Money Laundering Flashcards
Define conceal under Section 243(1) CA61
In relation to property, means to disguise the property and includes without limitations.
To convert property from one form to another
To disguise the nature, source, location, disposition, or ownership of the property.
Define deal with under Section 243(1) CA61
To dispose of the property by way of sale purchase gift
Transfer possession of property
Bring property into NZ
Remove property from NZ
Define interest under Section 243(1) CA61
To deal with any property in any manner and by any means
A legal or equitable estate or interest in the property
A right power or privilege in connection with the property
Define offence under Section 243(1) CA61?
Any offence that is punishable under NZ law including any act wherever committed that would be an offence in NZ if committed in NZ
Define proceeds under Section 243(1) CA61
Property that is derived or realised, directly or indirectly by any person from the commission of the offence
What are the elements is section 243(3) CA61?
(Liabilities of proceeds)
Everyone is liable for 5 years who obtains or has possession of any property (proceeds)
With intent to engage in a money laundering transaction in respect of that property
Knowing or believing that all or part of the property is the proceeds of the offence.
What are the elements of Section 243(4) CA61?
(Conceal)
A person engages in money laundering transaction if, in concealing any property or by enabling any person to conceal any property
Deals with that property
Assist any other person in dealing with that property
What is section 243(4A) CA61?
(Concealment)
Prosecution is not required to prove the defendant had an intent to:
Conceal any property
Enable any person to conceal any property.
What is section 243(5) CA61?
(Money laundering proof)
In any prosecution against s2 and 3
Not necessary for prosecution to prove the defendant know the property was proceeds from a particular offence
No defence if defendant believed any property to be the proceeds of a different offence to the one committed.
What is section 243A CA61
Person charged under s243(2) & s243(3) in respect to any property that is the proceed of an offence in the above section applies eventhough the person who committed the offence Has not been charged or convicted with that offence
What are the three phases of money laundering?
Placement
Cash enters the financial system
Layering
Money is involved in a number of transactions
Integration
Money is mixed with lawful funds or integrated back in to the economy
What is section 245 CA61
Section 243 applies to an act occurred outside NZ only if
The act was was an offence under the law where and when it occurred
It is an act which section 7 & 7A applies
Theres an enactment for that offence in NZ
What are the elements for Money laundering?
In respect to any property that is the proceeds of an offence:
- Engages in a money laundering transaction
- Knowing or believing that all or part of the property is the proceeds of an offence
OR
- being reckless as to whether or not the property is the proceeds of an offence
What is section 3 Crimnal proceeds Act 2009? (Forfeiture)
Establish a regime for the forfeiture of property
1. - Derived from significant criminal activity
- Represents value of persons unlawfully derived income
- Purpose of the act is to
- Eliminate chance of person to profit from significant criminal activity
- Deter significant criminal activity
- Reduce ability to continue or expand criminal activity
- Deal with matters associated with foreign forfeiture orders that rise in NZ
What is an AFO?
Assets Forfeiture Order, issued by the high court on application.
Successful application must show on the balance of probability that specific assets have bee acquired or tainted by significant criminal activity
Define tainted property under section 5 criminal proceeds act
Property that wholly or in part been
Acquired as a result of significant criminal activity OR
Directly or indirectly derived from significant criminal activity AND
includes property that has been acquired from significant criminal activity.
Define qualifying instrument forfeiture order property under section 5 criminal proceeds act
Offence punishable by a max term of 5 years or more
Includes conspires attempts accessory offences if max term is 5 years or more
Define instrument of crime property under section 5 criminal proceeds act
Property used to commit or facilitate the commission of a qualifying instrument forfeiture offence
Relation to section 8 (1) and (2AA) terrorism suppression Act, includes funds allocated for the purposes of committing the offence
Proceeds of any property is converted after the commission of the qualifying instrument forfeiture offence.
Define significant criminal activity property under section 5 criminal proceeds act
Any activity engaged by a person is a criminal offence would amount to:
Consists of 1 or more punishable offence by a maximum term of 5 years or more
From which property, proceeds or benefits of a value of $30,000 or more have been acquired or derived
What is section 7 criminal proceeds act 2009?
(Unlawfully benefitted)
A person has unlawfully benefitted from significant criminal activity is the person has knowing directly or indirectly derived a benefit from significant criminal activity.
Unless the context says otherwise
What is Section 55 Criminal Proceeds Act 09?
(PFO)
High court must make Profit Forfeiture Order if on the balance of probability;
- The respondent has unlawfully benefited from a criminal activity
- The respondent has interest in that property
What does section 142B Sentencing Act set out for prosecution obligations?
To consider notifying the court of any relevant property that is an instrument of crime so forfeiture of that property be considered.
What is the purpose of a restraint of instrument of crimes?
To prevent disposal of the assets or erosion of its value while criminal proceedings are in place.
Application for a restraining order must be made first, can be made without notice if court is satisfied there’s risk of property being destroyed, devalued, disposed
What should the officers affidavit for a restraint application outline?
Who the OC is
Offender offender
SW - Nature of charge and involving what property
Property - Describe property sought for restraint and its value, show offender owns property
Any admissions made in the interview
Before making an application for restraint, what is determined during assessment process?
The value
Equity
Third party interest
Cost of action in respect to property
What happens to a restraint order if no conviction order is entered?
The restraint order will lapse, no instrument of forfeiture
What is the rule regarding property only part used in relation to an instrument forfeiture order?
May be subject to forfeiture if reasonable ground to show the instrument was used to facilitate criminal activity.
Even if the property is partly used, the entire property is considered an insturment for the purposes of crime.
What must happen before criminal proceeds action can be taken?
- Restraining order is the first step.
- Application to high court is made showing on reasonable grounds for belief that the property is tainted.
What must the court be satisfied under section 25(1) criminal proceeds act?
(Defendant benefitted)
Reasonable grounds to believe the defendant has benefitted as a result of significant criminal activity and the respondent has interest in the property
What does criminal proceeds act 2009 empower the commissioner with?
To apply for restraining orders assets forfeiture orders and profit orders.
These powers have been delegated solely on Asset Recovery Unit members to apply for restraining orders AFO and PFO
What must the court be satisfied under section 24(1) criminal proceeds act?
(Property RCA)
Reasonable grounds to believe the property is tainted property as a result of significant criminal activity
What must the court be satisfied under section 26(1) criminal proceeds act?
(Person QIF offence)
Respondent must have been charged with a qualifying instrument forfeiture offence (or RGTB will be in 48 hours)
Must be satisfied RGTB property will be subject of the order was used to commit the qualifying instrument order
When interviewing suspect, what points should be considered?
(Money Laundering)
Suspect legitimate income
Illegitimate income
Expenditures
Assets
Liabilities
Acquisition of financial records
Clarification of the above documentary evidence
How long is a restraining order valid for?
1 year from the date made
The court may make an extension for 1 year before it expires
What was held in Pulman v Police?
(Purpose of forfeiture regime)
Purpose of forfeiture regime to prevent a person to actually profit from significant criminal activity but also the chance they may be able to do so and deter significant criminal activities.
