COLLINS EZEALA AND NEW ZEALAND POLICE
[2024] NZHC 2955
•11 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1765
[2024] NZHC 2955
UNDER the Summary Proceedings Act 1957 IN THE MATTER
of an application for leave to appeal under s 115 of the Act
BETWEEN
COLLINS EZEALA
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 October 2024 Appearances:
Self-represented Applicant
D Houghton and N Narayanan for the Respondent
Judgment:
11 October 2024
JUDGMENT OF GORDON J
This judgment was delivered by me
on 11 October 2024 at 10 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Meredith Connell, Auckland Copy to: The Applicant
EZEALA v NEW ZEALAND POLICE [2024] NZHC 2955 [11 October 2024]
[1] The applicant, Collins Ezeala, seeks leave to appeal out of time against an order that cash seized from his car be forfeited to the Crown. The order that is the subject of the appeal is contained in Judge G M Harrison’s judgment dated 11 August 20151 and further amended by Judge Harrison’s judgment dated 21 February 20172 (forfeiture order).
[2] Mr Ezeala is self-represented. He is currently based in Nigeria, having been deported from New Zealand in March 2017. He brings the application on five grounds:
(a)ownership of the forfeited cash was reserved, not denied;
(b)the illegality principle should have acted to prevent the forfeiture order as there was no charge of selling methamphetamine and the cash was not acquired through illegal activities;
(c)new mitigating and humanitarian circumstances have emerged which justify the immediate release of the forfeited cash;
(d)Judge Harrison in effect accepted that Mr Ezeala was entitled to the full amount seized if he had claimed it at the outset; and
(e)the initial forfeiture order did not meet the criteria under the Summary Proceedings Act 1957 (SPA).
[3] The application for leave to appeal was heard separately from and ahead of the appeal itself. Mr Ezeala appeared by virtual meeting room (VMR) in support of the application. The Police oppose.
Procedural background
[4] In 2010 Mr Ezeala was arrested and charged with importing methamphetamine and possessing methamphetamine for supply. Upon arrest, Mr Ezeala, his car and his
1 New Zealand Police v Ezeala [2015] NZDC 15385 [2015 judgment].
2 New Zealand Police v Ezeala [2017] NZDC 3594 [2017 judgment].
house were searched. Various quantities of cash were seized by the Police during the course of those searches.
[5] Following a jury trial in 2012, Mr Ezeala was found guilty on both charges and he was sentenced to 11 years’ imprisonment. Ms Houghton, counsel for the Police, accepts that no order for forfeiture of seized cash was sought under s 32 of the Misuse of Drugs Act 1975 at sentencing.
[6] In 2014, the Police applied for an order forfeiting the seized cash to the Crown under s 199 of the SPA. That section (now repealed) provided as follows:
199 Disposal of things seized
(1)Where any constable seizes any thing under section 198, it shall be retained under the custody of a constable, except while it is being used in evidence or is in the custody of any Court, until it is disposed of under this section.
(2)If the thing seized is—
(a)any forged bank note, or any special paper, revenue paper, frame, mould, instrument, plate, wood, stone, material or other thing, of which the possession without lawful excuse is an offence; or
(b)any counterfeit coin, or any instrument, machine, tool, or other thing used or intended to be used for the purpose of coining, of which the possession with knowledge of its nature and without lawful excuse is an offence—
an application shall be made by a constable, or by the prosecutor or informant, to the Court by which any charge relating to that thing is determined, or to a District Court Judge, for an order that it be forfeited, defaced, or destroyed; and on any such application the Court or the District Court Judge may make an order accordingly.
(3)If the thing seized is a thing to which subsection (2) does not apply, the following provisions shall apply:
(a)in any proceedings for an offence relating to the thing, the Court may order, either at the trial or hearing or on a subsequent application, that the thing be delivered to the person appearing to the Court to be entitled to it, or that it be otherwise disposed of in such manner as the Court thinks fit:
(b)any constable may at any time, unless an order has been made under paragraph (a), return the thing to the person from whom it was seized, or apply to a District Court Judge for an order as to its disposal; and on any such application the District
Court Judge may make any order that a Court may make under paragraph (a):
…
[7] On 11 August 2015, Judge Harrison heard the application. He was of the view that it could not be said the cash seized by the Police was acquired from Mr Ezeala’s drug offending as there was no charge for selling methamphetamine and no order under s 32 of the Misuse of Drugs Act.3
[8] The Court was provided with a letter dated 1 April 2014 from Mr Ezeala’s counsel at the time to Detective Sergeant Baber which stated:4
It appears there may be some confusion in this matter. Your letter refers to money that was found in a car on Mr Ezeale’s [sic] arrest; I believe it was in the glovebox. As your letter states, my client has made no claim to that money. He still makes no claim to that money. Instead, the instructions I have received from my client are that a significant sum of money, approximately $13,000, was in a bag of his and his money he maintains he brought with him to New Zealand. It may have been taken from him on arrest or even from his home at some stage. It is this money that my client seeks to have returned to him.
