CRIMINAL PROCEEDS (RECOVERY) ACT 2009

Question 1

Purpose 1

Answer 1

S3

(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 2

Proposes 2

Answer 2

S3
2 (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.

Question 3

Tainted Property Definition

Answer 3

S5
(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

Question 4

Qualifying instrument forfeiture offence

Answer 4

S5

(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.

Question 5

Meaning of significant criminal activity

Answer 5

S6

(1) 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.

Question 6

Meaning of unlawfully benefited from significant criminal activity

Answer 6

S7
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 7

(1) The High Court must make a Profit Forfeiture Order if it is satisfied on the balance of probabilities that—

Answer 7

S55

(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 8

Instrument of crime definition

Answer 8

S5
(a) Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.
Of note
(b) in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1) or (2A) of the Terrorism Suppression Act 2002, includes funds (as defined in section 4(1) of that Act) allocated for the purposes of committing that offence; and
(c) in relation to any property referred to in paragraphs (a) and (b), the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this Act or the Sentencing Act 2002, excluding any severable interest or granting relief.

Question 9

Assessment process before application for restraint of instrument of crime. Used to determine:

Answer 9

• 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 10

Affidavit required for application Needs to outline:

Answer 10

• 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).
• Property: − describe property sought to be restrained and its value − show that offender owns, has custody or control.

Question 11

What must occur before Criminal Proceeds action can be taken And what belief is required.

Answer 11

A restraining order is the first step in the asset seizure process. 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 – that it has been acquired, or directly or indirectly derived, from “significant criminal activity”.

Question 12

Investigative Procedure What points to cover when interviewing a suspect

Answer 12

• suspect’s legitimate income
• suspect’s illegitimate income
• expenditure
• assets
• liabilities
• acquisition of financial records, from banks, financing companies, loan sharks, family trust documents
• clarification of documentary evidence located, as per above.