FREQUENTLY ASKED QUESTIONS ABOUT CRIMINAL PROCEEDS
Since 2020, we have found proceeds of crime clients to be familiar with criminal procedure and criminal litigation, but unfamiliar with civil procedure and civil litigation. Criminal proceeds is civil litigation, it requires a barrister with civil specialty, and specific private law experience relating to the types of property that are sought to be forfeited and the types of litigants (companies, trusts, individuals) who need representation.
We are aware of some criminal barristers advising clients that nothing can be done at a restraining stage during the proceeding - this is not always correct. If you would like to see copies of redacted applications for release, and successful orders varying the restraining order to allow release of specific property, please email us at jess@jmathlaw.com for a free second opinion. As lawyers, we need to be doing the appropriate analysis of your legal position at a restraining stage, so we can ensure we are giving you the bare necessity of legal advice on your position, and providing you with options.
For further information as to how we approach proceeds of crime matters, check out our new website Criminal Proceeds Defence Group
FREQUENTLY ASKED QUESTIONS BY CLIENTS AND PROSPECTIVE CLIENTS
2021 to 2023 FAQs
How long is this case going to take? Depends. What steps do you want me to take? How much property is at risk? Are there any third parties or interested parties who need to make applications for exclusion/severance? I have cases that took 1 month, and cases that are still going at the 5 year mark. Good things, good defences, take time.
Do you represent family members and friends of respondents? Yes I can. Whether I will in any particular matter will be broadly based on a few things 1) the client meeting my terms, conditions, and fees, 2) the client has an interest in property that is currently restrained, and 3) my duties to each client in the proceeding will not be conflicted.
I did not commit any crime, and the cops never charged me, so why am I still facing this proceeds case? You don't need to be charged with a criminal offence for the Commissioner to commence proceedings against you. The Commissioner just needs to prove that you committed significant criminal activity to the civil standard. The civil standard is 'the balance of probabilities', often described as 'what is more likely than not?'.
Can you appeal proceeds cases to the Court of Appeal and Supreme Court? Of course.
How much all up is this proceeds case going to cost? Generally, I try and propose a fee that is proportionate to the value of property sought to be recovered by you and in proportion to the amount of work that is required by myself and any assistance, including experts, other barristers, and private detectives. If your criminal proceeds matter is large and/or complex with family homes included on the restraining order, then I will usually set out for you in easy-to-read table form a costing for each broad step of the proceeding. Given the diversity of issues in proceeds matters, defence/opposition can go from a very simple $5K + GST and disbursements to more than $500K + GST for more complex matters.
My wife and I took up your offer of a free second opinion in mid-2023 on advice I had received from my criminal KC that no property would be released at a restraining stage. I have now seen that you and a few other barristers have actually had property released and I can see homes, vehicles, cash, and other personal items have been released before the forfeiture hearing. The criminal KC said even though he could see you had actually had property released, he would not be trying. Why are some of the criminal barristers that my wife and I consult still denying this? Look, this is the type of question that I would respond to one-on-one confidentially. All that matters is that you have seen with your own eyes, real legal submissions, real legal applications, and real legal orders for release under the Criminal Proceeds Recovery Act 2009. These are examples from litigation teams and colleagues that I personally work with. It is your property and your choice as to who you want to fight for your property. Choose wisely.
I have a KC representing me at the moment on my meth import and supply charges and he is also repping me in the High Court for proceeds. How do I change to you for proceeds but keep my KC for the crim charges? First, contact me confidentially so I can check that I have capacity to assist you in the first place, and that you can meet my fees, terms, and conditions. If we are a match, I will advise you to terminate engagement with your barrister and solicitor on the record in the proceeds case. A lawyer has no propriety interest in their client and they cannot unreasonably and unduly influence you to stay with them. The process to terminate engagement should be smooth as it is in the client's best interests they can progress their litigation with a barrister of their choosing and in a timely manner. Myself and your new solicitor on the record will file what is called a Memorandum of Representation in the High Court on your behalf, and we will contact the Crown Solicitor in your region to get going! (We can often buy ourselves some time because we have only just been instructed etc... )
There seems to be generational differences between young and old counsel for proceeds matters lately? I find an older generation of barrister to be good for institutional knowledge always, but the best proceeds strategies come from fresher minds in my humble opinion.
My parents speak Mandarin mostly and they want a Chinese solicitor and litigator, have you handled Mandarin speakers before? Yes. When I first became a barrister sole, my practice survived on alot of work that came to me from the Chinese business community in Auckland. Many of my clients are Mandarin speakers. I like to have a client's family member present to assist with interpretation and translation, and for more formal occasions, I like to have an independent interpreter (if budget allows).
What is the biggest proceeds case you have advised on? A case where the value of property restrained was $20M.
Can I challenge restraining and forfeiture applications? Yes you can. One of the sad things about the last ten years, is that because many of the criminal barristers appeared to create a 'custom' of not challenging restraining applications, many former proceeds clients have come to me and told me they were never even advised of their options at the restraining stage.
