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Introduction

Actually, this is a question from Australia, Auckland, Gisborne, and Wellington too. It's a common question of late, and we think that is because proceeds of crime litigants are becoming more in-tune with the law and news articles about the jurisdiction. If you are in Australia, you will likely see great coverage of the confiscation of criminal assets a few times per month in Melbourne and Sydney. Anyone else see the baby blue Lamborghini and Harley seized this month in NSW? (Baby blue....) 

Off on a side-tangent here, we do notice an increasing amount of serious crime defendants will proudly tell us (before we even have an opportunity to say it) "proceeds of crime is civil and I need a civil lawyer". Perhaps that basic awareness is a testament to Ms Matheson's brilliant social media advocacy over the past few years. Don't worry if you cannot find that online advocacy anymore, there's not too much of it online now because it can no longer be promoted on TikTok and is largely wiped. Someone once said, Your ability to speak freely is directly correlated to your significance: the blue powers that be might recognize Ms Matheson has some. 

So the question from Northland:
"How relevant is a proceeds of crime lawyer's prosecution background in proceeds of crime defence?"
An innocent question that requires our honest and professional opinion. One's experience in prosecution under the Criminal Proceeds (Recovery) Act 2009 (CPRA) at your local crown solicitor's firm is obviously going to be relevant in a general sense. However, the CPRA is one of the easiest pieces of legislation to claim under for the police and their lawyers, we also know this because the crown solicitors' office will send relatively junior prosecutors to act on these matters. (We love our colleagues, so that is not a disrespect to them, but it a reality we and our clients face in different regions of NZ). To put it succinctly and honestly, the legal skill, thought, and innovation required to prosecute CPRA matters is minimal. But the legal skill, thought, and innovation required to defend CPRA matters, and to save your assets, is considerable. You need exceptional barristers who can think laterally and who have equal amounts of book and street smarts. Respectfully, we don't tend to find 'street smarts' in senior lawyers of 20+ years who come from extensive and solely prosecution backgrounds. 

So, back to the question we were asked, if a barrister says they have 15 years prosecution experience (serious crime and proceeds of crime), and 2 years experience at the defence bar, do we think their experience is relevant and would we look at them as a potential proceeds defence barrister? On it's face, maybe, to give the standard lawyer answer, it depends. But we would need to see what substantive defence work they have done in proceeds and in other civil law areas. Criminal proceeds is civil litigation so we would want to see how they have tested their abilities in private defence. And to be clear, a good barrister is not always a barrister who wins, the devil is in the detail, the field is where the fight is, not in academic journals, social media, or their own marketing.

If there is no private civil defence experience then we might be a bit cautious. But again, it will always come back to the nature of your matter and what skill set is required. For example, if you have trusts and companies involved, you should look for civil barristers who have company and trust litigation experience. If there is underlying tax crime, we would advise a barrister with tax specialty. So, it depends.

At the end of the day, you need to have competent counsel who you have trust and confidence in. And 'fit' is important. If you can't have a drink with them at your local pub, why are they even on your team? 

CPDG

You are charged with committing significant criminal activity, could be meth or cannabis related with some unlawful firearms activity thrown in for good measure. We are just using this as an example, but it could be meth related, fraud related, illegal gambling, money laundering and participating in an organised criminal group, or health and safety breaches etc. When you are charged, you may also receive an application for restraining orders over property, or you may receive an order for ex parte (without notice) restraint of property. 

You are thrust into a situation where you are facing two proceedings. One is a criminal matter that proceeds under the Criminal Procedure Act 2011 and the Crimes Act 1961 and requires the skill of a criminal defence barrister. The other is a civil matter that proceeds under the Criminal Proceeds (Recovery) Act 2009 and the High Court Rules 2016, and requires the skill of a civil barrister.

There are also two different burdens of proof you are dealing with. Criminal is of course 'beyond reasonable doubt' - we expect a high standard of proof when a person's liberty is at risk. The civil burden of proof is not as widely known, but it is the 'balance of probabilities'. This standard of proof requires the High Court to consider what is more likely than not, so a likelihood in civil, versus beyond reasonable doubt in criminal. 

In the past, criminal barristers who specialised in criminal defence largely defended criminal proceeds matters. In the past few years, more civil specialist barristers have become involved in criminal proceeds defences. That is good and long overdue, because criminal proceeds has never been about criminal defence, it has always been about property.

What used to occur, in our opinion (and direct experience), was criminal barristers would largely advise clients (and young lawyers) as follows: 1) you consent to restraint, you cannot do anything until forfeiture, and 2) we put the proceeds matter on the backburner while we defend your criminal charges, and 3) the determination of the proceeds matter is reliant on how the criminal defence goes.

