Alexander v Commissioner of Police
[2025] NZCA 362
•25 July 2025 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA122/2024 |
| BETWEEN | STEPHEN CRAIG ALEXANDER |
| AND | COMMISSIONER OF POLICE |
| Hearing: | 16 June 2025 |
Court: | Palmer, Dunningham and Grice JJ |
Counsel: | K E Hogan for Appellant |
Judgment: | 25 July 2025 at 4 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed as to costs. The costs order made in the High Court is set aside.
BThe appeal is otherwise dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Grice J)
Introduction
Mr Alexander appeals against assets forfeiture orders made in a judgment of the High Court on 2 June 2022.[1] The orders under the Criminal Proceeds (Recovery) Act 2009 (the CPRA) were made in relation to three items of real estate and $6,000 cash found at one of them.
[1]Commissioner of Police v Alexander [2022] NZHC 1287 [judgment under appeal].
Mr Alexander points to unfairness at the hearing because he was unrepresented, and says the evidence obtained from searches at his properties was unlawfully obtained and so inadmissible. In addition, he says that the forfeiture was unduly harsh or disproportionate. He seeks the return of the forfeited property and appeals the costs award made against him.
The Commissioner of Police (the Commissioner) opposes the appeal and maintains that the proceedings were fairly conducted and no error was made by the High Court.
Background
The criminal proceedings
On 14 February 2017, police executed a search warrant at Mr Alexander’s properties and discovered cannabis being cultivated in multiple grow rooms, as well as a large quantity of dried cannabis and $9,010 cash.[2] He was subsequently convicted and sentenced to six months’ community detention for charges of cultivating cannabis, possession of cannabis, and possession of a firearm without a licence.
[2]The background facts are adopted from the judgment under appeal, above n 1, as summarised by this Court in its decision granting an extension of time to appeal: Alexander v Commissioner of Police [2024] NZCA 510 at [4]–[15].
On 23 May 2018, police executed further search warrants at Mr Alexander’s properties while he was serving his sentence of community detention. The police had applied for the warrants after receiving information from a non-registered informant that a man was growing cannabis in a red shipping container at the back of Mr Alexander’s residence. They found a significant amount of cannabis at the properties, cannabis grow rooms in the shed complex, and an array of cultivation equipment.
Mr Alexander was charged with cultivating cannabis and possessing cannabis for supply. The Crown made an application under s 101 of the Criminal Procedure Act 2011 (CPA) for the search warrant evidence to be admissible in the proceedings. In the District Court, the Judge found the search warrant was unlawfully issued and the evidence was therefore unlawfully obtained.[3] However, she held the evidence was nonetheless admissible under s 30 of the Evidence Act 2006.
[3]Police v Alexander [2019] NZDC 12152.
On appeal, the High Court agreed with the District Court’s finding that the police did not have a proper evidential basis upon which to carry out the search.[4] The police should have been alert to the fact that the informant was potentially relating mere “rumour and gossip” about Mr Alexander growing cannabis.[5] However, the Court accepted that there was nothing to suggest that the police’s actions had been reckless, nor that there had been any bad faith.[6] Nevertheless, the appeal was allowed, and the criminal prosecution of Mr Alexander was dismissed under s 147 of the CPA in December 2019, after all evidence obtained by police from the search of the relevant properties was ruled inadmissible.
The civil forfeiture proceedings
[4]Alexander v Police [2019] NZHC 2920 [admissibility judgment].
[5]At [30].
[6]At [46]–[50].
The Commissioner brought the civil proceedings under the CPRA. The relevant property over which forfeiture orders were sought was identified as follows:[7]
(a)$6,000 cash seized from X Street, Winchester;
(b)X Street itself, being Mr Alexander’s residence;
(c)an adjoining Y property with a shed complex; and
(d)a third property, Z Street, Winchester.
[7]We have used letters to anonymise the addresses of the real estate, consistently with the judgment under appeal, above n 1, at [8].
In addition, the police sought to forfeit a car registered in the name of Mr Alexander’s son, Ethan Eyles, who was an interested party in the proceeding.[8] Mr Eyles successfully defended the claim against him.
[8]Judgment under appeal, above n 1, at [4].
Throughout the life of the proceeding up to the forfeiture hearing, two successive counsel who had been representing Mr Alexander in the civil proceedings withdrew. Ms Aickin, the next counsel assigned, withdrew the day before the High Court hearing.[9]
Procedural history
[9]Mr Alexander in his affidavit in support of the application for extension of time to file this appeal referred to only two lawyers having acted for him in the civil proceeding. This may be explained by the fact that Mr Brown, the first lawyer to appear for Mr Alexander in the forfeiture proceeding, had also appeared in the criminal proceeding and may not have been a legal aid assigned lawyer.
In view of the focus of Mr Alexander’s appeal on unfair process, we lay out the background leading to the hearing in April 2022 in some detail.
The procedural history is outlined in Detective Bruce’s affidavit opposing the appeal. The High Court proceedings were filed in December 2018 and without notice restraining orders were made on 21 December 2018. Mr Brown appeared as counsel for Mr Alexander at the first call of the on notice application for restraining orders held on 4 February 2019. The criminal proceedings were resolved in December 2019. Mr Brown withdrew as counsel in May 2020. Mr Lange then took over as counsel on 6 May 2020. Following the filing of an on notice application for forfeiture orders on 23 October 2020 a timetable direction was made on 15 February 2021 requiring the filing of notices of opposition and affidavits by 2 April 2021.[10] Time for filing was then extended until 18 June 2021, consequent upon Mr Lange’s withdrawal as counsel.[11]
[10]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 15 February 2021 (Minute of Dunningham J) at [3].
