Money laundering Flashcards
Conceal
Means conceal/disguise property,
a) to convert from one form to another
b) conceal/disguise the nature, source, location, disposition, ownership
Deal with
To deal with in any manner:
a) dispose of (sale, purchase, gift, otherwise)
b) transfer possession
c) bring into NZ
d) remove from NZ
Interest
a) legal or equitable estate
b) right, power or privilege
Offence
Punishable under NZ law, including any act, wherever committed, which would be offence if committed in NZ
Proceeds
Derived or realised, directly or indirectly, by any person from commission of offence
Property
Any real or personal property, or interest in, including tangible and intangible
Charges for money laundering
s243A C.A 61
Person may be charged under s243(2) or (3) regarding any property that is proceeds of offence, even though person:
a) has not been charged with that offence, or
b) has not been convicted of that offence
Acts outside NZ
s245 C.A 61
1) s243 applies to an act outside NZ and alleged to constitute offence resulting in proceeds, only if -
a) act is offence under law of place where/when occurred.
b) is an act to s7 or s7A of this act
c) act provides is offence in NZ & no additional requirements exist for act to be offence where occurred.
2) if charged under s243 and ss1A applies, presumed to be offence at place where occurred unless defendant puts matter to issue.
Money laundering cycle
Three stages:
Placement - cash enters financial system
Layering - money involved in a number of transactions
Integration - money mixed with lawful funds or integrated back into economy with appearance of legitimacy.
Elements
- in respect of any property that is proceeds to offence
- engaged in money laundering transaction
- knowing or believing, all or part of property is proceeds of offence, or
- being reckless to whether or not proceeds of an offence
Criminal Proceeds (Recovery) Act 2009
Purpose of s3
1- primary purpose to establish regime for property forfeiture
a) derived directly or intently from significant criminal activity, or
b) represents value of persons unlawfully derived income
2- criminal proceeds and instruments forfeiture regime established for purposes to-
a) eliminate chance to profit from significant criminal activity, &
b) deter s.c.a, &
c) reduce ability to continue to expand criminal enterprise, &
d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ
Assets forfeiture order (AFO)
Issued by High Court on successful application showing balance of probability that specific assets acquired have been tainted by s.c.a
Tainted propert
s5 C.P(R).A 2009
a) any property, wholly or in part, been -
i- acquired as result of s.c.a or
ii- directly or indirectly derived from s.c.a
b) includes property acquired from more than 1 activity if 1 of the activities is s.c.a
Qualifying instrument forfeiture offence
s5 C.P.(R).A 2009
- an offence with 5 + years imprisonment
- includes attempt to commit, conspiring to commit, being accessory if max term of activity is 5+ years
Significant Criminal Activity
s6 C.P.(R).A 2009
An activity that if proceeded against, would amount to offending -
a) including 1 or more 5+ year imprisonment offence, or
b) from which proceeds, property or benefits of value of $30,000 or more acquired or derived directly or indirectly
Unlawfully benefited from s.c.a
s7 C.P.(R).A 2009
- person unlawfully benefited from s.c.a if knowingly, directly or indirectly, derived a benefit, whether or not they undertook or was involved in s.c.a
Instrument of crime
s5 C.P.(R).A 2008
a) property used to commit to facilitate commission of qualifying offence
b) qualifying offence is against s8(1) or (2A) of Terrorism Suppression Act 2002
c) in relation to property, proceeds of any disposition of that property or any property into which the property is converted after commission of offence
s142B Sentencing Act 2002
Prosecutor to notify court of any relevant property that is instrument of associated crime.
If person convicted of offence and property used, prosecutor must notify to court in writing of -
a) details of that property
b) any other person with interest in that property
Restraining order for property application
s26 C.P.(R).A 2009
Before application an assessment is required for-
Value of asset
Equity in asset
Third party interest
Cost of action in respect of property.
Restraining order
Police commissioner delegated function solely to member of ARU. Only members of ARU may apply for restraining orders
Specific property s26(1) C.P.(R).A 2009
Two criteria must be met:
- respondant charged with qualifying instrument forfeiture order (or satisfied will be charged within 48hrs)
- court satisfied RGTB property is subject of order, used to commit/facilitate of qualifying instrument forfeiture offence
Interviewing suspects
- legitimate income
- illegitimate income
- expenditures
- assets
- liabilities
- financial records
- clarification of above document evidence
Legislation - s243 (4) C.A 61
Person engages in money laundering transaction if, in concealing propert, or enable another to conceal,
a) deal with that property or
b) assist another directly or indirectly to deal with property.
(4A)
Despite above, prosecution not required to prove defendant had intent to
a) conceal property or
b) enable another to conceal propert
Legislation - s243 (5) C.A 61
a) not necessary to prove defendant knew or believe property was proceeds to particular offence
b) not a defence that defendant believed property was proceeds of a particular offence when it was in fact proceeds of another offence
Legislation - s243(3) C.A 61
Liable to imprisonment not exceeding 5 years, who obtains or has possession of any property being proceeds of offence committed by another
a) with intent to engage in money laundering and
b) knowing/believing is proceeds of offence or being reckless to that
Legislation - s243(2) C.A 61
Liable for punishment not exceeding 7 years, regarding property that is proceeds to offence, engages in money laundering, knowing or believing is proceeds from offence or
Reckless to that knowledge or belief
