Criminal Proceeds (Recovery) Act 2009

Question 1

Explain the Criminal Proceeds (Recovery) Act 2009?

Answer 1

It is a civil-based process where the Crown must prove on the balance of probabilities that wealth & benefits have been accumulated through significant criminal activity.

Question 2

What is the purpose of the Criminal Proceeds (Recovery) Act 2009, Sec.3?

Answer 2

(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.

Question 3

Define ‘Tainted Property’ Sec.5 CP(R) Act 2009.

Answer 3

(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; &
(b) includes any property acquired, directly or indirectly from, more than 1 activity if at least 1 activity is a significant criminal activity.

Question 4

Define ‘Significant Criminal Activity’ Sec.6 CP(R) Act 2009.

Answer 4

(1) an activity engaged in by a person that -
(a) consists of 1 or more offences punishable by 5 years imprisonment or more; or
(b) from which property, proceeds, or benefits of $30,000 or more have, directly or indirectly, been acquired or derived.

Question 5

Profit Forfeiture Order (PFO)

Sec.55 CP(R) Act 2009

Answer 5

(1) High Court must make a PFO 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; or
(b) the respondent has interests in property.

Question 6

Pulman v Commissioner of Police

Answer 6

Pulman, a pharmacist, was convicted as a party to meth manufacture & the subject of a PFO. He had sold significant quantities of precursor substances over several years, knowing they were to be used to manufacture illicit drugs. He claimed the precursors were sold for cash, which he then secured in a cash box used by his employer to pay wages. He argued his employer, not him, had personally benefited. Court held - Pulman had unlawfully benefited as soon as he received the cash from the purchases. How he dealt with the cash was irrelevant.

Question 7

Define ‘Instrument of Crime’ Sec.5 CP(R) Act 2009.

Answer 7

Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence. (includes vehicles & property)

Question 8

Define someone who has ‘Unlawfully Benefited from Significant Criminal Activity.
Sec.7 CP(R) Act 2009.

Answer 8

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 9

Qualifying Instrument Forfeiture Offence.

Sec.5 CP(R) Act 2009.

Answer 9

(a) An offence punishable by 5 years or more imprisonment; &
(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.

Question 10

What must occur before Criminal Proceeds action can be taken?

Answer 10

1. A restraining order is the first step in the asset seizure process.
2. In the case of tainted property or benefits from crime, an application made to the High Court must show:
   * reasonable grounds for belief that the property is tainted;
   * that is has been acquired, or directly or indirectly, derived from significant criminal activity.

Question 11

R v Wong

Answer 11

Converting money into casino chips & later converting the chips back into cash to represent winnings was judged to be concealment of the initial money. In this case the intention to conceal the money had to be proved rather than the effectiveness of the technique .

Question 12

In practice what should the O/C do if there is property that is an instrument of crime?

Answer 12

Notify the Crown Solicitor.

Question 13

What is essential to know before making an application for a restraining order relating to an instrument of crime?

Answer 13

• the value of the asset.
• equity in the asset.
• any third party interest in the asset.
• the cost of action in respect of the asset.

Question 14

When considering an application for a restraining order, who should you consult with?

Answer 14

• the Financial Crime Group.

* seek guidance for completing the restraint application from the Asset Recovery Unit (ARU).

Question 15

How long is a restraining order valid?

Answer 15

Valid for 1 year.

Question 16

What functions has the Commissioner of Police delegated to Asset Recover Unit?

Answer 16

Only members of ARU may apply for restraining orders (apart from those relating to Instruments of Crime), assets forfeiture orders & profit orders.

Question 17

For an order to be made under Sec.25(1) CP(R) Act 2009, what must the Court be satisfied with?

Answer 17

That are reasonable grounds to believe that the respondent has unlawfully benefited from SIGNIFICANT CRIMINAL ACTIVITY, & that the RESPONDENT has an INTEREST in the PROPERTY to be restrained.