Criminal Proceeds Act

Question 1

What was the intent of introducing the Asset Recovery Legislation?

Answer 1

Its intent was to facilitate action in stripping assets and wealth from individuals and groups involved in organised crime.

Question 2

What is the purpose of the act?

Answer 2

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.

Question 3

What does the act propose to do?

Answer 3

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

Question 4

Tainted Property - Definition

Answer 4

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.

Question 5

Qualifying instrument forfeiture offence

Act/Section/Elements

Answer 5

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)

Question 6

A person has unlawfully benefited from significant criminal activity if the person has:

Answer 6

Knowingly, directly or indirectly, derived a benefit from SCA whether or not they were involved in the criminal activity.

Question 7

Before preparing an application, an assessment process is required, which is used to determine:

Answer 7

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

Question 8

What must occur before Criminal Proceeds action can be taken

And what belief is required.

Answer 8

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.

Question 9

When interviewing a suspect about money laundering, consider the following points:

Answer 9

• 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.

Question 10

Instrument of crime - Definition

Answer 10

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.

Question 11

What is “significant criminal activity”?

Answer 11

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.

Question 12

Who can apply for a restraining order, asset forfeiture order or profit order?

Answer 12

Only members of the Asset Recovery Unit.

Question 13

When must the High Court make a profit forfeiture order?

Answer 13

Satisfied on the balance of probabilities that -
a) Respondent has unlawfully benefited from significant criminal activity; and
b) Respondent has interests in property

Question 14

An application for restraint of instrument of crime requires an affidavit from the O/C, what must be outlined in the affidavit?

Answer 14

• O/C details
• Offender details
• Search warrant
• Property sought
• Admissions made in interview

Question 15

What was held in Pulman v Commissioner of Police?

Answer 15

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.