[11]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 30 April 2021 (Minute of Nation J).
Ms Aickin, who was subsequently assigned to act for Mr Alexander, advised the Court in May 2021 that she was available for the proposed hearing scheduled for 26/27 October 2021. She subsequently applied for an adjournment, which was granted on 21 September 2021, despite the Commissioner’s opposition.[12] The trial was then adjourned to a hearing to commence on 11 April 2022.[13] Mr Alexander was directed to file his affidavits by the 28 February 2022.[14] Osborne J, in a minute dated 10 February 2022, observed that there had been slippage in meeting the timetable.[15] Ms Aickin told the Judge she was encountering delays in contacting Mr Alexander in order to finalise his affidavit evidence.[16] The February 2022 minute noted that an adjournment of the proceeding would be “very unlikely unless absolutely necessary”.[17]
[12]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 21 September 2021 (Minute of Mander J).
[13]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 26 October 2021 (Minute of Nation J) at [2].
[14]At [3].
[15]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 10 February 2022 (Minute of Osborne J)
[16]At [6(b)].
[17]At [7].
On 31 March 2022, in a further minute, Osborne J confirmed that the hearing was set down for 11 April 2022 and recorded that Mr Alexander had faced some difficulties relating to his health.[18] Ms Aickin had indicated she was having difficulty in obtaining information from Mr Alexander to prepare his affidavit evidence, and sought to vacate the 11 April hearing.[19] Counsel for the Commissioner had pointed out that the matter was aged, and that the first adjournment had been made to accommodate the needs of Mr Alexander and his son.[20] A further telephone conference was set down for the next day.[21] The Judge directed that both Mr Alexander and his son, Mr Eyles, be present at the conference. A direction was also made that the affidavits be filed by 4.00 pm on 6 April 2022.
[18]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 31 March 2022 (Minute of Osborne J).
[19]At [5].
[20]At [9].
[21]At [13].
Following the telephone conference on 1 April 2022, the Judge refused the application for adjournment of the hearing, and indicated that the parties were expected to be ready to proceed on 11 April 2022.[22] The Judge recorded that Ms Aickin had advised at the conference that she would be meeting with Mr Alexander on the following Monday to draft his affidavit.[23] The Judge listed the evidence of the Commissioner that Mr Alexander would need to go through with Ms Aickin in order to answer the allegations.[24] At the conference, they had discussed the “critical importance” of Mr Alexander taking the time to fully work through what he would say in evidence before meeting with Ms Aickin for the drafting exercise.[25] The Judge confirmed directions for the filing and serving of Mr Alexander’s affidavits by 4 pm on 6 April 2022. The Judge allocated a further pre-trial conference for 7 April 2022.
[22]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 1 April 2022 (Minute of Osborne J).
[23]At [8].
[24]At [4].
[25]At [9].
By memorandum dated 6 April 2022, Ms Aickin advised the Court that she had been unable to get full instructions from Mr Alexander, as he had not prepared the relevant information as agreed. At the same time, settlement negotiations were continuing, and Ms Aickin again sought an adjournment of the fixture. Ms Aickin attached Mr Alexander’s medical records from a general practitioner log dated 5 April 2022. It contained what appears to be a log of his medical history and a request by Ms Aickin for information relevant to whether Mr Alexander was “able to participate in complex legal proceedings”.
Ms Aickin had signalled that she would seek leave to withdraw should the hearing proceed on 11 April 2022. The Judge confirmed the hearing would start on that date.[26] However, following an appearance from counsel on the day the hearing was scheduled to commence, the Judge allowed the parties until 12 April 2022 to enable counsel to continue negotiations.[27] Ms Aickin indicated that she remained without instructions and was granted leave to withdraw.[28]
[26]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 7 April 2022 (Minute of Osborne J).
[27]Commissioner of Police v Alexander HC Timaru CIV-2018-476-60, 11 April 2022 (Minute of Osborne J) [11 April 2022 minute].
[28]At [2].
Mr Alexander was self-represented at the hearing, which commenced on 12 April 2022. Mr Eyles was legally represented throughout the proceedings, including at the hearing.
The evidence
The Commissioner’s evidence was adduced through the affidavits of three deponents. The first was Detective Bruce, who provided evidence that the search warrants were executed in relation to the subject property, and outlined details of the subsequent investigation. Her evidence included Mr Alexander’s financial and related records.
The second deponent was Ms van der Pol, a financial analyst. She concluded that there was a significant disparity between Mr Alexander’s returned income and his level of cash spending. She calculated the quantum of Mr Alexander’s benefit from unlawful activity as being not less than $242,732.49. Her evidence was that Mr Alexander’s real properties were directly tainted by rates payments totalling $19,238.62 to the Timaru District Council. The real properties were also indirectly tainted by his mortgage payments, which were made with cash derived from unknown sources.
The third deponent was Detective Sergeant Power, who gave expert evidence in relation to the production and supply of controlled drugs, with particular reference to exhibits seized during the searches. Detective Sergeant Power’s view was that Mr Alexander was likely to have been smoking cannabis, as well as juicing cannabis and drinking it. However, he considered the seized cannabis which had been dried, packaged, and concealed was likely intended to be sold, supplied, or distributed.
Detective Bruce and Ms van der Pol concluded, having reviewed Mr Alexander’s bank statements and spoken to him, that there was evidence that he dealt in cars, car parts, and furniture. It was not disputed that many of the bigger sales accounted for funds paid to Mr Alexander, including the sale of a Ford Bronco, a deal involving coupes, a car purchase by Gos Cut concrete, a campervan and a Ford motor vehicle. However, Ms van der Pol’s analysis concluded that notwithstanding those legitimate sales, there was a significant disparity between Mr Alexander’s returned income and the level of his cash spending.
