BY CHRIS FOWLIE
The Criminal Proceeds (Recovery) Bill is a significant erosion of civil liberties and will almost certainly see the innocent punished
The bill has not yet come back from the Law and Order Committee and so could still be significantly amended. It proposes to seize people’s assets even though they have not been convicted of any crime. It violates fundamental norms of justice, such as the presumption of innocence and the prohibition on double jeopardy, and could also breach the New Zealand Bill of Rights Act.
If passed, the bill would allow both conviction-based forfeiture and confiscation which requires no conviction for property that is said to be the proceeds of crime or unlawfully derived income. The same person may be the subject of criminal prosecution and confiscation action under the civil process. Those who are acquitted can still have their assets seized for unproved and unspecified
crimes. They would not even have to be prosecuted to have their assets seized. Furthermore, if they are prosecuted they could not use their disputed assets to fund their defence.
In a departure from the accepted norms of natural justice, people who are targeted must prove themselves innocent. The bill allows the government to use an absurdly low standard of proof – “reasonable cause to believe” – to seize assets. With insufficient evidence for a conviction, police may approach a High Court judge with a lower standard of proof to seize assets. Suspects may not even know they face action and may have no opportunity to defend themselves.
The bill specifies that “the court may not allow legal expenses to be paid out of the restrained property”, denying suspects the fundamental right to legal representation. The retrospective provisions in the Bill made it even more contemptible.
The Proceeds of Crime Act 1991
Under the existing Proceeds of Crime Act 1991, which the new bill would replace, almost the entire total amount confiscated has been from cannabis growers.
To seize property the police need only show that the property has been “tainted” – they don’t need to prove it was paid for using drug incomes. Furthermore, they only need show a civil burden of proof, i.e. a “balance of probabilities” rather than the usual proof of “beyond all reasonable
doubt”. Not only is the new bill repugnant, the Proceeds of Crime Act 1991 should also be repealed.
Maori are at particular risk of having their ancestral lands taken by the Crown – for a second time. Many Iwi and Hapu have only marginal lands left. Faced with little prospect of farming this land, little hope of legitimate employment and ongoing land rates to pay, some have chosen to use the opportunity cannabis prohibition has presented them with. Money may not grow on trees, but it does grow on cannabis plants that are almost worth their weight in gold. If they are caught Maori face not only a harsher average sentence but may have their ancestral lands confiscated under the Proceeds of Crimes Act, despite the obvious fact that the land could not have been paid
for using illicit drug money.
Asset forfeiture laws encourage corruption. There have been several reports of police impropriety in attempting to seize property including planting evidence and lying under oath. In one of the biggest sums awarded against police, in August 1999 Judge Michael Lance awarded Great Barrier Island man Colin Moore $54,000 towards the $100,000 he spent defending charges of cultivating cannabis and fighting to keep the family farm. Police did not photograph the evidence or give Moore the chance to look at the plants. They also left out evidence during the trial. The Police helicopter was allegedly spotted delivering a load of cannabis to Mr Moore’s farm. The farm had
been in the family for generations and could not have been paid for with drug money.
The Judge was scathing of the Proceeds of Crime Act. “It’s an invasion of personal privacy,” said Lance. “The legislation needs some careful attention.” Even the rather conservative New Zealand
Herald opposed the new bill (27/11/04):
“It’s classically opinion-poll driven legislation that seeks to wipe out the rights of people who legitimately own property by seizing that property on what’s often no more than a suspicion. The onus is then on the owner of that property to prove otherwise. It can be very hard to prove income was legally derived without documented evidence.”
The government believes other countries have been more successful in seizing assets. However, in seeking to ‘get tough’ on drugs, they are trampling on all our rights and the principles of natural justice.
(NORML News Summer 2008. Next issue: in Pt.3 of this series Auckland lawyer Rob Weir reports on the progress of the bill and any changes made by the Law and Order Select Committee.)