Proceeds of Crime

A rare excursion into the criminal law, with a recent decision that touches on property, and the seizing thereof by the Crown when people have been naughty.

The Proceeds of Crime Act 1991 (and now its replacement) has been around for a while now, and most people heartily approve of the idea that the drug dealer should not be retaining the flash cars bought with unexplained cash.

However, one of the limitations of the Act was an all or nothing approach to seizing assets, that might see property taken valued far in excess of what the criminal gain might have been and in fairly blunt disregard of other people involved.  Where a person has been growing cannabis but, for example, the parents or ex-partners had an interest in the property as part owners; they have seen the lot dissapear to the Crown.  Some of these rural blocks can be worth many millions in a single title.

The Criminal Proceeds (Recovery) Act 2009 and the Sentencing Act 2002 might have been taken by most to continue that all-or-nothing approach but for a recent decision of the Court of Appeal in Elliot v The Queen [2011] NZCA 386.  As background, the High Court had earlier declined to issue a forfeiture order in respect of the part of an offender’s property on which he cultivated cannabis, and the entirety was forfeited.  The whole of the property was worth about $485,000, but the proceeds of crime has been held to be only approx $90,000.

The offender appealed, and the Court of Appeal held taking only part was permissible, knocking the decision back down to the High Court to reconsider just how much was enough.

It is an interesting judgment, hanging on a single phrase change in a single clause…adding the words “or any part of it” in relation to confiscating instruments of crime, and holding that “instrument of crime” is wide enough to mean land or a piece of land notwithstanding that the piece might be part of a large single land title.

The decision points the way to a remedy for some cases seen as unjust.  And, if nothing else, the decision should create more employment for property lawyers doing the resulting subdivisions.


About Ivan McIntosh

I am a partner of Carter Atmore Law...residing in City Road just off the busy thoroughfare of Symonds Street, Auckland, New Zealand....where we are specialist business & property development lawyers, working for both local and international clients. Proud husband to Joanna, and dad to two sons. Passionate rugby supporter. Email: Ph: 64 9 921 5026
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