Mr Alexander cross-examined Detective Bruce and Ms van der Pol, but did not cross-examine Detective Sergeant Power, as Mr Alexander left the Court abruptly.
Mr Alexander did not file any affidavit evidence, nor did he call evidence at the hearing. The Judge, however, had before him the evidence given by Mr Alexander at a compulsory examination by the Commissioner and a document handed up by Mr Alexander before the hearing, as well as a memorandum filed shortly afterwards, to which we refer in more detail below.
The High Court decision
In the decision under appeal, the Judge accepted Detective Sergeant Power’s evidence that the quantities of cannabis located pointed to a commercial intention.[29] He also accepted Ms van der Pol’s evidence in relation to Mr Alexander’s financial circumstances, and concluded on the balance of probabilities that there was a disparity of $242,732.49 between Mr Alexander’s returned income and his level of cash spending.[30]
[29]Judgment under appeal, above n 1, at [78].
[30]At [79]–[80].
The Judge also found that the items of real property were tainted property.[31] The payment of rates had been funded through significant criminal activity, causing a direct tainting of property.[32] The Judge also found that Mr Alexander’s properties were indirectly tainted because he was only able to meet his mortgage payments due to the illegitimate source of funding of his day-to-day expenses.[33]
[31]At [87].
[32]At [86].
[33]At [88].
Osborne J made asset forfeiture orders over the three items of real property set out above at [8]. However, relief was granted pursuant to s 66 of the CPRA to Mr Eyles in relation to his motor vehicle.[34]
Statutory framework
[34]At [98].
Relevantly, the CPRA regime is designed to eliminate the chance for persons to profit from significant criminal activity, deter significant criminal activity, and reduce the continuation or expansion of criminal enterprise.[35] Civil restraining and forfeiture orders may be made against property which has been tainted by “significant criminal activity”, which is defined as:[36]
… an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.
[35]Criminal Proceeds (Recovery) Act 2009 [CPRA], s 3(2).
[36]Section 6(1).
Significant criminal activity can take place whether or not the person in question has been charged with, convicted, or acquitted of a criminal offence in association with the activity.[37]
[37]Section 6(2).
Generally, an asset forfeiture order must be made where the court is satisfied on the balance of probabilities that specific property is “tainted”.[38] “Tainted property” is defined under s 5 of the CPRA as property that has wholly or partly been acquired as a result of, or directly or indirectly derived from, significant criminal activity.
[38]Section 50(1).
A profit forfeiture order forfeits the “benefit” derived from significant criminal activity. The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that the respondent has unlawfully benefitted from significant criminal activity within the “relevant period of criminal activity”, and that the respondent has interests in the property.[39]
[39]Section 55(1).
The mandatory nature of assets and profit forfeiture orders is subject to an exception which enables the High Court to exclude certain property from a forfeiture order if it is satisfied that undue hardship is reasonably likely to be caused to the respondent.[40]
The appeal
[40]Sections 51 and 56.
An appeal against the making of an order under the CPRA is a civil appeal and is conducted by way of rehearing.[41] This Court must make an independent assessment of the evidence. No deference is required to the court at first instance beyond the customary caution that is appropriate where credibility is at issue, given that the first instance judge has seen and heard the witnesses.[42] The court on appeal has the responsibility of arriving at its own assessment of the merits of the case before it.[43]
[41]Court of Appeal (Civil) Rules 2005, r 47.
[42]Commissioner of Police v Jeffries [2014] NZCA 566 at [24].
[43]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
Mr Alexander’s notice of appeal against the High Court decision sets out the following grounds:
(a)The High Court did not have before it any evidence from the appellant, including evidence regarding his legitimate income.
(b)Pursuant to the Supreme Court decision in Marwood v Commissioner of Police,[44] some of the evidence relied on by the High Court may have been inadmissible, it having been ruled inadmissible in the criminal jurisdiction.
(c)The High Court omitted to consider Marwood and the inadmissibility of that evidence.
(d)The High Court omitted to consider whether forfeiture of all of the listed property was unduly harsh or disproportionate.
(e)It is relevant that the appellant self-represented in the High Court.
(f)The appeal is not moot, in that the forfeited property remains held by the state in a form recoverable by the appellant.
[44]Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260.
Ms Hogan, for Mr Alexander, marshalled her submissions under three main headings: procedural unfairness, which permeated all the other grounds; failure to assess the admissibility of the evidence obtained in the illegal search in light of Marwood; and undue hardship or disproportionality. We will address each of those issues in turn.
Issue 1: Was the High Court hearing procedurally unfair?
As outlined above, Mr Alexander’s application for an adjournment of the forfeiture hearing was declined by the Court. Ms Aickin had made that application before withdrawing as his third successive counsel on the eve of the hearing, due to lack of instructions. Ms Hogan says that this was not Mr Alexander’s choice. In addition, Ms Hogan suggests that Mr Alexander was vulnerable due to his cannabis intake for pain and other health issues. She says the Court knew this and should have taken it into account when considering the application for adjournment. Ms Aikin further suggests that the Court ought to have appointed an amicus curae or standby counsel for Mr Alexander.
Ms Hogan refers to the right to justice affirmed under s 27 of the New Zealand Bill of Rights Act 1990 (Bill of Rights), and the disadvantages Mr Alexander faced in being self-represented.[45]
Decision to refuse adjournment
[45]See R v Cumming [2006] 2 NZLR 597 (CA) at [44] and [45].
