asset
What must occur before Criminal Proceeds action can be taken
And what belief is required.
A restraining order is the first step, then an application to the High Court must show RGTB that the property is tainted – that it has been acquired, or directly or indirectly derived, from SCA.
When interviewing a suspect about money laundering, consider the following points:
- Suspect’s legitimate income
- Suspect’s illegitimate income
- Expenditure
- Assets
- Liabilities
- Acquisition of financial records, from banks and other financial institutions
- Clarification of documentary evidence located, as per above.
Instrument of crime - Definition
Property used to commit or facilitate the commission of a qualifying instrument forfeiture offence. Includes funds allocated for committing the offence and proceeds after the commission of the offence.
What is “significant criminal activity”?
Activity engaged in that is punishable by 5+ years imprisonment or from which property, proceeds or benefits worth $30K+ have directly or indirectly been acquired.
Who can apply for a restraining order, asset forfeiture order or profit order?
Only members of the Asset Recovery Unit.
When must the High Court make a profit forfeiture order?
Satisfied on the balance of probabilities that -
a) Respondent has unlawfully benefited from significant criminal activity; and
b) Respondent has interests in property
An application for restraint of instrument of crime requires an affidavit from the O/C, what must be outlined in the affidavit?
- O/C details
- Offender details
- Search warrant
- Property sought
- Admissions made in interview
What was held in Pulman v Commissioner of Police?
The purpose of the forfeiture regime was not only to prevent the ability of a person to profit from SCA, but also the chance they may and to deter them from it.
