Question from northland

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