Ms Hogan says that only one relatively brief adjournment had been previously sought by Mr Alexander, and that there was no substantive prejudice to the Commissioner in granting the adjournment. As a result of Mr Alexander not having counsel for the hearing, the Commissioner’s case was not properly scrutinised, she submits.
The proceedings had been on foot since 2018, although the forfeiture applications were not filed until October 2020. Therefore, the delay over the first two years largely awaiting the resolution of the criminal proceedings, was not due to any fault of Mr Alexander. Nevertheless, an adjournment of the October 2021 hearing had been sought by Mr Alexander only a month before the hearing and was opposed by the Commissioner.
In addition, Mr Alexander was represented throughout the course of the proceedings until trial, and had many opportunities to gather and file the evidence required. There was no evidence that Mr Alexander wished to seek further representation following the withdrawal of Ms Aickin. Nothing relevant was filed by him in the High Court apart from the March 2021 notice of opposition, a memorandum entitled “Private” outlining his submissions which was handed to the Judge before the hearing, and a further memorandum entitled “Appearance for Ancillary Purposes” filed after the hearing contesting the Court’s jurisdiction relying on pseudo law. Mr Alexander did not provide any evidence in the High Court supporting the defences now suggested on appeal, nor has he sought to put any further evidence before this Court on appeal which might be relevant to them.
The minutes issued in the course of the proceedings indicate that the High Court was actively attempting to manage this matter to hearing. In addition to an adjournment, Mr Alexander and his counsel were given numerous extensions to dates for the filing of evidence, and there was ample time to prepare. The Judge was particularly hands-on in his management of the case in the weeks leading up to the hearing. The medical notes which were supplied to the Judge did not suggest there was any difficulty with Mr Alexander’s cognitive ability caused by cannabis consumption. Nor did counsel for Mr Alexander suggest that might be an issue for the Judge to consider. In addition, the Judge himself was able to observe and converse with Mr Alexander at two court conferences: one on 1 April 2022 and one on 7 April 2022, as well as during the trial. Relevantly, the medical note supplied to the Court merely recorded Mr Alexander’s disabilities without any suggestion from the general practitioner that the reported ailments would prevent him from participating in the hearing.
Ms Hogan also submits that it is relevant that the state has restrained Mr Alexander’s property for some three and a half years. In addition, she points to the issue of legal representation being largely outside Mr Alexander’s control. That submission is of little relevance given that Mr Alexander was legally aided most of the time that the civil proceedings were on foot. His response to Ms Aickin’s withdrawal as counsel was to file a document refusing to recognise the authority of the Court to hear the claim or of the Commissioner to bring it, based on pseudo legal claims. There is no evidence that Mr Alexander wished for counsel to represent him. In the context of the application to extend time to appeal, we accept he may have had some difficulty locating another legal aid lawyer to represent him. However, he was able to do so, and was granted an extension of time to file the appeal in view of that difficulty.
Despite the considerable leniency shown by the Court to Mr Alexander in allowing extensions of timetabling directions, and the efforts of both the Judge and Ms Aickin to encourage Mr Alexander to engage in the proceedings, he would not. The Judge was faced with a clear pattern, as the Commissioner describes it, of “non‑compliance, prevarication and delay”.
We do not accept Mr Alexander’s assertion that there would have been no prejudice to the Commissioner had the adjournment been granted. The Commissioner had been required to appear and provide memoranda for the numerous appearances caused by the delays and non-compliance of Mr Alexander. In addition, there had already been one adjournment sought at relatively short notice. The Commissioner had filed evidence and no doubt had witnesses available.
The appropriate use of scarce court resources is also a relevant consideration. The objective of the High Court Rules 2016 for the management of proceedings is to ensure the “just, speedy, and inexpensive determination of any proceeding”.[46] That is of course always subject to the requirement of fairness.
[46]High Court Rules 2016, r 1.2.
The Judge made no error in refusing an adjournment in the circumstances.
Accommodations for Mr Alexander as a self-represented litigant
As the Commissioner noted, a defendant has the right to be self-represented, and the court will be mindful of the need for a trial that is fair to the defendant. Judges have duties in that situation, including to: explain the trial process and the defendant’s rights; explain the rules of evidence to the extent necessary; guide the defendant, for instance, by articulating the defence or putting questions to witnesses if necessary to ensure fairness to each party; and put to a jury any available defence even if the defendant has not relied on it.[47]
[47]Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [50].
Beyond that, what is required of the court to meet its obligations to a self‑represented litigant will depend on the circumstances. Here, the Court proceeded as fairly as possible given Mr Alexander’s lack of engagement.
We have set out the procedural background in some detail above and do not repeat that here, save to emphasise that by the time of the hearing in April 2022, the Judge had repeatedly given Mr Alexander the opportunity to provide evidence and instruct counsel. When it was apparent he had not done so, the Judge turned his attention to ensuring that if Mr Alexander was self-represented, he would be aware of the process. In his minute dated 11 April 2022, the Judge recorded that when the parties had reported to the Court to begin the hearing that day, he had discussed the “nature of the hearing” with Mr Alexander, and emphasised to him that as he had not filed any evidence, it would be “important that he exercises his right of cross‑examination to challenge the Commissioner’s witnesses in relation to any factual matter with which he disagrees”.[48] The Judge also pointed out to Mr Alexander that when he made submissions, they were not evidence. According to the minute, Mr Alexander had indicated he understood that. He told the Judge he had prepared a written statement, the memorandum referred to above, copies of which were provided to the Judge and the other parties.
[48]11 April 2022 minute, above n 27, at [3].
