Money Laundering & CPRA 2009 Flashcards
What is the meaning of money laundering?
- 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 - engages in - elements
S243(2) CA61
- Everyone is liable to imprisonment for a term not exceeding 7 years who, 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
With intent to engage in
Elements
S243(3) CA61
Everyone is liable to imprisonment for a term not exceeding 5 years who obtains it has in his or her possession any property (being property what is the proceeds of [an offence] committed by another person.)
(a) with intent to engage in a money laundering transaction in respect of that property; and
(b) knowing or believing that all or part of the property is the proceeds of [an offence], or being reckless g reckless as to whether or not the property is the proceeds of [an offence]
Money laundering
Legislation definitions
Money laundering transaction
s243(4) CA61
In concealing any property or by enabling any person to conceal any property, that person ;
a) deal with that property , or
b) assists any other person, whether directly or indirectly, to deal with that property.
Money laundering
Legislation definitions
Conceal
S243(1) CA61
In relation to property means to conceal or disguise the property and includes without limitations:
(a) to convert the property from one form to another; or
b) to conceal or disguise the nature, source, location, disposition, or ownership of the property or of any interest in the property
Deal with
S243 (1) CA61
In relation to any property means to deal with the property in any manner and by any means, and includes, without limitations:
(a) to dispose of the property, whether by sale, purchase, gift or otherwise.
(b) to transfer possession of the property.
(c) to bring the property into NZ
(d) to remove the property from NZ
Interest
S243(1) CA61
In relation to property, means:
(a) a legal or equitable estate or intent in the property; or
(b) a right, power, or privilege in connection with the property
Offence
243(1) CA61
Offence: means an offence ( or any offence described as a crime) that is punishable under NZ law; including any act, whenever committed, that would be an offence in NZ if committed in NZ.
Proceeds
S243(1) CA61
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
D - Cash enters the financial system
E - An offender makes money from selling cannabis and then deposits the proceeds into an associates bank account
- Layering
D - money is involved in a number of transactions
E - The associate transfers the money into an account held by a “shell” company that the offender is the director of.
- Integration
D - money is mixed with lawful funds or integrated back into the economy, with the appearance of legitimacy.
E - The money is declared as revenue for the company, tax is paid, and then the offender pays himself director fees or a salary out of company account
CP(R)A 2009
section 3
(1)
(1) The primary purpose of this act is to establish a regime for the forfeiture of property -
(a) That has been deprived directly or indirectly from significant criminal activity; or
(b) that represents the value of a persons unlawful derived income.
CP(R)A 2009
section 3
(2)
The criminal proceeds and instruments forfeiture regime established under this act proposes to -
(a) “eliminate” the chance for a person to profit from under taking or being associated with significant criminal activity; and
(b) DETER significant criminal activity, and
(c) REDUCE the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
(d) DEAL with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ.
CP(R)A 2009
Legislation
Qualifying instrument forfeiture offence
S5 CP(R)A 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 maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more
Meaning of significant criminal activity
S6 CP(R)A 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 amounted to offending -
(a) that consists of, or includes, 1 or more offences punishable by a maximum 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
Meaning of u lawfully benefited from significant criminal activity
S7 CP(R)A 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.)
CP(R)A 2009
Legislation - section 5
(1) the high court must make a profit forfeitures order if it is satisfied in the balance of probabilities that -
(a) the respondent has unlawfully benefited from significant criminal activity; and
(b) the respondent has interest in that property.
CP(R)A 2009
Legislation
Instrument of crime definition
S5 CP(R)A 2009
Instrument of crime means -
(a) property used ( wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.
CP(R)A 2009
Assessment process before application for restraint in instrument of crime
Used to determine:
- the value of the asset
- the equity in the asset
- any third party interest in the asset
- cost if action in respect of the asset
CP(R)A 2009
Affidavit required for application
Needs to outline:
• O/C
- details
• Offenders
- details
- charges
- criminal convictions
• SW
- describe the nature of the offending discovered at or involving the property (asset) concerned
• Admissions made during interviews
• Property
- describe property sought to be restrained and it value
- show that offender owns, has custody or control
CP(R)A 209
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 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 legit income
- suspects 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.