Is challenging the police in proceeds matters expensive? Look, sometimes it can be, and sometimes it is not. I know that is not an enormously helpful answer, but how much time, stress, and cost a case is going to use up will depend largely on what the client wants to achieve and whether the cost of litigating the matter is proportional to the value of property at risk. I can charge anywhere from $5K to $250K plus for High Court litigation.
I have a criminal trial coming up, and I don't want to say anything in my proceeds case yet, is that okay? It depends. Sometimes saying nothing and opposing without proffering evidence is the way to go. Sometimes it is not. However, it is critical that if you do have parallel criminal proceedings at the same time, that I can communicate with your criminal barrister. I need to know what is going on in your criminal defence, and what the theory of their case is. Obviously, we will need to be 'on the same page' in terms of how the proceeds case fits with the criminal defence.
Can you get civil legal aid? I am not a legal aid barrister and I will not conduct Criminal Proceeds litigation on legal aid. The admin and regulatory hoops required is inconsistent with efficient litigation and test litigation in my opinion. If you need assistance with ideas on private funding, please contact me.
Have you ever been a police lawyer or acted for the crown? Hell no.
Are you friendly with the police like some of these ex-crown barristers? Generally, I am friendly and reasonable, unless it is in your best interests that I not be. I am not an ex-crown lawyer, and I have never worked in the legal public sector. I was raised in private civil and criminal defence. An 'eat what you kill market' is all I know. I think this might be why I have been reasonably good with proceeds.
What kind of property have you defended? Jewellery Cryptocurrency Real Estate Vehicles Luxury Vehicles Classic Cars Harley Davidson Motorbikes Farm vehicles like tractors Farms Boats Cash Company property Trust property
Do you act for gang members? Yes
Can I get name suppression in a criminal proceeds case? Theoretically, yes. We can always apply for interim and permanent name suppression. The threshold we would need to reach in order to maintain suppression is very high, and the only clients who I have managed to get permanent suppression for are children so far.
Do the police need to restrain property before they can forfeit it? No.
Are you scary to deal with as a proceeds of crime barrister? Yes, I am very scary to deal with. Boo!
Do I have to swear an affidavit to progress my proceeds case? Yes, 90% of the time you need to swear or affirm an affidavit to support your opposition or application for exclusion/severance. And yes, you will likely be cross examined on your affidavit, so please try and be consistent with your facts.
Can you act for me in my criminal matters at the same time as you act for me in my proceeds matter? Yes, theoretically I could, However I prefer a specialist criminal barrister acts for you in your criminal defence.
What underlying significant criminal activity have your clients been alleged to have committed? Manufacture of meth, supply/sale of meth/cannabis, firearms charges, tax evasion, GST fraud, illegal gambling etc.
Do you visit proceeds clients in prison? Yes. I am a bespoke kind of barrister. That means I tailor my service to each client. For some 'white collar' clients, prison is a new and scary thing, and I will visit them more often and call/AVL them alot. I notice this makes a huge difference to their wellbeing and provides some comfort to the prisoner's family members also.
Do you act for elderly people in proceeds matters? Yes I can.
Is a lawyer allowed to get my cash released for his fees? No. That is prohibited under the Act.
Can my children be joined to a proceeds matter? Yes, if the child has an interest in property that is sought to be restrained or sought to be forfeited.
How come there are times when proceeds lawyers say I need multiple barristers? When there are multiple respondents and interested parties, and there is the potential for the appearance of conflict.
An Asset Recovery Unit cop said they are going to help me if I give them some information, should I do this? Not without speaking to a lawyer first. More than one client has told me of a friendly detective who said they would help them..... and that same detective is usually the first person to give evidence against them.
Can you help me dispose of property so the cops cannot find it and they can't put another proceeds case against me? No. I provide legal advice. I do not assist you to prevent the application of the Act in a pre-emptory way; that would be an offence.
Can I sell property that is restrained? No, unless the restraint is varied to allow sale of the property. This would require negotiation with the Commissioner's counsel. However, properties have been sold in proceeds matters before the substantive hearing to allow the freeing up of an amount of cash for a client.
Can I self-represent in proceeds matters? Yes, theoretically you can. Companies cannot, they must have a solicitor and barrister acting for them in the High Court.
What barristers do you work with, when you assemble a team? Senior barristers from Auckland and Wellington. I am trying to assemble a 'new generation' team of barristers currently, so if you know of any energised and innovative barristers in this practice area, let me know!
I heard that you prefer to work with a forensic accountant on proceeds matters, why is that? If money allows, I prefer to get forensic and accountancy work done asap on a matter. I like to be well prepared with legal arguments and arguments that challenge the 'numbers' of the police.
My criminal barrister says it is not good to challenge the restraining stage in proceeds matters and is a waste of money Many barristers, including myself, who have civil specialist training, have been able to get good results for clients at the restraining stage. This is a jurisdiction where 'if you don't ask', 'you don't get'. I am not sure why anyone would put all their eggs in the one basket in this jurisdiction and simply wait for the forfeiture hearing where you can lose everything. Think about it.. that doesn't make sense. It is lazy advice in my opinion. The only time I would deliberately do nothing until forfeiture is when cost is a major issue for a client and they are not eligible for legal aid (so my strategy needs to be tempered) or after doing legal research or reviewing the facts of the case, it is clear it is meritless to challenge at an interim stage or make applications. The issue I have with some customs that have arisen in this practice area is that there have been merited cases to make applications or oppose at a restraining stage, and for some reason, no legal advice was provided to the client on these points.