The transcript of the trial indicates that Mr Alexander was aware of the relevant issues, putting appropriate questions to the witnesses, in particular concerning the sources of funds. In addition, the Judge assisted Mr Alexander from time to time, for instance by reframing questions to clarify what was sought. Mr Alexander cross‑examined each of the Commissioner’s witnesses, apart from Detective Sergeant Power. The trial continued after Mr Alexander’s abrupt exit. Mr Alexander was given a further opportunity to make submissions and to cross-examine Detective Sergeant Power after the hearing had completed. He instead filed a document indicating he did not oppose the application. The Judge described Mr Alexander’s response as follows:
[68] … on 28 April 2022 he filed a memorandum entitled “Appearance for Ancillary Purposes”, in which he recorded that he did not oppose the Commissioner’s claim but appeared in order to be heard. In the memorandum he set out a number of Latin maxims, a series of questions relating to statutory and common law provisions and a number of propositions challenging the Court’s jurisdiction.
[69] Sometime later he submitted a handwritten document headed “private” and concluding “without prejudice rights reserved”. It appears to reproduce contents of his earlier memorandum.
[70] In the circumstances, Mr Alexander not having made any request for the hearing to be reconvened or to make further submissions, I have proceeded to give this judgment in accordance with the evidence adduced and the submissions made.
We do not consider that there was any procedural unfairness to Mr Alexander in relation to the conduct of the hearing in the circumstances.
Appointment of counsel by the Court
We do not consider the Judge was obliged to appoint standby counsel for Mr Alexander, nor an amicus curiae to assist the Court. Ms Hogan did not differentiate between those options. She also referred to cases involving the appointment of contradictors. These roles are different. A standby counsel is sometimes appointed to act as an advocate for a self-representing defendant in serious criminal trials. The appointments are made in cases where, for instance, the defendant exhibits mental illness, disability, or is otherwise incompetent to act for themselves.[49] Quite apart from the fact that this was not a serious criminal case, there was nothing to suggest Mr Alexander was under a disability, nor was he otherwise incapable of representing himself.
[49]Fahey v R, above n 47, at [77].
An amicus curiae will ordinarily be a lawyer appointed by the Judge to assist them where there is a danger that an important and difficult point of law will require a determination without having been the focus of argument.[50] However, care should be taken not to encourage the role of an amicus to become a parallel de facto legal aid system.[51] The power to appoint an amicus is ultimately an exercise of the Judge’s discretion.[52] There is no reason to suggest the Judge needed assistance here. There was no important or difficult point of law involved.
[50]Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971 at [35].
[51]At [36].
[52]At [37].
The third option referred to in the cases relied upon by Ms Hogan is the appointment of a contradictor. Granting leave for a contradictor to appear in a proceeding is usually confined to cases where a public or special interest needs to be represented before the court. A contradictor usually applies for leave to appear and is not funded by the court. For instance, Ms Hogan referred to the case of Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal.[53]There, the New Zealand Law Society, on its application, was appointed to “[act] as contradictor in a case involving discipline in the legal profession [as] an extension of its function of assisting to administer that system”.[54] This is not a case where the appointment of a contradictor would have been appropriate.
[53]Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2021] NZHC 2990, citing Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [14].
[54]At [11].
We do not consider that the Judge was required to consider these options in the circumstances of this case.
Scrutiny of the Commissioner’s evidence
Ms Hogan does not suggest that the Judge did not have sufficient evidence on which to base his conclusions, but rather that the evidence was not properly scrutinised and there was a lack of evidence from Mr Alexander to contradict the Commissioner’s evidence. For instance, she points to the fact that the evidence from the Commissioner on the “legitimate v illegitimate” income “was far from unassailable”. She says that the Commissioner had adduced evidence that, in addition to receiving a Work and Income benefit, Mr Alexander sold car parts, and she contends that the evidence explains the other sources from which his income was derived.
As this Court noted in Zhou v Commissioner of Police, unlike the United Kingdom’s proceeds of crime legislation, under the New Zealand CPRA courts are not required to undertake an assessment of the value of the benefit received, in view of the statutory presumption as to the unlawful benefit obtained by those engaged in significant criminal activity.[55] It is presumed that the value of an unlawful benefit is the value stated in the Commissioner’s application.[56] However, the presumption is rebuttable. Here the Judge carefully went through the relevant evidence in order to reach his conclusion that the presumption was not rebutted. In particular, he referred to the evidence of Mr Alexander’s buying and selling activities. The Judge commented:[57]
[33] Detective Bruce and Ms van der Pol also concluded, having reviewed Mr Alexander’s bank statements and having spoken to him, that there is evidence that he deals in cars, car parts and furniture. Many of the bigger sales have been accounted for, including the sale of a Ford Bronco, a deal involving coupes, a car purchase by Gos Cut concrete, a campervan and a Ford motor vehicle. The Commissioner accepts this income as explained income. However, Ms van der Pol’s analysis concluded that notwithstanding those legitimate sales, there was a significant disparity between Mr Alexander’s returned income and the level of his cash spending. Over the relevant period Mr Alexander was in receipt of a Work and Income Benefit, receiving between $213 and $269 per week.
[34] Ms van der Pol calculated the quantum of Mr Alexander’s benefit from unlawful activity as being not less than $242,732.49. She identified the direct tainting of Mr Alexander’s real properties held by him as arising from the payment of $19,238.62 of rates to the Timaru District Council in cash from unknown sources.
[35] Ms van der Pol identified indirect tainting of Mr Alexander’s real properties through the fact Mr Alexander was able to meet his mortgage payments from his modest benefit income (from Work and Income) simply because his household income was boosted by a significant amount of cash from unknown sources.
