Commissioner of Police v Bradley

[2012] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2011-463-000675 [2012] NZHC 1594

IN THE MATTER OF     an application pursuant to sections 20, 21,

25, 34, 43, 44 and 52 of the Criminal
Proceeds (Recovery) Act 2009

BETWEEN  THE COMMISSIONER OF NEW ZEALAND POLICE

Applicant

ANDAARON MICHAEL BRADLEY First Respondent

ANDBRETT GEORGE ORMOND Second Respondent

ANDWESTPAC NEW ZEALAND LIMITED Third Respondent

Hearing:         5 July 2012

Appearances: C Macklin for Applicant

G Burt on instructions from W Lawson for First Respondent
No appearances by or on behalf of Second and Third Respondents

Judgment:      5 July 2012

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Crown Solicitor, Rotorua. Lance Lawson, Rotorua.

COMMISSIONER OF NZ POLICE V BRADLEY & ORS HC ROT CIV-2011-463-000675 [5 July 2012]

[1]      On 31 October 2011 the Commissioner of Police filed an application for restraining and forfeiture orders against the respondent pursuant to the Criminal Proceeds (Recovery) Act 2009.

[2]      The application related to:

(a)       the land and buildings at 16 Jameson Avenue, Rotorua, owned by the second respondent but occupied by the first respondent;

(b)      the  assets  of  the  first  respondent’s  company,  Cutting  Edge  2008

Limited, namely, a Toyota Ace van, registration UH6235, two ride on lawnmowers, and two trailers;

(c)       a Mitsubishi Canter light truck, registration YH6523;

(d)cash of $104,370 located and seized by Police at 16 Jameson Avenue, Rotorua, during the search of that address on 10 August 2010; and

(e)       all funds in a Bonus Bond account under the Bond holder number

9903008 to value of $8,040.

[3]      The grounds on which the orders were sought were that the first respondent, Mr Bradley, had unlawfully benefited from significant criminal activity, namely, the supply of methamphetamine and the possession of methamphetamine for supply and that the property sought to be restrained was tainted property.   Restraining orders were made by Priestley J on 25 October 2011.

[4]      The second respondent had initially filed a notice of opposition but by notice of discontinuance dated 13 December 2011, he stated he did not wish to proceed with his defence of the application by the Commissioner of Police.

[5]      The Commissioner has also advised Westpac New Zealand Limited, the third respondent, that it sought to restrain and forfeit the land and buildings at 16 Jameson

Avenue, Rotorua, subject to the rights, title and interests of Westpac as registered mortgagee of the property being expressly excluded from restraint or forfeiture.  On that  basis,  the  third  respondent  neither  consents  nor  opposes  the  application  to restrain or forfeit the property and abides the decision of the Court.

[6]      The first respondent continued to oppose the application on the basis that:

(a)      Although the property at 16 Jameson Avenue, Rotorua, was owned by the second respondent, he had an equitable interest in it;

(b)The property described in the application was not tainted.  The funds used to purchase the property and the money located at 16 Jameson Avenue, Rotorua, were accumulated by legitimate means;

(c)      The first respondent’s only significant criminal activity related to the period of 22 July 2010 to 10 August 2010;

(d)There  was  no  evidence  to  support  the  contention  that  the  first respondent  was  involved  in  or benefited from  significant  criminal activity at the time the allegedly tainted property was acquired;

(e)      The first respondent would suffer undue hardship as a result of an order for forfeiture.

[7]      The application was set down for a day’s hearing on 5 July 2012.  On 4 July

2012 a memorandum of counsel was received regarding a proposed settlement of the application for forfeiture. The parties proposed settlement on the following terms:

Property Forfeited by Consent

(a)       The following property is forfeited by consent, pursuant to s 50 of the

Criminal Proceeds (Recovery) Act 2009 (Act):

(i)All the land and buildings of 16 Jameson Avenue, Rotorua, described   in   the   certificate   of   title   SA  39C/994   South

Auckland Land Registration District being 703 square metres more  or  less  on  Lot  193  Deposited  Plan  South  Auckland

10334; and

(ii)      Cash $104,370:- located and seized by Police at 16 Jameson

Avenue,  Rotorua,  during  the  search  of  that  address  on  10

August 2010.   This money is currently held by the Official

Assignee.

(b)This order is subject to the secured interests of the third respondent in the property specified at (a)(i) above.

Property Retained by the First Respondent

(c)       By consent, Mr Bradley is to retain the following property:

(i)       Assets of the first respondent’s company, Cutting Edge 2008

Limited, as set out in the company accounts for the year ended

31 March 2009, namely:

1.  Two   ride   on   mowers   described   in   the   depreciation schedule as an Oleo Mac Ride On Mower and Ride On lawnmower; and

2.  Two  trailers  described  in  the  depreciation  schedule  as

Trailer and Lawnmower Trailer.

(ii)      Mitsubishi Canter light truck, registration YH6523.

(iii)All  funds  in  Bonus  Bonds  account  under  the  Bond  holder number 9903008.

Other Terms

(d)All  proceedings  in  respect  of  the  Toyota  Ace  van,  registration UH6235, are discontinued.  The van was never seized by the Official Assignee.

(e)       Pursuant to s 35(e)(v) of the Act, the land and buildings specified at

(a)(i) above are to be sold immediately.

(f)      There are no issues between the parties as to costs.   Costs will lie where they fall.

[8]      Section 95 of the Act provides:

(1)      The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)      A  settlement  does  not  bind  the  parties  unless  the  High  Court approves it.

(3)      The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)      the purposes of this Act; and

(b)      the overall interests of justice.

[9]      The approval by this Court of a proposed settlement is not a rubber stamping exercise.  Parliament has entrusted the Court with a supervising jurisdiction aimed at ensuring that settlements are consistent with Parliament’s intent in enacting the statute.

[10]     Having read the documents filed with Court, I am satisfied that approving the settlement is consistent with the purposes of the Act and with the interests of justice because:

(a)      The substantial assets listed in the initial application are to be forfeited to the Crown.  This is the cash sum of $104,370 as well as whatever equity remains  in  the  land  and  buildings  of  16  Jameson Avenue, Rotorua, after repayment of the Westpac mortgage.

(b)The retention by the first respondent of the assets of his property maintenance business will enable him to resume work upon release from prison.  There is also a real dispute about where the money came from to purchase the business, with documentation from third persons attached to the first respondent’s affidavit evidencing the advance of funds from them to the first respondent.

(c)      Although the bonus bonds are to be retained by the first respondent, I am advised that he will be required to make a contribution to his legal aid costs from these funds.

(d)There will be a considerable saving of time and especially cost with the settlement.

[11]     Accordingly, I am satisfied that the settlement provides for the forfeiture of the property representing the value of the unlawfully derived income and, in the circumstances of the case, it is in the overall interests of justice.

[12]     There will be orders in  terms of the draft order submitted to Court this morning, which repeats the terms of the proposed settlement set out in [7] above.

Woolford J