Commissioner of Police

[2021] NZHC 1619

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2149

[2021] NZHC 1619

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

WAYNE STEPHEN DOYLE

First Respondent

HARATA RAEWYN PAPUNI

Second Respondent

Judgment:

(On the papers)

1 July 2021

JUDGMENT (NO.2) OF BREWER J

This judgment was delivered by me on 1 July 2021 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Applicant Dominion Law (Auckland) for Respondents

COMMISSIONER OF POLICE v DOYLE & PAPUNI [2021] NZHC 1619 [1 July 2021]

[1]                 Mr Doyle and Ms Papuni seek leave to appeal1 my judgment in this matter to the Court of Appeal.2

[2]                 My judgment concerned an application by Mr Doyle and Ms Papuni to require the Commissioner of Police to file a statement of claim replacing the originating application by which he seeks orders pursuant to the Criminal Proceeds (Recovery) Act 2009.

[3]In my judgment I set out the essence of my decision:

[21] In my view, the originating application procedure has not miscarried. The respondents know both the allegations against them and the evidence upon which the Commissioner will rely to prove them.  The affidavits of   Mr Peat and Ms Cairns, to which I have referred, and the letter of 8 March 2021 provide narratives of the Commissioner’s case.

[4]                 The parties agree that I may decide the application on the papers.

[5]                 There is some urgency; the Commissioner’s application for civil forfeiture orders is set down for a three-week hearing commencing 20 September 2021.

[6]                 In the interlocutory application for leave, Mr Mansfield QC sets out the grounds for leave:

2.The grounds on which the orders are sought are that the High Court erred in finding that the Commissioner is not required to provide further particulars of his claim, whether by way of a statement of claim or otherwise. In particular, the Court erred by finding that:

2.1The applicable test for whether a statement of claim should be ordered in proceedings under the Criminal Proceeds (Recovery) Act 2009 (CPRA) is that in Commissioner of Police v Li [2018] NZHC 292, namely whether it is “both necessary and proportionate having regard to the nature of the proceeding”.

2.2If the applicable test is whether it is “both necessary and proportionate having regard to the nature of the proceeding”, the respondents know both the allegations against them and the evidence upon which the Commissioner will rely to prove them such that it is neither necessary nor proportionate to require the Commissioner to provide the particulars sought by

1      Senior Courts Act 2016, s 56(3).

2      Commissioner of Police v Doyle & Papuni [2021] NZHC 1209.

the Respondents in this case. In particular, the High Court erred by:

(a)Finding that the Commissioner is not required to provide particulars of:

(i)The precise factual conduct alleged to constitute the alleged significant criminal activity;

(ii)Who is alleged to have carried it out;

(iii)The amounts alleged to have accrued to the Respondents from each of the alleged significant criminal activity; and

(iv)How the Respondents are alleged to have had the requisite knowledge of the factual conduct plead.

(b)So finding despite the definition of “unlawfully benefited from significant criminal activity” under   s 7 of the CPRA:

7Meaning of unlawfully benefited from significant criminal activity

In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).

(c)  

(i)The Commissioner’s bald and proforma originating application;

(ii)The 33 affidavits filed by the Commissioner in this case (in excess of 9,000 pages);

(iii)Many thousands of pages of discovery; and

(iv)The Commissioner’s letter dated 8 March 2021 that fails, despite repeated requests by the Respondent, to state with required particularity the Commissioner’s case so that the Commissioner is bound and the Respondents fairly informed of the confines of the application.

(d)So finding notwithstanding the Court’s findings that:

(i)The Commissioner seeks forfeiture of over

$10 million of assets.

(ii)“[T]his is a more complex application than many brought by the Commissioner pursuant to the CPRA.”

(iii)There is “a great deal of detailed information” in the affidavits filed in support of the Commissioner's applications.

(e)Finding that a formal statement of claim “would not, pragmatically, add anything”.

(f)Finding that, for the purposes of determining whether particulars are necessary, particular weight could be placed on two out of the 33 affidavits filed by the Commissioner, namely the affidavits of Mr Peat and Ms Cairns. In particular, the Court erred by finding that:

(i)The affidavit of Mr Peat sworn on 26 May 2020 summarises the evidence to be called on behalf of the Commissioner and “contains the detail, and more, that might be expected of a statement of claim”.

