Commissioner of New Zealand Police v McLean

[2022] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-19

[2022] NZHC 2634

UNDER

The Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to ss 22 and 25 of the Act

BETWEEN

COMMISSIONER OF NEW ZEALAND POLICE

Applicant

AND

DONALD JOHN MCLEAN

First Respondent

AND

LISA MELANIE MCLEAN

Second Respondent

AND

TRUSTEES OF THE

MCLEAN-MCGOWAN FAMILY TRUST
Third Respondent

AND

AYDEN PAUL WATT

Fourth Respondent

AND

NICHOLAS EDWARD SUSZKO

Fifth Respondent

(Parties continued over)

Hearing:

On the papers

Appearances:

R D Smith for Applicant

G A Paine for Julie-Anne Jones (Interested Party)

Judgment:

12 October 2022

JUDGMENT OF DOOGUE J

COMMISSIONER OF NEW ZEALAND POLICE v MCLEAN [2022] NZHC 2634 [12 October 2022]

AND

SARAH JONES

Sixth Respondent

AND

JULIE-ANNE JONES

Interested Party

AND

WESTPAC BANK NZ LTD

Interested Party

AND

KIWIBANK LTD

Interested Party

This judgment was delivered by me on 12 October 2021 at 3.15 pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]    The substantive issue in this case is an application pursuant to ss 22 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) for restraining and forfeiture orders of a variety of different property

[2]    Specifically, the Commissioner seeks a restraining order concerning the interests in the residential property at 49C Bath Street, Brighton, Dunedin described in the record of title as Lot 2 DP9931, excluding the interests of Westpac Bank NZ Ltd as mortgagee pursuant a Registered Mortgage 11656934.3 (Bath Street).

[3]    The registered proprietors are Sarah Jones, the sixth respondent, and Julie-Anne Jones, an interested party. Julie-Anne Jones is the mother of Sarah Jones and Jacob Jones.

[4]    Sarah Jones and Jacob Jones, together with Ayden Watt, have pleaded guilty to:

(a)conspiring to sell cannabis;1

(b)seven charges of sells cannabis plant;2

(c)offering to sell cannabis plant;3 and

(d)(Ayden Watt only) possession of cannabis for sale.4

Application

[5]    Julie-Anne Jones has applied, pursuant to s 30 of the Act for an order excluding any order restraining her severable interest in Bath Street.

[6]The grounds on which the order is sought are as follows:

1      Misuse of Drugs Act 1975, s 6(2A): maximum penalty seven years’ imprisonment.

2      Sections 6(1)(e) and (2)(c): maximum penalty eight years’ imprisonment.

3      Sections 6(1)(d) and (2)(c): maximum penalty eight years’ imprisonment.

4      Sections 6(1)(f) and 6(2)(c): maximum penalty eight years’ imprisonment.

(a)Julie-Anne Jones as an interested party has a severable interest in the property to be restrained in that she is the owner of an undivided one-half share of the property together with Sarah Jones;

(b)there is no evidence linking and/or suggesting that Julie-Anne Jones has any involvement with the matter before the court, apart from the co-ownership of the said property; and

(c)that without the severable interest being removed from the property to be restrained the interested party would suffer adverse hardship that is reasonably likely to be caused to her with her interest in the property being her only asset.

Current application

[7]    The Commissioner seeks to introduce the convictions  of  Sarah  Jones,  Jacob Jones and Ayden Watt, as well as the summary of facts that forms the basis of those convictions, into evidence on the basis that they are relevant to the determination of Julie-Anne Jones’ application.

[8]    Julie-Anne Jones’ position is that she has no knowledge of any of the matters that led to the convictions against Sarah Jones, Jacob Jones and Ayden Watt.

[9]    Section 47 of the Evidence Act 2006 provides that a criminal conviction is admissible in civil proceedings if relevant to an issue in those proceedings. Specifically, s 47 relevantly states:

47       Conviction as evidence in civil proceedings

(1)When the fact that a person has committed an offence is relevant to an issue in a civil proceeding, proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

(2)Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—

(a)permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and

(b)if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.

(3)This section applies—

(a)whether or not the person convicted is a party to the proceeding; and

(b)whether or not the person was convicted on a guilty plea.

…

[10]   In the present case, the convictions of Sarah Jones, Jacob Jones and Ayden Watt are central to Ms Jones’ application to sever her interest in the subject property. That is because the property in question has been restrained on account of Sarah Jones, Jacob Jones and Ayden Watt’s offending.

[11]   The summary of facts that was agreed prior to the guilty pleas of Sarah Jones, Jacob Jones and Ayden Watt is the critical document in understanding the basis for the convictions.

[12]   The authors of Cross on Evidence have opined that a summary of facts will be admissible in civil proceedings, if not under s 47 itself, then by the relevant hearsay provisions in Part 2 of the Evidence Act, in particular s 18.

[13]   On that basis, the counsel for the Commissioner submitted that the convictions of Sarah Jones, Jacob Jones and Ayden Watt are admissible in respect to this application pursuant to s 47 of the Evidence Act.

[14]   It was further submitted that the summary of facts underlying those convictions should likewise be admitted into evidence, whether or not those facts are agreed by Ms Jones, so as to provide context to the convictions.

[15]   The summary of facts is reliable and undue expense or delay would be occasioned if the Commissioner was required to prove each of the facts contained in the summary.

[16]   The general admissibility of hearsay gateway, contained at s 18 of the Evidence Act, is therefore opened.

[17]   Counsel for the Commissioner noted that in “exceptional circumstances” the presiding Judge may allow Ms Jones to offer evidence tending to prove that the offences were not committed. However, that does not appear to be a realistically available approach in the present case, where Ms Jones claims to have no knowledge of the offending.

[18]   Overall, and noting that the without notice restraining order was granted on the basis of Sarah Jones, Jacob Jones and Ayden Watt’s now admitted offending, there is no prejudice to Ms Jones in the convictions and summary of facts being entered into evidence.

Result

[19]   The evidence of the convictions against Sarah Jones, Jacob  Jones  and  Ayden Watt are entered into evidence together with the summary of facts underlying the convictions.

Doogue J

Solicitors:

Crown Solicitor, Dunedin Jenny Beck Law, Dunedin Solomons, Dunedin

Ross Dowling Marquet Griffin, Dunedin Lateral Lawyers Ltd, Auckland

CC:

G A Paine, Dunedin

C Patterson, Auckland A Pinnock, Dunedin

S Saunderson-Warner, Dunedin