I had another barrister representing me at forfeiture and I lost everything, can you help me with costs submissions? Yes, I would love to. Costs is an area of the case law that needs an injection from someone like me :)
Can someone else pay your litigation fees for me while my money is frozen? Yes. How you reimburse that person is your business.
Do you need a solicitor for this litigation? Yes. It is High Court civil litigation.
Can you represent me in my proceeds matter if I am from Christchurch? Yes. I can represent people who come from anywhere in NZ (and the world), provided the legal dispute or claim/defence is a matter that can be dealt with under NZ law.
I know you put up a big fight in these kinds of cases, but do you also do deals? Yes, from time to time. It is always best to avoid a substantive hearing if a reasonable and acceptable settlement with the Commissioner is possible.
I need some investigations done as part of my case - do you assist with this? Yes, I work with private detectives in New Zealand who are all ex-senior detectives from the NZ Police. They are all licensed private detectives.
Who are the police units that deal with proceeds of crime cases and do the investigations? According to the police website, the unit that manages proceeds of crime investigations is the Asset Recovery Unit (ARU). The ARU comes under the Financial Crime Group of the police. The ARU appears to work with the National Organised Crime Group and the Motorcycle Gang Unit. Motorcycle Gang Unit affidavits are generally an entertaining read.
Are you able to do proceeds of crime webinars and seminars for our 'club'? Firstly, I am extremely flattered to hear that groups that come to the attention of the police in the proceeds of crime jurisdiction, actually notice me, and listen to what I have to say. Thank you. Yes, I could provide a general overview of certain aspects of the Act. Watch this space, because I have had a few other individuals and groups ask for this type of service. Let me have a chat with some of my colleagues first.
I have a criminal proceeds barrister already but I like to pay you to join our team as a lead or assisting barrister, are you open to this? Yes of course. You are the client, it is your litigation. Barristers should not unreasonably ring fence litigation to their client's detriment.
2024
Our family trust is a respondent in a restraint case and our criminal defence barrister said to consent to the restraining orders over our family trust real estate, can we say yes to restraint and then change our mind? I don't provide legal advice on any matter until I am engaged formally - this protects you and protects my practice. However, generally speaking, a lawyer should be reviewing the pleadings filed at restraining level and providing you with advice on opposition to restraint, and any available applications you could make. You should receive those options, and any further advice if you ask further questions, and then make a decision as to what to do. You then instruct your lawyers accordingly. There would need to be a serious error or injustice for you to "consent" to restraining orders and then seek to appeal those "orders by consent" within the appellate timeframe or outside of time.
Why won't you act on legal aid on my criminal proceeds matter. I don't want another lawyer I want you and the lady at the registry said I have a right to my own choice of lawyer? In New Zealand, and under lawyers' conduct rules, a lawyer has a choice whether to agree to act on legal aid in any matter. However, even if a lawyer agrees to act on legal aid, the lawyer needs to be approved to act on legal aid by the Legal Services Commissioner.
The lawyer needs to go through quite a regulatory process even just to be approved to provide limited or supervised legal aid. I am an active and regular test litigator. I scavenge for opportunities within pieces of litigation and I need to be able to act quickly. I do not believe the legal aid regulatory framework suits my practice, my practice style, my work flow, and a small business in general. Therefore, I made the choice from 1 January 2024 that I will no longer provide legally aided services in any practice area. The level of red tape and regulation is not worth it.
When clients come to me and require legal aid, I will always attempt to find a legal aid barrister for them. This can take some time. I would allow up to 3 months, for some clients, to try and find a legal aid barrister.
As to your right of the lawyer of your choosing, yes you are correct, you can choose whichever lawyer you wish to represent you, subject to your agreement to their terms, conditions, and fees. Given I do not provide legally aided services, and given you need legal aid, you would be unable to meet my terms, conditions, and fees as private counsel. My initial retainers for proceeds matters can range from $5K to $100K up front depending on complexity and document review. There are some clients who need legal aid who will still attempt to engage me on the basis that they can meet my requested retainer soon, "but not yet" or "when I get a payment in". I am here to help you, not to create further financial burdens for you. Thus, if you are eligible for legal aid and need it, it is in your absolute best interests that you engage with a legal aid barrister.
What some clients do, who need a legal aid barrister, and find one, is they ask if I can remain on the matter as 'shadow counsel' or on a 'watching brief' on a pro bono basis. Subject to my capacity, I am always happy to remain on a matter on a 'watching brief' on a pro bono basis. :)
However, you must remember that if the matter is assigned to a legal aid barrister, that I am not in charge of that team. This is another reason why I do not like legally aided criminal proceeds litigation or legally aided litigation in general, the nature of the regulatory environment is inconsistent with creative, innovative, and test litigation in my opinion.