Commissioner of Police v Afato

[2024] NZHC 1097

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-077

[2024] NZHC 1097

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 POLICE

Applicant

AND

MELANIE JUNE AFATO

First Respondent

AND

GARRY DOUGLAS McFARLANE

Second Respondent

AND

AVANTI FINANCE LIMITED

Interested Party

Hearing:

On the papers

Counsel:

R D Smith for Applicant

K E Hogan for First Respondent

Judgment:

6 May 2024

JUDGMENT OF OSBORNE J

[1]                 The Commissioner of Police applies on notice for a restraining order under ss 22 and 25 Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]                 The respondents, Melanie Afato and Garry McFarlane, are alleged to have been cultivating and selling cannabis on a commercial scale. The application is made in respect of a property at 6 Mill Street, Clinton, which is registered in Ms Afato’s name, and in which the two respondents reside (the property).

COMMISSIONER OF POLICE v AFATO [2024] NZHC 1097 [6 May 2024]

The basis of the application

[3]                 The application was previously considered by Dunningham J upon the Commissioner’s without notice application. A without notice restraining order was made on the terms applied for by the Commissioner.1

[4]                 Dunningham J reviewed the Commissioner’s affidavit evidence and was satisfied from the totality of the evidence that there were reasonable grounds to believe the property is tainted property and that there was a risk of dissipation.2 Since the previous order was made, Ms Hogan has appeared for the first respondent, with the second respondent entering no appearance. Ms Hogan has advised the Court that the first respondent does not oppose the on notice application.

[5]                 I have reviewed the same evidence as reviewed by Dunningham J, as referred to in the earlier judgment. I am equally satisfied for the reasons recorded by Dunningham J that there are reasonable grounds to believe the property is tainted property and there is a risk that the property may be disposed of or otherwise dealt with if it is not restrained.

Order

[6]                 I make a restraining order in terms of the draft order filed by the applicant on 1 May 2024.

[7]                 There is an order that the costs of the application on notice are fixed on a 2B basis and are to be costs in the cause.

Osborne J

Solicitors:

Crown Solicitor, Dunedin

Copy to: K Hogan, Auckland

Mr McFarlane (Second Respondent)

1      Commissioner of Police v Afato [2023] NZHC 2175.

2 At [15].