Money Laundering Flashcards
Definition of Money Laundering
Money laundering is the process…
Money laundering is the process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired.
Money Laundering
S243(2) CA61
In respect of any property…
In respect of 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]].
Money Laundering
S243(4) CA 1961
In concealing any property…
In concealing any property or by enabling any person to conceal any property, that person -
(a) deals with that property, or
(b) assists any other person, whether directly or indirectly, to deal with that property
Money Laundering
S243(1) CA61
Meaning of INTEREST
Interest: in relation to property, means:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power, or privilege in connection with the property.
Money Laundering
S243(1) CA61
Meaning of OFFENCE
Means an offence (or any offence described as a crime) that is punishable under New Zealand law, including any act,
wherever committed, that would be an offence in New Zealand if committed in New Zealand.
Money Laundering
S243(1) CA61
Meaning of PROCEEDS
In relation to [[an offence]], means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
Money Laundering Cycle
- Definition and Example
- Placement
- Cash enters the financial system
Money Laundering Cycle
- Definition and Example
- Layering
- Money is involved in a number of transactions.
Money Laundering Cycle
- Definition and Example
- Integration
- Money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy.
R v Harney
Recklessness
Recklessness means the conscious and deliberate taking of an unjustified risk.
In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk
R v Kennedy
The Guilty Knowledge…
The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
S3 Criminal Proceeds (Recovery) Act 2009
(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.
S5 Criminal Proceeds (Recovery) Act 2009
Tainted Property Definition
(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.
S6 Criminal Proceeds (Recovery) Act 2009
(1) In this Act, unless the context otherwise requires, significant criminal activity means 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.
S7 Criminal Proceeds (Recovery) Act 2009
Meaning of unlawfully benefited from significant criminal activity.
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).
S55 Criminal Proceeds (Recovery) Act 2009
(1) The High Court must make a Profit Forfeiture Order 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; and
(b) the respondent has interests in property.
Criminal Proceeds (Recovery) Act 2009
Assessment process before application for restraint of instrument of crime.
Used to determine:
- 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.
Criminal Proceeds (Recovery) Act 2009
Affidavit required for application
Needs to outline:
• 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.
- Admissions made during interview(s).
• Property:
− describe property sought to be restrained and its value.
− show that offender owns, has custody or control.
Criminal Proceeds (Recovery) Act 2009
What must occur before Criminal Proceeds action can be taken
And what belief is required.
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”.
Investigative Procedure
What points to cover when interviewing a suspect
- 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.
