Commissioner, New Zealand Police v Harrison

[2019] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2016-485-543

[2019] NZHC 1199

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant

AND

JOANNE HARRISON

First Respondent

AND

PATRICK FREDERICK SHARP

Second Respondent

Hearing:	29 May 2019
Counsel:	A W M Britten for Applicant
Judgment:	29 May 2019

JUDGMENT OF ELLIS J

[1]    The background to this matter is set out in my judgment Commissioner of Police v Harrison.1 In that judgment I essentially found that the KiwiSaver Act 2006 (the KSA) prevailed over the Criminal Proceeds (Recovery) Act 2009 (the 2009 Act), with the result that the Court could not make civil forfeiture orders under the latter Act in relation to Ms Harrison’s KiwiSaver funds which, at that point, remained invested with her KiwiSaver scheme provider.

1      Commissioner of Police v Harrison [2017] NZHC 3140.

THE COMMISSIONER, THE NZ POLICE v HARRISON [2019] NZHC 1199 [29 May 2019]

[2]Since the date of that judgment the following has occurred:

(a)on 21 January 2019 Ms Harrison was deported from New Zealand to the United Kingdom, upon her release from jail;

(b)final assets and profit forfeiture  orders  were made  by Clark  J  on  18 April 2019 (the orders were sealed on 8 May 2019) in which the value of the unlawful benefit obtained by Ms Harrison as a result of her offending (and the maximum recoverable amount under the 2009 Act) was determined to be $784,172.16, less the value of the property that was the subject of the assets forfeiture order;

(c)after realisation of those assets there remains a considerable portion of the maximum recoverable amount which remains unpaid. That amount remains recoverable by the Official Assignee as a debt due to the Crown by virtue of s 55(4) of the 2009 Act;

(d)on 16 May 2019 Ms Harrison applied to her KiwiSaver fund manager, Kiwi Wealth Limited for early access to her KiwiSaver funds on the grounds of significant financial hardship. Public Trust (the sector supervisor) subsequently authorised a partial withdrawal of $23,000.2 That amount is now being held in a holding account at Kiwi Wealth Limited and is due  to  be  transferred  to  Ms  Harrison  in  the  United Kingdom tomorrow night.

[3]    Upon becoming aware of the imminent transfer, the Commissioner applied without notice under the 2009 Act for restraining orders over the $23,000. That application came before me as Duty Judge.

[4]    Upon first reading the application and the material in support I issued a minute expressing concern that the application might be an abuse of process, in light of my 2017 judgment. Further submissions were then filed and there was an oral hearing before me this morning.

2      As I understand it, Ms Harrison’s KiwiSaver funds total more than $110,000.

[5]    As a result of those submissions and that hearing my provisional view of the matter now is that the $23,000 that has been released from Ms Harrison’s account is (as the Commissioner says) no longer protected by the provisions of the KSA.3 But whether the funds can be the subject of restraint strictly so called seems conceptually problematic, given that final orders under the 2009 Act have been made.4 That said, however, in light of the indisputable debt owed to the Crown by Ms Harrison it seems to me that the funds could equally be made the subject of a (without notice) freezing order under Part 32 of the High Court Rules. Such orders operate in a materially similar way to restraining orders under the 2009 Act. I am satisfied that the grounds for such an order would exist, at least at this without notice stage.

[6]    Given the present form of the application, however, I grant the without notice restraining order sought. I would suggest that thought should be given to converting the proceeding to one brought under Part 32, but for now I leave that to the Commissioner and his counsel.

[7]    In the meantime, however, the 2009 Act requires an on notice application to be made within seven days of the making of a without notice order and it is obviously important (and the  Act  requires)  that  the  on  notice  application  be  expedited.  Mr Britton advised that the Commissioner would take all available steps to ensure that Ms Harrison is served with the proceedings as soon as possible.

[8]    Obviously, there may be issues for Ms Harrison in obtaining legal representation from a distance and without legal aid, in the event that she wishes to oppose the restraining order. But regardless of any formal opposition I would think that one issue on which she may well wish to be heard relates to the possible imposition of conditions as to the payment of reasonable living costs in terms of s 28 of the 2009 Act.

[9]    But regardless of whether she is represented at the on notice hearing I consider that this is a matter where the Court would benefit from the appointment of counsel to

3      My view is provisional because I have not yet had the benefit of hearing from any contradictor.

4      Mr Brittain advised that, in the event forfeiture of the funds was sought by the Commissioner, an amended application (ie an amendment of the original and now determined application) would be filed.

assist. I continue to have residual concerns that restraint cuts across the purpose of the KSA and also about the interrelationship between the “significant hardship” in terms of the KSA which the Public Trust has (self-evidently) found to exist and the “undue hardship” exemptions under the 2009 Act. I make a direction that the Registry arrange the appointment of counsel to assist accordingly.

[10]   I make an order that the affidavit of Brent Andrew Murray dated 23 May 2019 not be accessed or searched without leave of the Court.

Rebecca Ellis J