Criminal Proceeds (Recovery) Act 2009 Flashcards
Criminal Proceeds (Recovery) Act 2009
Legislation
Purpose
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(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.
Criminal Proceeds (Recovery) Act 2009
Legislation
Proposes to
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(2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a) ELIMINATE the chance for persons to profit from undertaking 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 New Zealand.
Criminal Proceeds (Recovery) Act 2009
Legislation
Tainted Property Definition
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(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
Criminal Proceeds (Recovery) Act 2009
Legislation
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 for that attempt, conspiracy, or activity is 5 years or more.
Criminal Proceeds (Recovery) Act 2009
Legislation
Meaning of significant criminal activity
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(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.
Criminal Proceeds (Recovery) Act 2009
Legislation
Meaning of unlawfully benefited from significant criminal activity
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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).
Criminal Proceeds (Recovery) Act 2009
Legislation
(1) The High Court must make a Profit Forfeiture Order if it is satisfied on the balance of probabilities that—
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(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
Legislation
Instrument of crime definition
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Instrument of crime means–
(a) Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.
Of note
(b) in relation to a qualifying instrument forfeiture offence that is an offence against section 8(1) or (2A) of the Terrorism Suppression Act 2002, includes funds (as defined in section 4(1) of that Act) allocated for the purposes of committing that offence; and
(c) in relation to any property referred to in paragraphs (a) and (b), the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this Act or the Sentencing Act 2002, excluding any severable interest or granting relief.
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. 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.
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 RGTB (reasonable grounds for belief) that the property is tainted – that it has been acquired, or directly or indirectly derived, from “significant criminal activity”.
Criminal Proceeds (Recovery) Act 2009
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.