[9] As Mr Ezeala only made a claim to the cash seized from his house amounting to $14,000, Judge Harrison ordered that cash be returned to him under s 199(3)(b) of the SPA. The $18,530 seized from Mr Ezeala’s car, which he did not seek to be returned to him, was forfeited to the Crown pursuant to s 199(3)(a) (“otherwise disposed of in a manner as the Court thinks fit”).
[10]Judge Harrison concluded his decision as follows:
[28] The orders I have made effectively dispose of this proceeding, but I reserve leave for either party to apply further should that prove necessary.
[11] Subsequent to the delivery of that decision, the Police discovered that the information put before Judge Harrison relating to the amount of cash seized was incorrect. An affidavit filed by Detective Sergeant Baber sworn on 7 July 2016 records that actual amounts of cash seized by the Police were as follows:
(a)$32,530 from the car; and
3 2015 judgment, above n 1, at [7].
4 At [10].
(b) $13,990 from the house; and (c)
$1,528.80 from Mr Ezeala’s person (at time of arrest and at other times).
[12]
The
Police considered, consistent with Judge Harrison’s decision, that a total
of $32,530, being cash seized from the car, was liable for forfeiture to the Crown. Cash amounts of $14,000 and $1,528.80 were returned to Mr Ezeala.
[13] On 21 December 2016, Mr Ezeala filed an application in the District Court seeking the “full and final return” of the funds seized, namely $32,530, on the grounds that there was a change of circumstance and he was now claiming ownership of the full amount. The application was heard before Judge Harrison, resulting in an oral judgment delivered on 21 February 2017 quoted here in its entirety:5
[1] On the basis of the application by the police, my original order forfeiting the sum of $18,530 to the Crown is amended to the figure of
$32,530.
[2] Other than that, I do not believe any other order or direction is required.
[14] Later that year, Mr Ezeala appealed the forfeiture order to the High Court. On 1 September 2017, the appeal was deemed abandoned as a consequence of Mr Ezeala’s non-payment of security for costs.
[15] On 19 August 2024 Mr Ezeala filed the present application seeking leave to appeal the forfeiture order to the High Court.
Legal principles
[16] The forfeiture order was made under the SPA, which continues to apply to these proceedings despite the operative sections having been repealed.6 The SPA conferred a general right of appeal that must be brought within 28 days of the order
5 2017 judgment, above n 2.
6 Criminal Procedure Act 2011, s 397(2).
being made.7 Any Judge of the High Court may, on application of the appellant, extend the time prescribed for bringing an appeal.8
[17]The High Court Rules 2016 provide at r 20.4:
20.4 Time for appeal if there is right of appeal
(1)This rule applies if a party has a right of appeal to the court.
(2)An appeal must be brought—
(a)within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or
(b)in every other case, within 20 working days after the decision appealed against is given.
(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—
(a)permits the extension; or
(b)does not limit the time prescribed for bringing the appeal.
…
[18] In this case, given the appeal period was specified in the SPA, that appeal period of 28 days applies.
[19] The Supreme Court has held that the ultimate question when considering the exercise of discretion to extend time for leave to appeal is what the interests of justice require.9 The Court approved the approach of the Court of Appeal in My Noodle Ltd v Queenstown-Lakes District Council10 and went on to summarise the factors which are likely to require consideration in answering that ultimate question:11
(a)The length of the delay. Clearly, the time period between the expiry of the appeal date and the filing of the application to extend time is relevant. But in a case where there has been a slip-up and the appeal date has been inadvertently missed, how quickly the applicant sought to rectify the mistake after learning of it will also be relevant.
7 Summary Proceedings Act 1957, ss 115, 116.
8 Summary Proceedings Act, s 123.
9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
10 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].
