MONEY LAUNDERING & CRIMINAL PROCEEDS (RECOVERY) ACT 2009 2.

Question 1

**significant criminal activity

Answer 1

**significant criminal activity

(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.

Question 2

Unlawfully benefited from significant criminal activity

Answer 2

Unlawfully benefited from significant criminal activity-

In this Act, unless the context otherwise requires, 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).

Profit Forfeiture Order
Section 55, 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.

Question 3

Case Study: Unlawfully benefited from significant criminal activity

Answer 3

Case Study: Unlawfully benefited from significant criminal activity

Pulman v Commissioner of Police
In this case the Court held that the purpose of the forfeiture regime was not only to prevent the ability of a person to actually profit from undertaking significant criminal activity but also the “chance” that they may be able to do so and also to deter significant criminal activity.

Question 4

Assessment process

Before preparing such an application an assessment process is required.

Answer 4

The assessment process is conducted 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

Question 5

Affidavit required for application

Such an application will require a straight forward affidavit from the officer in charge of the file outlining:

Answer 5

Such an application will require a straight forward affidavit from the officer in charge of the file outlining:

•	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 6

What must occur before Criminal Proceeds action can be taken

Answer 6

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 7

*Restraining Orders

Answer 7

*Restraining Orders:

The Criminal Proceeds (Recovery) Act 2009 empowers the Commissioner of Police to apply for restraining orders, assets forfeiture orders and profit orders.

The Commissioner has delegated these functions solely to members in Asset Recovery Units.

Question 8

In relation to all or part of respondent’s property -

For an order to be made under s25(1) of the Criminal Proceeds (Recovery) Act 2009,

Answer 8

In relation to all or part of respondent’s property-

For an order to be made under s25(1) of the Criminal Proceeds (Recovery) Act 2009,

the Court has to be satisfied that it has reasonable grounds to believe that the respondent has unlawfully benefited from “significant criminal activity”,

and that the “respondent“ has an “interest” in the “property“ to be restrained.

Question 9

*A restraining order is valid for one year from the date on which the order is made.

Answer 9

A restraining order is valid for one year from the date on which the order is made.

The court may issue an extension before the expiry of the original order.

The extension is also valid for one year.

The restraining order remains in force for the prescribed time or until the making or declining of an assets or profit forfeiture order, whichever is the earlier.

Question 10

**Suspect interview – Money Laundering & Criminal Proceeds
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:

Answer 10

Suspect interview – Money Laundering & Criminal Proceeds.

When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:

• 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