Respectfully, and in our professional opinion, the above 3 step approach above was and is, woeful advice. That advice proceeds on the premise that release of property is determined by the verdict of the jury in the criminal court or your plea in the criminal court. That is not correct and that advice has been given on a false premise. 

Now, if you are a private client and you cannot afford to have multiple proceedings on foot at once (and possibly multiple barristers), that is a different story. But do not think for one second that you cannot actively defend and progress your criminal proceeds matter at the same time as you are actively defending your criminal charges. 

Now, if you do not have meritorious arguments available to you in the proceeds matter at the restraining or forfeiture stage (after legal research is completed), that is a different story again also. While we are active and opportunistic litigators, if there is no real benefit to you taking steps (after a cost/benefit analysis is completed for you), then we would not advise active defence at a restraining stage.

We want the best for our clients, which is why we are active, constantly searching for ways we can 'snipe' property, or carve out interests in property for respondents and commonly interested parties. For this reason, our style of proceeds advocacy tends to suit higher value and complex matters.

Bottom line for us here is: if we are assisting you with your criminal proceeds matter and you have active related criminal charges on foot, then we must be kept abreast (informed) of the progress of your criminal matter and the theory of your defence. We need to have a good working relationship with your criminal barrister. Don't worry, we won't rack up fees, we just need to know what is happening at key points. Communication is paramount and in the client's best interests. 

All of the following text is subject to the phrase "provided you can afford it" and/or "if your litigation budget allows". 

The main expert required in a proceeds of crime defence is an accountant. If your matter is particularly complex, messy, and potentially shady, we will need a forensic accountant, and a very good one at that. 

We increasingly come across cases that require digital asset specialists and specialist accountants who have a 'very particular set of skills' when it comes to forex and coin trading. 

Millennial and Millenial-ish aged lawyers and experts seem to be preferred by prominent criminal proceeds litigants. These are litigants who are highly intelligent, energetic, and street smart. They also know what they want and expect from lawyers and experts, and we are grateful to many of these clients dropping in to see us as their 'first point of call'. 

There is also a defence need and client demand for forensic accountants who have an up to date understanding of national and international 'supply chains and transactions' when it comes to the trade in illicit substances. Now this is a tricky one to talk about, let alone put into writing without adding a tonne of context, which nobody has time to do on this blog post. One client said to us earlier this year: "we need accountants who understand trap houses and trap culture and trap language". Quite. We thought about this for awhile and came to agreement that a 'trap accountant' could actually be of enormous help to defendants/respondents/interested parties. Our view is we could multiply potential defences available to clients when we have lawyers and experts who understand 'the culture' of the illicit market (you know, they know their "8-ball" from their "watch"). What we mean by this is that unless a lawyer/expert understands the habits and culture of a particular category of proceeds client, then it is hard to pick holes in the forensic accountancy of the police: cash deposits in a bank account? (It's clearly meth money your Honour) Purchasing bitcoin at the same time as a package from Thailand arrives at customs? (You clearly imported that package of meth using bitcoin on the dark web). 

Police forensic accountancy always looks good and strong on it's face (and the formatting of the crown solicitor's pleadings is generally stylish - except for one region which shall remain unnamed (Napier.... shocking)). We cannot put into writing fully why we think a trap accountant is a missing jewel in the defence counsel crown, but trust us on this, we have seen a few examples in early 2024 of how and why a trap accountant could be of value. 

Other experts that could be of value in proceeds defence are related to:
Cultural experts 
Health & Safety at work experts 
Valuers
Engineers 
Legal experts in specific practice areas (International law, Relationship property etc)
Gambling 
Psychologists/Psychiatrists 
Gangs
Organised crime 
Technical specialists 

Experts that we think will become of increasing (or new) importance in the next 10 years are related to:
Tikanga
'Trap' accountants 
'Trap' linguists 
Trans-tasman and international crime 
Art (physical and digital)
Commercial sexual services 
Child welfare 
Gold, Silver, diamond, and fine jewelry experts 

Our first line of advice to clients is always: if you can afford it, please engage an accountant or a forensic accountant. If you have significant property at stake, and you decide to go into a forfeiture hearing without any accounting expertise to challenge the Commissioner's evidence, then you will need to accept the risk of doing so. Barristers excel in law, evidence, argument. We are terrible with maths and tax. 

For the previous blog post that was here, please see the bottom of our webpage called "Motorcycle Clubs and Gangs". 

​CPDG