11 At [38] (footnotes omitted).
Obviously, the longer the delay, the more the applicant will be seeking an “indulgence” from the court and the stronger the case for an extension will need to be.
(b)The reasons for the delay. It will be particularly relevant to know whether the delay resulted from a deliberate decision not to proceed followed by a change of mind, from indecision, or from error or inadvertence. If from a change of mind or from indecision, there is less justification for an extension than where the delay results from error or inadvertence, particularly if understandable.
(c)The conduct of the parties, particularly of the applicant. For example, a history of non-cooperation and/or delay by an applicant may be relevant.
(d)Any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome. Again, the greater the prejudice, the stronger the case will have to be to justify the grant of an extension of time. Where there is significant delay coupled with significant prejudice, then it may well be appropriate to refuse leave even though the appeal appears to be strongly arguable.
(e)The significance of the issues raised by the proposed appeal, both to the parties and more generally. If there is a public interest in the issues, the case for an extension is likely to be stronger than if there is no such interest.
Evidence and submissions
Mr Ezeala
[20] Mr Ezeala addresses the reason for the delay in filing the application for leave in an affidavit sworn on 2 October 2024 in support of the application. He says that in March 2017 he was paroled from prison in New Zealand and returned back to his home country, Nigeria. He then says:
7.Between 2017 and 2019, the Applicant was genuinely contemplating reviving the abandoned appeal and how to raise funds to cover security for cost [sic] in that proceeding, the challenges of being unemployed and economic hardship in Nigeria along with poor health prevented that. Between 2020 and 2021 the world faced the global lock down due to the effects of the Covid - 19 pandemic and as a result the Applicant could not process the appeal.
8.2022 and 2023 resulted in more frustrations for the Applicant due to inability to pay security for cost and not being able to hire counsel to act and assist on his behalf despite several attempts which resulted in further delay. It is worth noting that all along the Applicant has never stopped thinking about his money and the need for it.
[21] Mr Ezeala also filed written submissions. They focus mainly on the merits of the appeal as follows:
(a)In his 2015 decision, Judge Harrison held that the cash seized could not be said to have been acquired through Mr Ezeala’s offending.12 In other words, the cash seized was not derived from Mr Ezeala’s unlawful activities.
(b)The only reason Judge Harrison ordered that the cash seized from Mr Ezeala’s car to be forfeited to the Crown was because Mr Ezeala, at the time, did not claim it. Had Mr Ezeala claimed that cash at the initial hearing, he would be entitled to it.
(c)Mr Ezeala’s position is that he was merely reserving his right to claim the cash seized from his car. He now, as he did at the 2017 hearing before Judge Harrison, claims full ownership over the forfeited cash.
(d)Given his claim to ownership, Judge Harrison erred in the 2017 decision by not ordering the return of the $32,530 to Mr Ezeala. Accordingly, Mr Ezeala has suffered a miscarriage of justice since the 2017 decision and will continue to suffer if the leave to appeal is not granted.
[22] In making those submissions, Mr Ezeala refers to the following: the Court of Appeal case of R v Collis (as referred to in Judge Harrison’s 2015 decision);13 the purposes of the Criminal Proceeds (Recovery) Act 2009 (CPRA);14 s 154 of the Search and Surveillance Act 2012 relating to disputed ownership of the thing seized; and a proposed amendment to the New Zealand Bill of Rights Act 1990 relating to the right to lawfully acquired property.15
12 2015 judgment, above n 1, at [22].
13 R v Collis [1990] 2 NZLR 287 (CA) at 448.
14 Criminal Proceeds (Recovery) Act 2009, s 3.
15 New Zealand Bill of Rights (Right to Lawfully Acquired Property) Amendment Bill 2023 (271-1), cl 4.
The Police
[23] The Police’s position is that Mr Ezeala has not established that it is in the interests of justice for the Court to grant an indulgence and allow him to proceed with this appeal seven years out of time. Ms Houghton makes three main submissions in support of this position:
(a)The application is an abuse of process as an appeal by Mr Ezeala was already brought (and abandoned) in 2017 after he failed to pay security for costs.
(b)Mr Ezeala has not given a satisfactory explanation justifying the delay in filing the current application and the other Almond v Read factors also count against granting the application.
(c)The merits of the proposed appeal are weak. This is not a case where the Court should exercise its discretion to extend time for filing an appeal. Even where an appeal is not hopeless, leave to appeal out of time will not be granted where no adequate explanation is given for a substantial delay.16
Discussion
[24]I address each of the Almond v Read factors in turn.