[36] Because of the significant amount of cash available to bank and to pay expenses for the household outside of the bank accounts, Mr Alexander did not have to sell vehicles and other items to meet his cost of living but rather he was able to benefit from these items with overseas holidays and other purchases. In the absence of the cash he would have otherwise been unable to afford such luxuries from the residue of his Work and Income benefit.
[55]Zhou v Commissioner of Police [2023] NZCA 137 at [54].
[56]CPRA, s 53.
[57]Judgment under appeal, above n 1.
In addition, Mr Alexander had particularly targeted this issue in his cross‑examination. The Judge commented on some of that cross-examination as follows:
[40] Mr Alexander’s most relevant cross-examination of Detective Bruce was in relation to evidence the detective had given concerning Mr Alexander’s buying and selling of cars to make a profit. The witness had deposed that the approach of the Ministry of Social Development was that, if Mr Alexander had made a one-off sale of a car, the Ministry would not treat that as chargeable income. However the protracted buying and selling of cars for profit would be treated as chargeable income. Mr Alexander questioned Detective Bruce as to whether there was anything in her affidavit regarding tax evasion (tax evasion being one of the “significant criminal activities” identified in the Commissioner’s application). Detective Bruce referred to the relevant passage in her affidavit and expanded upon it. She explained that Mr Alexander’s benefit would have been reduced if he was “buying and selling so many cars” and furthermore that Mr Alexander would have been required to declare such income to the Inland Revenue Department for the assessment of tax. Detective Bruce explained that the Police did not believe Mr Alexander declared his income (with the result that tax was evaded).
Ms Hogan points to the decision in Commissioner of Police v Jobes as illustrating a “close examination” by the Judge of the Commissioner’s evidence, resulting in the unlawful benefit figure being rebutted.[58] In that case, the Commissioner claimed that Mr and Ms Jobes had unlawfully benefited by $1,083,600 from the cultivation and sale of cannabis.[59] However, the Jobeses had offered evidence in rebuttal, and in particular evidence going towards the level of cultivation and likely yield given the crop cycles involved, as well as evidence of personal consumption. Campbell J emphasised the need for “[g]enuine evidence concerning the actual benefit obtained” in order for the presumption to be rebutted.[60] Referring to Zhou, he said:
[59] … The Court contrasted that with a mere “critique of the Commissioner’s methodology”.[61] The Court then addressed Mr Zhou’s arguments as to why factual assumptions underlying the Commissioner’s calculation were unsound. While the Court rejected each of the arguments, its rejection was based on a consideration of the evidence.[62]
[58]Commissioner of Police v Jobes [2024] NZHC 1163.
[59]At [2].
[60]At [59], citing Zhou v Commissioner of Police, above n 55, at [30].
[61]Zhou v Commissioner of Police, above n 55, at [30].
[62]At [32]–[50].
It is also relevant that the Judge in Jobes commented that there was no abuse of process (or res judicata) in the Commissioner bringing the civil claim, in view of the fact Mr Jobes had not been charged with supply but had only pleaded guilty to cultivation.[63] The Judge also commented in relation to allegations of overreach by the Commissioner that:
[73] This was not a case of executive overreach. The Commissioner’s stated value of $1,038,600 was not arbitrary. There was a reasonable basis for it. The respondents then availed themselves of the opportunity of proving a different value.
[63]Commissioner of Police vJobes, above n 58, at [53]–[54].
In this case, despite ample opportunity, Mr Alexander offered no rebuttal evidence. As the Commissioner pointed out, no evidence has been proffered, even on appeal, which might be evidence relevant to the issue. The Commissioner submitted that the assessment was not arbitrary — there was a reasonable basis for it.
The Judge, having reviewed the evidence he had before him against the statutory tests, was satisfied that the presumed unlawful benefit of $242,732.49 was supported by the evidence and the presumption had not been rebutted.[64]
[64]Judgment under appeal, above n 1, at [85].
In relation to the direct tainting of the real estate, the Judge concluded:[65]
[86] Ms van der Pol’s evidence established that Mr Alexander paid rates of $19,238.62 in relation to the properties. I am satisfied that the source of the funds used for payment lay in significant criminal activity. It has been recognised in relation to mortgage payments that it is not only money payments that reduce the principal mortgage that can give rise to tainted property — payment of interest only on a mortgage which preserves the existing equity in the mortgaged property can also result in the property becoming tainted. The payment of rates is analogous to the payment of interest as it preserves the equity in the property in the sense that the local authority would otherwise become entitled to sell the property to recover the unpaid rates.
[87] I therefore find that X Street, Z Street and the Y property with the shed complex are tainted property.
[65]Footnotes omitted.
The Judge went on to find that the properties were also indirectly tainted by significant criminal activity. His Honour concluded that Mr Alexander was able to meet his mortgage payments “only because he was using illegitimately obtained funds for day-to-day living expenses and other extraordinary expenses”.[66]
[66]At [88].
Given the clear evidence of direct tainting by the payment from funds which had been illegitimately sourced, the Judge had little option other than to find that the tainted property should be forfeited given the wording of the legislation,[67] regardless of the level of the tainting. It was not open to the Judge, having been satisfied that the property was tainted, to only order the forfeiture of a percentage of the value of the property proportionate to the level of tainting, as suggested by Ms Hogan. However, it is open to an offender to claim the forfeiture of all the property was unduly harsh or disproportionate. In that context the level of the tainting may be relevant.
[67]CPRA, s 50(1).
The appeal fails on this ground.
Issue 2: Was evidence relied on by the High Court inadmissible in the civil jurisdiction?
