Money Laundering 2

Question 1

Tainted Property Definition

Answer 1

Tainted Property Definition:
Section 5 Criminal Proceeds (Recovery) Act 2009

(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 2

What is a qualifying instrument forfeiture offence

Answer 2

What is a qualifying instrument forfeiture offence

S5 Criminal Proceeds (Recovery) Act 2009

(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 is 5 years or more.

Question 3

Meaning of significant criminal activity

Answer 3

Meaning of significant criminal activity

S6 Criminal Proceeds (Recovery) Act 2009

(1) “an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending–
(a) 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 4

Meaning of unlawfully benefited from significant criminal activity

Answer 4

Meaning of unlawfully benefited from significant criminal activity:

Section 7 Criminal Proceeds (Recovery) Act 2009

A person has unlawfully benefited from significant criminal activity 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 5

Assessment process before application for restraint of instrument of crime.

Used to determine:

Answer 5

Assessment process before application for restraint of instrument of crime.

Used to determine:

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

Question 6

Criminal Proceeds (Recovery) Act 2009

Affidavit required for application

Needs to outline:

Answer 6

• 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 7

Criminal Proceeds (Recovery) Act 2009

What must occur before Criminal Proceeds action can be taken?

And what belief is required.

Answer 7

What must occur before Criminal Proceeds action can be taken?

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 8

When considering the principal charge of money laundering, under s243(2), proof of the following four elements is required:

Answer 8

​When considering the principal charge of money laundering, under s243(2), proof of the following four elements is required:

1. Dealing with property or assisting with such dealing
2. The source of the property being the proceeds of an offence punishable by 5 years imprisonment or more committed by another person
3. Knowledge or belief that the property was the proceeds of such an offence, or recklessness as to whether it was the proceeds of such an offence
4. An intention to conceal the property