Length of delay
[25] The delay is seven years. Even much shorter periods such as three and a half months, including the Christmas break, has been found significant by the Court of Appeal.17 In Hillary v Todd the Court of Appeal declined leave in circumstances where a six month delay had not been adequately explained.18
[26]Clearly, seven years is a very significant delay.
16 Hillary v Todd [2008] NZCA 103 at [13]–[14].
17 My Noodle Ltd v Queenstown-Lakes District Council, above n 10, at [21].
18 Hillary v Todd, above n 16, at [13]–[14].
Reasons for delay
[27] This is not a case where Mr Ezeala has taken steps towards an appeal but through inadvertence or genuine misunderstanding has omitted to file a notice of appeal. Nor is it a case where new evidence has come to light. Mr Ezeala says he has been contemplating bringing an appeal for some years.
[28] Mr Ezeala attaches to his affidavit emails that show that between 18 July 2023 and 11 April 2024, he contacted five barristers to enquire as to their availability to represent him. This does not, however, explain the whole delay period from 2017 onwards.
[29] While the Court acknowledges the difficulties a lay person may well face in filing a proceeding, Mr Ezeala has now done so on his own behalf and has obtained a fee waiver for security for costs. Mr Ezeala could have done that far earlier.
Conduct of applicant
[30] Mr Ezeala filed an appeal in 2017 but it was deemed abandoned due to failure to pay security for costs. As already noted there was no evidential basis that changes the position from the position that existed at the time the first appeal was deemed abandoned.
Prejudice or hardship to respondent
[31] I accept Ms Houghton’s submission that there would be both specific and general prejudice to the Police if leave were to be given. Mr Ezeala now says the cash seized from the car was a loan from his co-defendant and he also says that this was money he had saved. In any appeal, the Police would obviously wish to respond to those assertions. There would be prejudice to the Police in making enquiries and obtaining evidence more than ten years down the track.
[32] There is also general prejudice in that when the Police apply for orders and they are made, there is a general interest in those orders being complied with. I consider there is a general prejudice if the forfeiture orders are to be overturned many years later.
Public interest
[33] The operative provisions of the SPA have now been repealed. Any decision regarding the application of s 199 of that Act would not have application beyond the facts of this case.
Merits of the appeal
[34] The Supreme Court has accepted that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time.19 However, the Supreme Court went on to note three qualifications to that general principle. One is that consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. A second qualification is that there will be some instances in which the merits or otherwise of a proposed appeal will be overwhelmed by other factors (such as the length of the delay and the extent of the prejudice to the respondent or others) and so will not require a consideration.
[35] In my view this is such a case where the merits are overwhelmed by the length of the delay. But for completeness I address the submissions made in relation to the claimed merits, albeit “superficially”.
Ownership not disclaimed
[36] Mr Ezeala says that at no point did he deny ownership of the forfeited funds. He says he simply “reserved” that right of ownership by not laying claim to the funds at the time. He says he did not claim the funds in order to avoid jeopardising other proceedings, such as any appeal against his conviction.
[37] I do not consider there is any meaningful distinction between “disclaiming” and “failing to claim” ownership in the context of the present case. The clear position on behalf of Mr Ezeala at all relevant times was that he was not making any claim to the cash found in the vehicle:
19 Almond v Read, above n 10, at [39].
(a)On 10 December 2013, his then counsel wrote to the prosecution advising that the appellant “[did] not seek to have the money in the glove box returned”.
(b)On 1 April 2014 then counsel for Mr Ezeala wrote to the prosecution advising his client “[had] made no claim” to the cash in the glove box.
[38] Further, I note that Mr Ezeala was sentenced on 26 October 2012. The appeal period to bring an appeal against conviction or sentence would have expired by the time of the hearing before Judge Harrison in 2015. It is unclear how the consideration of whether to lay claim to the cash seized from the car continued to be of relevance.
Illegality
[39] Mr Ezeala says the illegality principle should have operated to prevent forfeiture of the cash. This submission is misconceived. Although the principle could not support forfeiture of the cash (as outlined by Judge Harrison), that does not mean there was no other means by which it could have been disposed of. Pursuant to s 199(3)(a) of the SPA, the cash was essentially disposed of because no other claim had been made to it. Mr Ezeala did not make a positive claim until December 2016. That takes me back to the finding of prejudice I made. There is obvious prejudice to the Police in allowing an appeal against orders made over seven years ago, as discussed above.
