Commissioner of Police v Aguila

[2025] NZHC 45

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2025-476-006

[2025] NZHC 45

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

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

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

MARK LOUIS TAMILLOSO AGUILA

Respondent

AND

MARIA CECILIA SALVADOR AGUILA

Interested Party

Hearing:	On the papers
Counsel:	A R McRae for Applicant
Judgment:	31 January 2025

JUDGMENT OF HARLAND J

[1]    The Commissioner of Police (the Commissioner) applies on a without notice basis for a restraining order under ss 22 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) in respect of a residential property at 8C Goldrich Grove, Netherby, Ashburton. The registered proprietors of the property are the respondent and his wife. The wife is named in the proceedings as an interested party. The order is sought excluding the interest of the ANZ Bank New Zealand Ltd (ANZ) which is registered against the title and secured by registered mortgage.

COMMISSIONER OF POLICE v AGUILA [2025] NZHC 45 [31 January 2025]

[2]The application is sought because the Commissioner submits that:

(a)        the respondent has benefitted from significant criminal activity; and

(b)        there is a risk of the proposed restrained property being destroyed, disposed of, altered or concealed if notice was given to any or all of the persons who the Commissioner currently knows has an interest in that property.

[3]    It is also submitted that to proceed on notice would cause undue delay as well as prejudice the Commissioner, and that the interests of justice require the application to be determined on a without notice basis.

[4]    I have decided to grant the application as sought. This judgment sets out my reasons for doing so.

The evidence

[5]    The evidence supporting the Commissioner’s application was contained in an affidavit by Detective Mitchell. As well as the matters deposed to in that affidavit, Detective Mitchell attached various documents to support the application.

[6]    The evidence establishes that the respondent and interested party are the registered proprietors of the property which is the subject of the application. The interested party resides at the address, has no criminal convictions and is not known to the Police. The respondent resides at a different address and is a sharemilker. He does not have any prior convictions but is known to the Police through the maintenance of his firearms licence which expired in August 2024. Both the respondent and interested party are the sole directors of M and M Aguila Dairies Ltd, with each holding 50 per cent of the company’s shares. They operate a sharemilking business through this company.

[7]    The Police have been conducting an investigation focused on the suspected supply of methamphetamine and firearms by the respondent. It is intended that the investigation will terminate on 4 February 2025.

[8]    The respondent came to the attention of the Police in October 2023 when a firearm he had purchased was found in the possession of a gang-associated unlicensed individual. Enquiries revealed that the respondent had purchased 13 other firearms from Gun City between September 2020 and January 2023.

[9]    On 25 October 2024, the respondent was spoken to by the Police. It is said he made spontaneous comments about purchasing firearms for gang members in exchange for methamphetamine and money, knowing the individuals he supplied firearms to were not licensed.

[10]   On 8 November 2024, the respondent was again spoken to by the Police. He provided details about his use of methamphetamine and the provision of it to others.

[11]   After this interview, the respondent's cell phone was seized under a search warrant. A preliminary review of data from his phone has been conducted but many messages are still untranslated from the Filipino language.

[12]   The Commissioner submits that the messages reviewed to date show the respondent arranging methamphetamine purchases in suitable quantities to then on- supply to others.

[13]The respondent currently faces charges under the Arms Act 1983 of:

(a)        unlawfully possessing a firearm (x7);

(b)        possessing non-prohibited firearms without a licence (x2); and

(c)        unlawfully possessing ammunition (x2).

Some of these charges are representative.

[14]   Upon termination of the current Police operation, it is intended that the respondent will be charged with:

(a)        supplying a class A controlled drug (methamphetamine) under the Misuse of Drugs Act 1975; and

(b)        possession of objectionable materials with knowledge (terrorism) under the Films, Videos and Publications Classification Act 1993.

[15]   The last proposed charge deals with a video of the mosque shooting at Christchurch in March 2019 that the Police extracted from the respondent's cell phone which they allege had been downloaded two days after the tragedy and which they say had last been accessed on 25 November 2023.

