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Association > Money Laundering and criminal proceeds (Recovery) Act 2009 > Flashcards

Money Laundering and criminal proceeds (Recovery) Act 2009 Flashcards

1
Q

What is money laundering?

A

It is a process of deal with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired

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2
Q

Three stages of money laundering cycle

A

1) Placement
Cash enters the financial system

EG. offender sells cannabis and deposits money to an associates account

2) Layering
Money is involved in a number of transactions

EG. associate transfers money into a shell company directed by the offender

3) Integration
Money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy

EG. money is declared as revenue from the company, tax is paid and then offender pays himself as a salary/director fees

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3
Q

Money laundering
s243(2)

A
  • 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
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4
Q

What is conceal in relation to property

A

Means to conceal or disguise the property and includes without limitation:
- convert the property from one form to another
- conceal or disguise the nature, source, location or ownership of the property or of any interest to the property

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5
Q

What is deal with in relation to property

A

Means to deal with the property in any manner and by any means and includes without limitation:
- to dispose of the property, sale, purchase, gift etc
- transfer possession of property
- bring property into NZ
- remove property from NZ

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6
Q

What is interest in relation to property

A
  • A legal or equitable estate or interest in the property
  • A right, power or privilege in connection with the property
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7
Q

What is proceeds

A

in relation to an offence, means any property that is derived or realised directly or indirectly by any person from the commission of an offence

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8
Q

What is property?

A

Any real or personal property, situated in NZ or elsewhere, tangible or intangible and includes any interest in real or personal property

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9
Q

Punishment for money laundering

A

7 years - engages in money laundering

5 years - has in possession of property with intent to engage in money laundering

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10
Q

Can a person be charged under 243(2) and 243(3) even if the offender has not been charged or convicted with the offence?

A

Yes

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11
Q

What is s243(2) and s243(3)

A

243(2) - engages in money laundering, knowing or believing part or all 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

243(3) - has in possession of property with intent to engage in money laundering transaction, knowing or believing part or all the property is the proceeds of an offence or being reckless as to whether or not the property is the proceeds of an offence

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12
Q

When does s243 only apply to certain acts outside NZ

A
  • If it is an offence under the law of the place it occurred
  • act which s7 and s7A applies
  • act is an offence in NZ and no further requirements for the act to be an offence where it has occured
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13
Q

Can a person be guilty of money laundering if one of the phases of money laundering cycle is proven

A

Yes

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14
Q

Primary purpose of the Criminal proceeds (Recovery) Act 2009

A

To establish a regime for the forfeiture of property:

  • that has been derived directly or indirectly from significant criminal activity
  • represents the value of a person’s unlawfully derived income
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15
Q

4 points of the criminal proceeds and instruments act are to:

A
  • eliminate chance of persons to profit from undertaking or being associated with significant criminal activity
  • deter significant criminal activity
  • reduce ability for criminal or their associates to expand in criminal enterprise
  • deals with foreign restraining and forfeiture orders that arise in NZ
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16
Q

Tainted property
s5 CPRA 2009

A

a) Any property that has wholly or in part been:
i) acquired as a result of significant criminal activity
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

17
Q

What offences qualify as a forfeiture offence?

A

5+ years

Includes an attempt, conspiring or accessory to the offence that is 5+ years

18
Q

What is ‘significant criminal activity’

A

An offence is proceeded by a criminal offence would be 5+ years

OR

Property, proceeds or benefits of a value of $30k has been directly or indirectly acquired

19
Q

What is unlawfully benefited from significant criminal activity?

A

When a 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

20
Q

When does the High Court must make a profit forfeiture order?

A

Satisfied on the balance of probabilities that:

  • the respondent has unlawfully benefited from significant criminal activity
  • respondent has interests in property
21
Q

What are the circs for PULLMAN v POLICE

A

PULLMAN sold a significant amount of precursor materials in the knowledge that it was to manufacture illegal drugs. He stated the cash was placed in a box and used to pay employer wages.

He argued he did not personally benefit from the sale of processors as the employer received all the sale proceeds.

It was held in court that the forfeiture order was not just do prevent the person to profit but to prevent the person a chance to do so and to deter significant criminal activity

22
Q

What is an instrument of crime?

A

Property used (wholly of partly) to commit or facilitate the commission of a qualifying forfeiture offence.

23
Q

Who needs to notify the court to consider property that is an instrument of crime for forfeiture?

A

The prosecutor.

Property could be a house used to manufacture illegal drugs or a car used in the delivery of illegal drugs

24
Q

What are the duties of a prosecutor if the offender is found guilty of a qualifying instrument forfeiture offence?

A

Prosecutor must consider whether to make a forfeiture request and notify the court in writing:

  • details of that property
  • name and identifying details of anyone who has any interest in that property
25
Q

What does the assessment process for the application in restraining property do?

A
  • the value of the asset
  • equity in the asset
  • any third part interest in the asset
  • the cost of action i respect of the asset
26
Q

Affidavit required for application in restraining property

A
  • OC details
  • Offender details, charges and convictions
  • SW
  • Admissions in interview
  • What property is being sought and show that the offender has custody or control of it
27
Q

What happens to restraint order if there is no conviction

A

No forfeiture

28
Q

What is the first step in the asset seizure process

A

A restraining order. In the case of tainted property and benefits, must show courts reasonable grounds for belief that the property is detained and was acquired or directly or indirectly derived from significant criminal activity

29
Q

Can property that was partly used to facilitate significant criminal activity be subject of a instrument forfeiture order?

A

Yes, entire property is subject to instrument forfeiture order

30
Q

How to make restraining orders for specific property
24(1) CPRA 2009

A
  • Court has to be satisfied it has reasonable grounds to believe that the property is tainted property
  • That is has been acquired as a result of, directly or indirectly derived from significant criminal activity
31
Q

How to make restraining orders for all or part of a respondents property
25(1) CPRA 2009

A
  • Court has to be satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity
  • The respondent has interest in the property to be restrained
32
Q

Making restraining order relating to instrument of crime

A

Two criteria’s must be met:

1) respondent must have been charged with a qualifying instrument forfeiture offence, or courts satisfied respondent will be charged within 48 hours

2) courts must be satisfied that it has RGTB the property that will be the subject of the order was used to commit or facilitate the qualifying offence

33
Q

How long is restraining order and an extension valid for?

A

1 year each

34
Q

Interviewing money laundering or proceeds recovery suspects

A
  • suspects legitimate income
  • suspects illegitimate income
  • assets
  • expenditure
  • acquisition of financial records from banks, other finance companies and family trust

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