The second issue on appeal is the ability of the Commissioner to rely on evidence which had been excluded in the initial criminal prosecution against Mr Alexander, on the basis that it was improperly obtained by police in an unlawful search of his property.
The relevant evidence was described in the 2019 admissibility judgment in the criminal proceeding as follows:[68]
[6] On 14 May 2018, a Police constable from Timaru applied for the issue of two search warrants, under s 6 Search and Surveillance Act 2012, authorising searches of [X Street] and [Z Street], Winchester. The application was made on the basis the constable had reasonable grounds to suspect that the offences of cultivating cannabis, possession of cannabis plant for supply, and selling, supplying or otherwise dealing in cannabis plant were being committed. Search warrants were issued.
[7] The warrants were executed on 23 May 2018. Mr Alexander was at home at the time. He told one of the constables that he had a grow room in his house and some “pot” in his room. He said the cannabis was for his personal use and he did not sell it. The Police found cannabis stored in jars in his bedroom, cannabis plant on trays on top of a wardrobe in the master bedroom. There was cannabis head in a number of containers and $6,000 in cash in a cabinet drawer in the lounge/dining room. Further cannabis head was found in a Mitre 10 bucket buried beneath the entry to a container at the rear of the property. Further cannabis was found in two pails located behind old car doors which had been stacked up near to the container and in another bucket buried in the front garden. There was cannabis in a glass jar at the rear of a car parked at the address. In containers and sheds on the property, there were beds which had been used to grow cannabis plants. In one area, there were 14 cannabis plants and eight seedlings, and in another area 46 plants of varying heights. The Police described the areas as having been set up as typical grow areas containing silver lining on the walls, lighting and heating, and fans circulating air.
[8] The dried cannabis head in buckets was packaged in plastic bags, most of which weighed approximately 460 g, a pound in old measurements. The total amount of dried cannabis head weighed 6.27 kg. The Police contend the size and nature of the plants indicated they were being grown in a “cycle”, ensuring that, once a crop was harvested, there were other plants coming through at different stages to maintain regular harvests.
[9] On 23 May 2018, Mr Alexander was arrested and charged with cultivation of cannabis and having in his possession a class C controlled drug, namely cannabis plant, for the purpose of supply, offences under ss 9(1) and 6(1)(f) Misuse of Drugs Act 1975.
[68]Admissibility judgment, above n 4.
Ms Hogan submits that the Supreme Court decision of Marwood was not taken into account by the High Court in this case.[69] Marwood considered whether the results of an unlawful police search could be relied upon as evidence in the Commissioner’s application for profit forfeiture orders. The Court unanimously held that courts have the jurisdiction in civil trials to exclude evidence obtained by police in violation of the Bill of Rights.
[69]Marwood v Commissioner of Police, above n 44.
The majority of the Supreme Court observed that the decision to exclude is “not discretionary in nature”, but rather involves “an evaluative assessment” as to the appropriateness of the remedy proposed.[70] The considerations which preclude a criminal conviction, such as the unlawfulness of a search, will not necessarily exclude forfeiture, and forfeiture is not dependent upon a conviction.[71] However, the majority clarified that evidence which has been excluded in criminal proceedings will not always be admissible under the CPRA. It must be considered whether further vindication of the rights breach through exclusion of the evidence in the CPRA proceeding is warranted.[72]
[70]At [46].
[71]At [50].
[72]At [51].
The majority further noted that it would have been open for the respondent to have sought compensation for the unlawful search — a claim which could be brought and heard at the same time as the Commissioner’s proceedings.[73] Any entitlement to compensation could be offset against any forfeiture to the Commissioner.[74] The majority held that the “real question is whether relief by way of exclusion of evidence is proportionate to the breach of rights”.[75]
[73]At [48].
[74]At [49].
[75]At [50].
Ms Hogan submits that in determining whether the inadmissible evidence should be excluded from the civil proceeding, the majority of the Supreme Court considered the following factors:
(a)the availability of compensation for Bill of Rights breaches;
(b)the low seriousness of the breach;
(c)the lack of bad faith by police; and
(d)the previous vindication of the breach via the inadmissibility ruling in the criminal jurisdiction.
The Commissioner submits that Marwood does not assist Mr Alexander’s case for two reasons. The first is that the police had executed a search warrant and charged Mr Alexander with cultivation and possession of cannabis in 2017. A subsequent warrant was executed in 2018 while he was serving his sentence for the earlier offending. It was this second warrant that was later challenged, and the evidence obtained under it was ruled inadmissible. Therefore, regardless of the admissibility of the evidence obtained in consequence of the second search, the Court had a sufficient basis to determine that Mr Alexander’s property was tainted. That may be the case, although we note that the Judge did rely on the 2018 search evidence, saying that the quantities of cannabis located in that search “clearly on their face” pointed to “a commercial intention”.[76]
[76]Judgment under appeal, above n 1, at [78].
The second reason is that Marwood requires consideration of the factual circumstances of an individual case.[77] In this case, the High Court specifically noted that there was no recklessness, bad faith, or egregious conduct by police — only a degree of carelessness. Therefore, the Commissioner submits that Mr Alexander’s rights were adequately vindicated through the exclusion of the improperly obtained evidence from the District Court at trial, leading to the dismissal of the charges against him. Any additional remedy would result in an unwarranted windfall contrary to the purposes of the civil forfeiture regime.
[77]Marwood v Commissioner of Police, above n 44, at [62].