[16]   A preliminary financial analysis of the respondent's bank accounts has been conducted revealing he operates accounts with both ANZ and Westpac. The initial analysis undertaken of the ANZ accounts suggests that they were used for the sharemilking enterprise and genuine day-to-day expenses. The respondent's main Westpac account was found to have been heavily funded by cash deposits and third-party transfers. Other Westpac accounts were mostly inactive and funded by transfers from the account referred to.

[17]   With some adjustments made, the analysis suggests that, between 1 January 2018 and 14 November 2024, the sum of $64,240 cash was deposited into the respondent's main Westpac account for which there is no known identified legitimate source. A further $294,083 was received into that account from 796 third-party electronic deposits during that period. Enquiries reveal that a significant portion of these deposits have been linked to individuals born in the Philippines and living in mid or south Canterbury, and that a reasonable number of those individuals are considered to be associated with methamphetamine use or supply, suggesting that the deposits are likely related to methamphetamine dealing. In addition, the deposits were often rounded to "the dollar" and range from $20 to $1,000 which, it is submitted, may suggest transactions related to the purchase of methamphetamine in small quantities.

[18]   The Commissioner intends to undertake a more comprehensive financial analysis in the future to determine the full extent of the benefits derived by the respondent.

Discussion

Legal principles

[19]   Section 22 of the Act enables the Court to consider an application for restraining order without notice if it is satisfied that there is a risk of the proposed restrained property being destroyed, disposed of, altered or concealed if notice was to be given to a respondent.

[20]   A restraining order is a temporary order. It requires reasonable grounds to believe rather than proof that a respondent has unlawfully benefitted from significant criminal activity and has an interest in or effective control over the property sought to be restrained.1 The property restrained does not need to be tainted.

[21]   Because of the temporary nature of a restraining order, the Court is not making a final determination that in fact a respondent has unlawfully benefitted from significant criminal activity, rather that is the function of an application for a profit forfeiture order made under s 25 of the Act.

[22]   If grounds are made out for an order to be made without notice, the order ceases to be in force seven days after the date upon which it was made.2 If an application for a restraining order in relation to the same property is made on notice before the expiry of the seven-day limit, the without notice order then remains in force until the application for the on notice order is finally disposed of.3

Applying the law to the facts

[23]   I have no difficulty in finding that there are reasonable grounds to believe that the respondent has unlawfully benefitted from significant criminal activity. The evidence to support this finding at this stage of the proceeding comes from what he is said to have told the Police, what the Police have uncovered during their investigation of the data on his cell phone and from the additional financial analysis undertaken. It may well be as matters progress that the complexion of these facts changes but, as it currently stands, in my view, the reasonable grounds test has been met.

1      Vincent v Commissioner of Police [2013] NZCA 412 at [47].

2      Criminal Proceeds Act (Recovery) Act 2009, s 39(1).

3      Section 39(2).

[24]   I am also satisfied that the respondent has an interest in or effective control over the property sought to be restrained. There will be the ability for the interested party to take steps to preserve her position in due course.

[25]   I am also satisfied that the application should be granted on a without notice basis. I am satisfied this is a case where it is necessary for a without notice restraining order to be taken as a precautionary step,4 given the stage at which this investigation is at (to be terminated shortly) and the breadth of it. To proceed on notice at this stage, in my view, would cause undue delay and prejudice to the Commissioner and that, overall, the interests of justice require it to be determined without serving it on the respondent and interested party before making this order.

Result

[26]The application is granted as sought.

[27]I make the following orders:

(a)        a restraining order in relation to all interests in the residential property at 8C Goldrich Grove, Netherby, Ashburton with the legal description of Record of Title 585113, being Lot 77 Deposited Plan 455115 and Lot 304 Deposited Plan 455115 and registered in the names of Mark Louis Tamilloso Aguila and Maria Cecilia Salvador Aguila, excluding any interest secured under registered mortgage 11162157.3 in favour of ANZ Bank New Zealand Ltd; and

(b)        the ANZ Bank New Zealand Ltd is also an interested party. I direct that it be also served with a copy of this order.

Harland J

Solicitors:

Crown Solicitor, Timaru.

4      Crown Solicitor at Invercargill v Lang [2012] NZHC 2584.