(ii)The affidavits of Mr Peat and Ms Cairns, and the letter of 8 March 2021, provide “narratives” of the Commissioner’s case.

(g)Finding that a “narrative” of the Commissioner’s case in the Peat and Cairns affidavits is sufficient to give the Respondents notice of the case they are required to meet.

(h)Conflating the high volume of detail in the Commissioner’s evidence with the requirement for adequate particulars of pleading. In particular, the Court erred by finding that the fact that the following documents were “detailed”, voluminous, and/or linked to documentary evidence was effectively a substitute for a properly particularised pleading:

(i)The originating application brought by the Commissioner which is entirely proforma;

(ii)The affidavit of Mr Peat sworn on 26 May 2020, which runs to 125 pages;

(iii)The affidavit of Ms Cairns sworn on 26 May 2020, which runs to 105 pages; and

(iv)The Commissioner’s letter of 8 March 2021.

(i)Where, as the Court found to be the case here, the Commissioner’s case is circumstantial, the Commissioner is not required to provide particulars of the relevant facts he will seek to prove from which he will then invite the Court to draw the very inferences relied on e.g. the factual basis upon which an inference may be drawn of the Respondents’ alleged knowledge.

Proportionality

(j) 

(i)The Commissioner had been investigating these matters since not later than 2017;

(ii)The Commissioner has already filed 33 affidavits in support across approximately 9,000 pages;

(iii)The Commissioner has provided many thousands of pages of disclosure; and

(iv)The Commissioner seeks forfeiture of approximately $10 million.

(k)Failing to have regard to the Respondents’ alternative argument that the Commissioner could simply provide the particulars without necessarily filing a statement of claim.

Delay

(l)By finding that there is a “statutory emphasis on the swift and efficient conduct of forfeiture matters” under the CPRA.

(m)By finding that the Commissioner being required to file a particularised statement of claim “would risk delaying this complex proceeding”, notwithstanding that:

(i)The Commissioner had been investigating these matters since not later than 2017;

(ii)The Commissioner obtained restraining orders on 22 September 2017;

(iii)The Commissioner did not apply for forfeiture until 29 May 2020;

(iv)The Commissioner took four months to provide the particulars he was prepared to provide; and

(v)There being no factual basis upon which any urgency could be claimed or warranted given that the relevant property is restrained.

Fair trial issues

(n)Finding that the originating application procedure has not miscarried in this case, notwithstanding that:

(i)The Commissioner’s case apparently relies on inferring knowledge; but

(ii)The Commissioner has not pleaded the primary facts on the basis of which he alleges that inference should be drawn other than to assert that the First Respondent is the President of the Head Hunters.

Decision

[7]                 I decline to grant leave to appeal.

[8]My reasons are:

(a)My decision was the result of a practical evaluation of the issues the Commissioner must prove and his disclosure of the evidence by which he means to do so. I also took into account explanations amounting to further particulars given by  the  Commissioner  to  Mr Doyle  and  Ms Papuni. I do not see a matter of general or public importance that should be decided by the Court of Appeal.

(b)There is going to be a civil trial. If the fears expressed by Mr Mansfield are realised then the trial Judge has the ability to deal with them, if they are accepted by the Judge as relevant to doing justice between the parties in the case. The obvious tool available to the trial Judge would be to grant an adjournment if the Commissioner was demonstrated to be “ambushing” Mr Doyle and Ms Papuni or otherwise adopting a line of argument insufficiently heralded in the originating application.

(c)If the trial results in orders against Mr Doyle and Ms Papuni, and there are concerns those orders were obtained due to unfair process by the

Commissioner, then those concerns can be aired on appeal to the Court of Appeal as of right.

[9]The application for leave to appeal is dismissed.

Addendum

[10]              I note that the Commissioner seeks costs in relation to my judgment, and no doubt will seek costs in relation to the application for leave to appeal. If Mr Doyle and Ms Papuni apply direct to the Court of Appeal for leave to appeal then I will suspend consideration of the payment of costs until the Court of Appeal has given its decision.

[11]              I direct counsel for Mr Doyle and Ms Papuni to advise me within five working days whether direct leave will be sought.

Brewer J