Section 154: Search and Surveillance Act 2012
[40]Section 154 provides in relevant part as follows:
154 Disputed ownership of thing seized or produced
(1)If a thing seized or produced is not to be produced in evidence but there is a dispute about its ownership or for any reason the person in whose custody it is, is uncertain as to to whom the thing should be returned (for example, because it is unclaimed), the person in whose custody the thing is may apply to the District Court for directions as to the ownership or holding of the property.
(2)On an application under subsection (1), the District Court may—
(a)order that the thing be destroyed or, if any other enactment so authorises, forfeited to the Crown:
(b)order that the thing be delivered to the person appearing to the court to be its owner entitled to possession of it:
(c)if the owner or person entitled to possession cannot be found, make any order with respect to its possession or sale the court thinks fit.
…
[41] At the time of the hearing before Judge Harrison there was no uncertainty or dispute about ownership. Further, it would appear that s 154(1) does not apply. Mr Ezeala was not the person who had custody of the thing (cash). The Police had custody.
Proposed amendment to Bill of Rights Act
[42] The bill proposing a right to lawfully acquired property is not enacted law, and so provides no basis for Mr Ezeala’s appeal.
Humanitarian circumstances
[43] Mr Ezeala submits that new mitigating and humanitarian circumstances, namely his diagnosis of cancer and diabetes, ought to justify the immediate release of the forfeited cash. He says in his affidavit:
9.The desperate need for the Applicant’s money came in January 2024 following cancer diagnosis (testicular cancer S-II) the Applicant made a cautious decision to file a fresh appeal in the High Court at Auckland and to self represent to avoid further delay, this time the Applicant filed an application for a fee waiver which was accepted by the Court and the proceeding was lodged.
[44] Annexed to Mr Ezeala’s affidavit is a laboratory report dated 31 January 2024 which would appear to provide evidence regarding his cancer diagnosis.
[45] Mr Ezeala submits he has serious financial difficulties because he needs to fund treatment for both chronic diabetes mellitus and also cancer as diagnosed in January 2024. Mr Ezeala submits the only chance of survival rests solely on the relief sought of $32,530 to fund his medical treatments.
[46] Mr Ezeala relies on s 56 of the CPRA and says he would suffer undue hardship if the funds were not returned on appeal.
[47]Section 56 of the CPRA provides:
56 Exclusion of respondent’s property from profit forfeiture order because of undue hardship
(1)The High Court may, on an application made by the respondent before a profit forfeiture order is made, exclude certain property from being able to be realised under section 55(2)(c) if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property were realised.
…
[48] However, the appeal would be heard under the SPA and not the CPRA. Accordingly, the relief provisions in the latter Act have no application.
[49] There is also no freestanding right to appeal a decision such as the decision of Judge Harrison on humanitarian grounds. In any event, Mr Ezeala has provided no affidavit evidence to say that his conditions could not be treated through the public health system in Nigeria nor to support his submission that he would have to fund the treatment himself. Nor does he give any evidence as regards his finances.
[50]In summary, none of the appeal grounds has any merit.
Conclusion
[51] Mr Ezeala has not discharged the onus placed on him to properly explain why he took no steps to advance this appeal for seven years in circumstances where he knew an appeal right existed. The substantial delay is compounded by the lack of merit in the appeal.
[52] Accordingly, the interests of justice do not require Mr Ezeala to be granted an indulgence by way of granting leave to appeal. Having reached that view, it is not necessary to go further and decide whether the application is an abuse of process as submitted on behalf of the Police.
Result
[53]The application for leave to appeal out of time is dismissed.
Costs
[54] The respondent seeks costs. I did not hear submissions on costs and accordingly costs are reserved. The respondent, as the successful party, is prima facie entitled to costs.
[55] I direct the parties in the first instance to seek to agree costs. If such agreement can be reached the parties are to file a joint memorandum within 20 working days of the date of this judgment.
[56] If costs cannot be agreed, the respondent is to file and serve a memorandum within five working days of the date for the joint memorandum. Mr Ezeala is to reply by filing and serving a memorandum within 10 working days of the date of service of the respondent’s memorandum on him.
[57] Costs memoranda should not exceed more than four pages (excluding any attachments). I will determine costs on the papers.
Gordon J
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