Proceeds Recovery

Question 1

What is the primary purpose of the criminal proceeds recovery act?

Answer 1

To establish a regime for the forfeiture of property that

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

Question 2

What is the meaning of unlawfully benefitting from significant criminal activity?

Answer 2

Unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if they knowingly derive a benefit directly or indirectly from significant criminal activity whether or not they undertook or were involved in that significant criminal activity.

Question 3

What must occur before criminal proceeds action can be taken?

Answer 3

A restraining order must be applied for and in the case of tainted property and benefits from crime, an application to the high court must show reasonable grouds for belief that it was obtained from significant activity.

Question 4

When must the high court make a profit forfeiture order?

Answer 4

When the high court is satisfied on the balance of probabilities

• the respondent has unlawfully benefitted from significant criminal activity within the relevant period of criminal activity and
• the respondent has interest in property

Question 5

What is an asset forfeiture order (AFO)?

Answer 5

An order issued by the high court on a successful application that shows on the balance of probabilities that specific assets which have been acquired have been tainted by significant criminal activity.

Question 6

What is a qualifying instrument forfeiture offence?

Answer 6

An offence punishable by 5 years imprisonment or more and includes any attempt, conspiracy or accessory where the maximum penalty is 5 years or more for the attempt, conspiracy or accessory.

Question 7

What does instrument of crime mean?

Answer 7

• property use in whole or part to commit or facilitate the commission of an offence
• in relation to a qualifying instrument forfeiture offence relating to terrorism, includes funds allocated for the purpose of that offence
• and any proceeds of the disposition of any property described above or into which the property is converted after the commission of a qualifying instrument forfeiture offence unless otherwise ordered by a court.

Question 8

In relation to restraining orders, what is significant about the asset recovery unit?

Answer 8

Only they can apply for restraining orders (apart from those relating to instruments of crime), asset forfeiture orders and profit orders

Question 9

What is an instrument forfeiture order?

Answer 9

An order made under s142N of the Sentencing Act 2002.

Question 10

Can property be partially forfeitured?

Answer 10

Yes

Question 11

How long is a restarining order valid for?

Answer 11

They are valid for 1 year.

An application can be made to extend the orders.

Question 12

What does the criminal proceeds and instruments forfeiture regime propose to do?

Answer 12

• eliminate the chance for persons to profit from undertaking or being associated with criminal activity
• deter significant criminal activity
• reduce the ability of criminals and associates to continue to expand criminal enterprises
• deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ

Question 13

What is the meaning of significant criminal activity?

Answer 13

Significant criminal activity means, unless the context otherwise requires, offending

• that consists of, or includes 1 or more offence punishable by 5 years imprisonment or more or
• from which property, proceeds, or benefits of a value of $30000 or more have been directly or indirectly acquired.

Question 14

What must the prosecutor do where a person is convicted of a qualifying instrument forfeiture offence?

Answer 14

If in the prosecutor’s opinion the court should consider making a forfeiture order in relation to property used in the offending, notify the court in writing

• the details of that property
• the name and identifying details of any person (other than the offender) who, to the knowledge of the prosecutor has an interest in the property.

Question 15

For an order to be made under S26(1) in relation to an instrument of crime, what are the two criteria that must be met?

Answer 15

• the respondent must be charged with a qualifying instrument forfeiture offence (or crown must be satisfied that the respondent will be charged with one within 48 hours) and
• the court has reasonable groudns to beleive that the property subject to the order was used to commit or facilitate the commission of the qualifying instrument forfeiture offence.

Question 16

Under the Criminal Proceeds Recovery Act 2009 who is included as a prosecutor?

Answer 16

• any other employee of the person/agency by whom the prosecutor is employed who has responsibility for any matter directly related to the proceedings
• counsel representing the person who commenced the proceedings
• in the case of private prosecutions, the person who commenced the proceedings or counsel representing that person.

Question 17

For an order to be made under S24(1) in relation to specific property, what must be satisfied?

Answer 17

The court has to be satisfied that it has reasonable grounds to believe that the property is tainted property.

Question 18

Where there are potential proceeds what should the OC do?

Answer 18

Notify the Crown of the property that is an instrument of crime and in your referral request that a prosecutors notice be filed with the courts.

Question 19

Before preparing a restraining order for property, what assessment is carried out on the proprty?

Answer 19

Value of the asset
equity in the asset
any third party interest in the asset
te cost of action in respect of the asset

Question 20

For an order to be made under S25(1) in relation to all or part of the respondents property, what must be satisfied?

Answer 20

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 21

Who must notify the court of relevant property?

Answer 21

The prosecutor

Question 22

When interviewing a suspect about money laundering or where proceed recovery action is considered, what points should be covered off?

Answer 22

• suspects legitimate income
• suspects illigetimate income
• expenditure
• assets
• liabilities
• acquisition of financial records from all sources
• clarification of documentary evidence located

Question 23

What occurs where on part of the property is used for crime?

Answer 23

The entire property is still an instrument of crime and may be subject to forfeiture.

Question 24

What happens when no conviction is entered in relation to a restraint order?

Answer 24

The restaint order will lapse and there will be no instrument of forfeiture

Question 25

What is tainted property?

Answer 25

Means any property that has, wholly or in part, been
-acquired as a result of significant criminal activity or
-directly or indirectly derived from significant criminal activity;
and includes property that has been acquired as a result of, directly or indirectly, more than 1 activity if at least 1 of those activities is a significant criminal activity.