New Zealand Law Society - Proceeds of Crime Law in New Zealand

Proceeds of Crime Law in New Zealand

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Reviewed by Chris Macklin

Proceeds of crime litigation by the Commissioner of Police has resulted in hundreds of millions of dollars’ worth of assets being restrained, and many millions of dollars of assets being forfeited to the Crown. The value of assets restrained and forfeited continues to grow, on some accounts at an almost exponential rate.

The law in this area is draconian, and the stakes can be eye watering for clients and practitioners alike. Proceeds work also raises a full spectrum of legal issues, evidential points, aspects of the Search and Surveillance Act 2012, and broader organised crime related law– including laws targeting money laundering and terrorism.

Perhaps the most challenging aspect for many practitioners is that proceeds law routinely straddles the line between the courts’ civil and criminal jurisdictions. Practitioners have to be familiar with all the key tenets of criminal law, and yet primarily operate in the civil sphere, subject to the many technical requirements set down by our old friends, the High Court Rules.

In short, it is fair to say that proceeds of crime law can be fairly daunting. Accordingly, if nothing else, credit is due to Dr Heather McKenzie for tackling the subject head on, and producing a relatively succinct (just over 300 pages of text) introduction to the subject.

The text sets out to be “primarily an educative tool” and its value must be appreciated in that light. This is not a comprehensive practitioner’s bible, although I, for one, tend to doubt the value of texts claiming to be authoritative anyway.

As an introduction, and as a thorough exposition of the key concepts and developments in the field, the text is difficult to fault. Nonetheless, it would be wrong to rely on this text (or as I say, any text) as a substitute for experience, thorough research, etc.

A current reprint of the Criminal Proceeds (Recovery) Act 2009 is appended, but the text is arranged by logical topics/chapters, rather than as a section by section commentary to the Act. Those practising in proceeds law could do a lot worse than keep a copy handy for ready reference, and as a high quality primer when issues arise. Practitioners not familiar with proceeds work will also find this text a handy reference.

The more studious among us could read the text cover to cover, and get a good oversight of the law and key developments. Those under more time pressure (I suspect 99.5%) could usefully cherry pick the book when faced with specific issues.

Cross references and helpful tables are included, and the analysis is generally easy to follow and, importantly, up to date (as at early 2015).

Like any book (as opposed to looseleaf), there will be challenges keeping up to date. Nonetheless, the first principles of proceeds law are well presented, and not likely to date as quickly as more nuanced areas that lie out at the cutting edges.

Overall, the text is likely to prove a useful starting point both in terms of understanding underlying concepts, and identifying the key authorities and developments. As someone who practises in this area, I am glad to have a copy of this text handy and would recommend it to others. Both those working in the field, and those with any interest in proceeds law, are likely to find this text both easy to read and easy to access when material is required on a specific point.

Proceeds of Crime Law in New Zealand, LexisNexis NZ Ltd, February 2015, 978-1-927313-05-3, 457 pages, paperback, $100.00 (GST included, p&h excluded).

Chris Macklin is a senior prosecutor and partner at Gordon & Pilditch in Rotorua. He specialises in criminal prosecutions, but also regularly conducts regulatory prosecutions, including prosecutions under the Civil Aviation Act 1990, and the Resource Management Act 1991. Chris also acts for the Police in proceeds of crime litigation. He is a member of the New Zealand Law Society’s Criminal Law Committee.

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