Money laundering Flashcards
(28 cards)
Money laundering
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
Section 243(2), Crimes Act 1961
7 years imprisonment
(1) In respect of any property that is the proceeds of an offence
(2) Engages in a money laundering transaction
(3) 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
Section 243(3), Crimes Act 1961
(1) Obtains or has in his or her possession
(2) Any property (being property that is the proceeds of an offence committed by another person) -
(i) with intent to engage in a money laundering transaction in respect of that property, and
(ii) 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
Conceal
To disguise the property
(a) convert property from on form to another
(b) conceal or disguise the nature, source, location, disposition or ownership of the property
Deal with
To deal with the property in any manner and by any means
(a) disposing of property (sale, purchase, gift etc)
(b) transfer possession of property
(c) bring property into NZ
(d) remove property from NZ
Proceeds
Any property that is derived or realised, directly or indirectly, by any person from the commission of the offence
Section 243(4), Crimes Act 1961
A person engages in a money laundering transaction if, in concealing any property or by enabling any person to conceal any property, that person -
(a) deals with that property
(b) assists any other person, whether directly or indirectly, to deal with that property
Section 243(4A), Crimes Act 1961
Prosecution not required to prove
The prosecution is not required to prove that the defendant had an intent to -
(a) conceal any property
(b) enable any person to conceal any property
Section 243(5)(a) and 243(5)(b), Crimes Act 1961 (particular offences)
243(5)(a) -
Not necessary to prove that the defendant knew or believed that the property was the proceeds of a particular offence
243(5)(b) -
No defence that the defendant believed any property to be the proceeds of a particular offence when in fact it was the proceeds of another offence
Section 243A, Crimes Act 1961
Person may still be charged under s243(2) or 243(3)
A person may be charged under s243(2) or 243(3) in respect of property that is proceeds of an offence, even though the person who committed the offence -
(a) has not been charged with that offence
(b) has not been convicted of that offence
Section 245 - defence to money laundering
An act that occurred outside NZ and that is alleged to constitute an offence resulting in proceeds only if -
(a) the act was an offence under the law of the place where and when it occurred
(b) it is an act to which section 7 or 7A of this act applies
(c) an enactment provides that the act is an offence in NZ and no additional requirement exists for the act to be an offence in the place where and when it occurred
What are the three stages of the money laundering cycle?
(1) Placement - cash enters the financial system
(2) Layering - Money is involved in a number of transactions
(3) Integration - Money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy
What is the purpose of the Criminal Proceeds (Recovery) Act 2009?
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
What does the criminal proceeds and instruments forfeiture regime propose to do?
(a) Eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity
(b) Deter significant criminal activity
(c) Reduce the ability of criminals and persons associated with crime to continue or expand criminal enterprise
(d) Deals with matters associated with foreign restraining orders and forfeiture orders that arise in NZ
Assets Forfeiture Order (AFO)
- Issued by the High Court
- Shows on the balance of probability that specific assets which have been acquired have been tainted by significant criminal activity
Tainted property
Any property that has been (wholly or in part) -
(a) Acquired as a result of significant criminal activity, or
(b) Directly or indirectly derived from significant criminal activity
Qualifying instrument forfeiture offence
(a) An offence punishable by 5years imprisonment or more
(b) Includes attempts, conspiracy or being an accessory to an offence if the maximum term of imprisonment for that attempts, conspiracy or activity is 5 years or more
Significant criminal activity
Activity engaged in by a person that would amount to offending -
(a) Consists of, or includes, one or more offences punishable by 5 or more years imprisonment
(b) From which property, proceeds or benefits of a value of $30,000 or more have directly or indirectly been acquired or derived
Unlawfully benefited from significant criminal activity
If the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity
Profit forfeiture order (section 55, Criminal Proceeds (Recovery) Act 2009)
High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that -
(a) Respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity, and
(b) The respondent has interests in property
Instrument of crime
(a) Property used to commit or facilitate the commission of a qualifying instrument forfeiture offence
(b) Includes funds allocated for the purposes of committing an offence in respect of an offence against the Terrorism Suppression Act 2002
Section 142B, Sentencing Act 2002
(Obligations of the Prosecutor)
If a person is convicted of a qualifying instrument forfeiture offence and any property was used to commit or facilitate the commission of that offence, the prosecutor must notify the court in writing of -
(a) Details of that property
(b) Name and identifying details of any person (other than offender) who has an interest in the property
Restraint of instrument of crime
Restraining property while the criminal proceedings take their course to prevent the disposal of the asset or erosion of its value.
Application made under section 26 Criminal Proceeds (Recovery) Act 2002. This is the first step in the asset seizure process
Assessment process prior to restraint of instrument of crime application
Assessment process is required first. It is conducted to determine:
- Value of the asset
- Equity in the asset
- Any third party interest in the asset
- Cost of action in respect of the asset
Accompanying affidavit must include:
(1) OC details
(2) Offender details, charges, convictions
(3) Search warrant - nature of offending discovered
(4) Admissions made
(5) Property sought, value and ownership/control by the offender
