Commissioner, New Zealand Police v Woodley

[2022] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-30

[2022] NZHC 1018

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under sections 22, 24, 25,

33-35, and 80.

BETWEEN

THE COMMISSIONER, NEW ZEALAND POLICE

Applicant

AND

JACQUELINE MARIE WOODLEY

First Respondent

MICHAEL LEWIS WOODLEY
Second Respondent

ANZ BANK

Interested Party

On the papers:
Counsel:	G J C Carter for Applicant
Judgment:	12 May 2022

JUDGMENT OF CHURCHMAN J

[1]                 By without notice application dated 11 May 2022, the applicant seeks restraining and other orders (prior to civil forfeiture orders) under ss 22, 24, 25, 33- 35, 80, and 102 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]                 Filed with the application was a memorandum of counsel and a detailed affidavit from Detective Constable Chaston.

THE COMMISSIONER, NEW ZEALAND v WOODLEY & ORS [2022] NZHC 1018 [12 May 2022]

[3]                 The applicant seeks restraining orders under s 24 and/or s 25 of the Act in respect of a property owned by the first and second respondents (the Property). They have applied on a without notice basis pursuant to s 22 of the Act.

[4]The description of the Property is:

All interests in the property at 21 Platform Road, Himatangi, Manawatu registered in the name of the first and second respondents and described under record of title unique identifier WN13D/1361, legal description section 759 Town of Carnarvon; other  than  the  registered  interest  of  ANZ  Bank  New Zealand Limited.

[5]                 In addition to the restraining order, the applicant seeks further orders under  ss 33-35, 80 and 102 of the Act that:

(a)members of the Police and of the Official Assignee’s office may go onto and into the Property to take custody and control of the Property (including keys);

(b)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;

(c)the Property to which this order applies is to be in the Official Assignee’s custody and control; and

(d)the respondents must provide the Official Assignee or his agent with access to inspect, assess, and appraise the Property on an ongoing basis so as to ensure the integrity and value of the Property.

[6]                 The grounds upon which the restraining order is sought is that there are reasonable grounds to believe that the respondents have unlawfully benefited from significant criminal activity and that they have an interest in the Property.

[7]                 It is contended that there are reasonable grounds to believe that the Property is tainted Property.

[8]                 In relation to the further orders sought, it is submitted that they are required to ensure:

(a)the value of the Property is preserved and not dissipated or adversely effected before civil forfeiture can be determined; and

(b)members of the Police and Official Assignee’s office can enter the Property to locate and seize the Property to ensure the restraining orders can be effectively enforced.

[9]                 The “significant criminal activity” upon which the application is based is the cultivation of cannabis.

[10]              The affidavit of Detective Constable Chaston sets out in detail the grounds upon which it is asserted that the first and second respondents have been engaged in large scale of cultivation of cannabis at the Property.

[11]              The reason said to justify the without notice application is that there is a risk of the proposed restrained property being destroyed, disposed of, altered or concealed if notice were given to any or all of the persons who, to the applicant’s knowledge have an interest in the proposed restrained property.

Analysis

[12]              The evidence in the affidavit of Detective Constable Chaston satisfies me that there are reasonable grounds to believe that the respondents have unlawfully benefited from significant criminal activity, and that they have an interest in the Property. It also establishes that there are reasonable grounds to believe that the Property is tainted property. The evidence also provides reasonable grounds to believe that the further orders sought are necessary in order to preserve the value of the Property and ensure that it is not dissipated.

[13]              I am also satisfied that it is appropriate for the application to have been made on a without notice basis in order to avoid the risk of the Property being disposed of.

Outcome

[14]              The orders sought in the application are granted in the terms of the draft order filed with the application subject to the correction of the legal description of the Property which should refer to Town of Carnarvon rather than “Carnovon”.

Churchman J

Solicitors:
BVA, The Practice, Palmerston North