We agree with the Commissioner. The extent of the breach was relatively low (reliance on an assertion by an informant), there was no bad faith by police, and Mr Alexander’s rights have already been vindicated to the extent that the charges against him were dropped. Relevantly, Nation J commented in ruling the evidence inadmissible that it was “unfortunate” that Mr Alexander would not be “held to account for what would have been serious offending in contempt of what seems to have been a merciful sentence for his earlier offending”.[78] In the circumstances, it is open to Mr Alexander to seek Bill of Rights damages in separate proceedings, but there was no material before the Court on that issue.
[78]Admissibility judgment, above n 4, at [68].
Osborne J referred to the challenge to the search warrant and the inadmissibility of the evidence obtained in the search in the context of the criminal proceeding.[79] He admitted the evidence obtained in the search without any evaluation.[80] We do not consider the Judge was required to undertake an analysis to determine the admissibility of the evidence, in the absence of challenge to the evidence by Mr Alexander, his counsel (up until trial), or by Mr Eyles and his lawyer who appeared at the trial.
[79]Judgment under appeal, above n 1, at [32].
[80]At [10].
We have reached the view that the evidence was admissible in the circumstances, therefore even if the Judge should have undertaken an evaluation of the evidence’s admissibility, he made no material error in admitting it.
For the reasons set out we conclude that the Judge made no error in admitting the evidence.
Issue 3: Was forfeiture of all the listed property unduly harsh or disproportionate?
In relation to the final issue on appeal, Ms Hogan submits that the High Court failed to consider whether forfeiture of all of the property was unduly harsh or disproportionate. While acknowledging that no application or evidence was advanced by Mr Alexander in support, she says that is explained by the procedural unfairness that he experienced.
Even when assessed solely on the Commissioner’s evidence, Ms Hogan submits forfeiture of all of the property was unduly harsh. She says there is a gross discrepancy between the stated unlawful benefit of approximately $250,000, the stated taint of approximately $20,000, and the value of the forfeited property, being some $606,000.
Section 51 of the CPRA requires that an application be made by the respondent if the Court is to determine that certain property should be excluded from an assets forfeiture order on the basis of undue hardship. No such application was made. The notice of opposition (dated 1 March 2021) does not raise the issue, nor was it apparently formally raised by Mr Alexander or his lawyer at any stage. As the Commissioner points out, Mr Alexander’s only opposition following the hearing was to protest the Court’s jurisdiction. There is no other avenue by which to consider the fairness of making a forfeiture order, given that it is mandatory to do so under s 50(1) once it has been established that the relevant property is tainted. The Commissioner also points out that Mr Alexander’s son was able to successfully defend the application on the basis of undue hardship at the hearing. Mr Eyles engaged with the proceeding and filed evidence.
Hardship deriving from the forfeiture order must be undue, or more than ordinary. The Commissioner notes that the definition of tainted property means that even if only part of the property has been acquired (directly or indirectly) as a result of significant criminal activity, the whole of the property is nevertheless tainted. Disproportionality is inherently built into the scheme. The Commissioner submits it is a punitive regime, citing Zhou.
However, as Ms Hogan submits, there is currently divergent authority on whether the regime under the CPRA is intended to be punitive. While the Court of Appeal in Zhou held that it is a penal scheme,[81] it did not hear argument on the Bill of Rights. In contrast the High Court decision in Commissioner of Police v Cheng concluded that the regime was not meant to be punitive,[82] particularly in light of the right to be free from double punishment under the Bill of Rights.[83] Ms Hogan also refers to the position in the United Kingdom, where it has been observed that the civil confiscation process is not aimed at punishment.[84] She submits that civil forfeiture orders that go beyond stripping unlawfully obtained benefits are ultra vires and punitive, and so infringe ss 9 and 26 of the Bill of Rights.
[81]Zhou v Commissioner of Police, above n 55, at [60]–[61].
[82]Commissioner of Police v Cheng [2023] NZHC 606 at [50].
[83]New Zealand Bill of Rights Act 1990, s 26(2).
[84]See Boyle Transport (Northern Ireland Ltd) Ltd v R [2016] EWCA Crim 19; and R v Waya [2012] UKSC 51, [2013] 1 AC 294.
The Supreme Court has yet to consider the question of whether or the extent to which the Bill of Rights informs undue hardship for the purposes of s 51.[85] This is not the case for further consideration of that issue by this Court. Obviously, given Mr Alexander was self-represented, the matter was not considered at first instance. We do not have any up-to-date evidence going to undue hardship, as opposed to the hardship generally suffered by anyone forfeiting property. In any event, the High Court was precluded from inquiring into the issue by the provisions of s 51, which required the respondent to have made an application in that regard.
[85]See McFarland v Commissioner of Police [2024] NZSC 84 at [6].
For the reasons given above, the Judge made no error in not considering whether the forfeiture was unduly harsh or disproportionate.
Should the Court have awarded costs against Mr Alexander?
Ms Hogan advanced a number of reasons as to why costs should not have been awarded. The Commissioner neither sought costs in the High Court, nor opposes the appeal against costs.
The Judge did not consider the costs application by reference to the fact that Mr Alexander was legally aided. Section 45 of the Legal Services Act 2011 precludes a costs award in this case. It provides that no order for costs may be made against an aided person unless the court is satisfied there are “exceptional circumstances”.[86]
[86]Legal Services Act 2011, s 45(2).
The Judge made an error in his costs award by failing to consider the fact that Mr Alexander was legally aided. We therefore allow the appeal in relation to costs and set aside the costs award.
As no “exceptional circumstances” in terms of s 45 are advanced by the Commissioner in this Court, we make no order for costs.
Result
The appeal is allowed as to costs. The costs order made in the High Court is set aside.
The appeal is otherwise dismissed.
Solicitors:
Crown Solicitor, Timaru for Respondent
2
14
0