Commissioner, New Zealand Police v Matthews

[2021] NZHC 3008

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-000071

[2021] NZHC 3008

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

An application under sections 22, 24, 25, 58

and 80

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

CRAIG WAYNE MATTHEWS

Respondent

BRITTANY NATALIE ROSLYN MORGAN

First Interested Party

TINOROA AARON MATHEW HORUA- TIMOTI

Second Interested Party

MICHAEL TAMARAPA
Third Interested Party

WAYNE SELWYN DESMOND MATTHEWS

Fourth Interested Party

TOMAIRANGI HENARE HOEFT

Fifth Interested Party

NEVILL SHANE HUGHES

Sixth Interested Party

Hearing:

3 November 2021 (On the papers and by way of telephone conference)

Appearances:

G C J Carter for Applicant

No Appearance for Respondent

Judgment:

8 November 2021

COMMISSIONER, NEW ZEALAND POLICE v CRAIG WAYNE MATTHEWS [2021] NZHC 3008 [8

November 2021]

JUDGMENT OF EATON J

[1]        By application dated 29 October 2021, the applicant has, on a without notice basis, applied for restraining and further orders in relation to two motorbikes said to be in the effective control of the respondent, Mr Matthews.

[2]        Consent orders have previously been made in relation to other property said to be in the effective control of Mr Matthews. Those orders were initially made by Churchman J on a without notice basis on 4 December 2020. Consent orders were then made by Cooke J on 1 June 2021 after on-notice applications had been made.

[3]        As a consequence of ongoing police enquiries, the applicant now seeks orders restraining a black  2014  Harley  Davidson  Muscle  Rod  and  a  black  2018  Harley Davidson 17 Pro St Breakout. Those vehicles are registered in the names of the fifth and sixth interested parties respectively but are said to be under the effective control of the respondent.

[4]        I have considered the evidence filed in support of the application (including the affidavits filed in support of the prior applications and referred to at paragraph 1.4 of the affidavit of Ashley Dewington-Davies), the memorandum of counsel on behalf of the applicant and I have heard from Mr Carter on behalf of the applicant.

[5]        I am satisfied that this is an appropriate application to have been made on a without notice basis.

[6]        I am further satisfied that the material before the Court provides an evidential basis to infer that the respondent has benefitted from significant criminal activity; that the property sought to be restrained represents the proceeds of such activity , and that the respondent has effective control over the property.

[7]        I find that the further orders sought as to the recovery, preservation and the custody and control of the two motorbikes are appropriate.

[8]        The Court makes restraining orders under ss 24 and/or 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) as follows:

(a)The following property (collectively, the property) shall not be disposed of, or dealt with, by any person other than as provided for in this order, and is to be under the Official Assignee’s custody and control.

(i)A black 2014 Harley Davidson Muscle Rod, including ignition keys, registration plate B9UPS, registered in the name of the fifth interested party (Tomairangi Hoeft) but under the effective control of the respondent (the 2014 Harley Davidson).

(ii)A black 2018 Harley Davidson 17 Pro St Breakout, including ignition keys, registration plate B7PJD, registered in the name of the sixth interested party (Nevill Hughes) but under the effective control of the respondent (the 2018 Harley Davidson).

[9]Effective control orders under s 58 of the Act are made as follows:

(a)The following property is, for the purposes of this application to be treated as though the respondent had an interest in it:

(i)The 2014 Harley Davidson; and

(ii)The 2018 Harley Davidson.

[10]      A further order in relation to the property under ss 33, 34 and 35(e) and 102 of the Act is made as follows:

(a)Members of the police and of the Official Assignee’s office may go onto and into property and vehicles to take custody and control of the aforementioned property (including keys) described in [8] hereof if there are reasonable grounds to believe the property (including keys) will be located on or in that property.

[11]      A further order to preserve the value of the property under ss 33, 34 and 35 of the Act is made as follows:

(a)The property to which this order applies is not to be disposed of, or dealt with, other than as is provided for in the restraining order.

[12]      A further order to regulate the manner in which the Official Assignee may exercise his or her powers under s 35(e)(i)–(v)(i) and 80 of the Act is made as follows:

(a)The property to which this order applies is to be in the Official Assignee’s custody and control.

[13]I direct the applicant to file a draft sealed order.

...................................................

Eaton J

Solicitors:
BVA The Practice, Palmerston North