Commissioner of Police v Britton

[2019] NZHC 11

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2016-488-000114

[2019] NZHC 11

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TONY MICHAEL BRITTON

First Respondent

KATRINA ANNE BRITTON

Second Respondent

Hearing:	16 January 2019
Appearances:	K Eastwood for Applicant Respondents in person
Judgment:	16 January 2019

ORAL JUDGMENT OF POWELL J

Solicitors:           Meredith Connell, Auckland Copy to:  Respondents

COMMISSIONER OF POLICE v BRITTON [2019] NZHC 11 [16 January 2019]

[1]                 On 18 January 2017 restraining orders were made under the Criminal Proceeds (Recovery) Act 2009 in respect of:

(a)a property at 213 Peach Orchard Road, Whakapara; and

(b)cash in the sum of $5,335.00 located on the first respondent Mr Britton at the time of his arrest in 2015.

[2]                 The restraining orders were extended for a further year on 20 December 2017 and are currently due to expire on 18 January 2019.

[3]                 Despite some two years elapsing no steps have been taken by the Commissioner of Police to apply for a civil forfeiture order in respect of either the property or the cash. Instead a without notice application for an extension of the restraining orders for a further year was filed by the Crown Solicitor in Whangarei on 14 December 2018. Toogood J declined to grant the order without hearing the respondents’ position and directed that the application would be put into the Duty Judge list this week.

[4]                 In the meantime it appears that the applicant Commissioner was not actually aware of the application to further extend the restraining orders and in fact arranged for a change of representation for the applicant to the Crown Solicitor at Auckland, and for its new counsel to file their own application for a further extension of the restraining orders pending an application for civil forfeiture over the property and cash.

[5]                 The applications for extension have now been served on the respondents who have both filed notices and affidavits in opposition, with both respondents noting that the two years that the assets have been restrained were enough, and have raised some substantive issues with regard to any future forfeiture application.

[6]                 Having looked at the file it is clear that the lack of progress over the last couple of years is unsatisfactory and indeed has been reflected in the Commissioner’s moves to instruct new counsel.

[7]                 As things stood on the eve of the hearing today the Commissioner was simply seeking an extension of the restraining orders until a civil forfeiture application could be progressed. However, immediately before Court discussions between the Commissioner and the respondents have led to substantive agreement on the outcome of a substantive civil forfeiture application, with a view to settling that substantive application. What is proposed is that the respondents will consent to the forfeiture of the cash amount but that the restraining order over the Peach Orchard Road property can be rescinded by consent.

[8]                 As there is in fact no civil forfeiture application before the Court the parties invite me to make the orders by consent on what is in effect an oral application. Following a discussion with Ms Eastwood over what is proposed I am satisfied that such an approach is not precluded by ss 43–45 of the Act. Despite this I have given Mr and Mrs Britton the option seeking further legal advice on the proposed settlement and working with Ms Eastwood to document the settlement which could then be implemented by the Court. The respondents, through Mrs Britton, have however indicated clearly that they wish to proceed this morning if at all possible, a course of action I understand given the length of time that has elapsed since the restraining orders were first made. Having considered the matter I conclude it is appropriate to proceed on the basis of the oral application discussed above.

[9]                 I also conclude having heard from Ms Eastwood and having read the documents on the file, including the notices of opposition and affidavits filed by Mr and Mrs Britton that the proposed settlement is appropriate in terms of s 95(3) of the Act.

[10]              Taking these various matters together I therefore make the following orders by consent:

(a)I approve the settlement of the oral civil forfeiture application pursuant to s 95(3) of the Criminal Proceeds (Recovery) Act 2009;

(b)an assets forfeiture order is made pursuant to s 50 of the Act of the sum of $5,335.00 (plus any interest accruing thereon) located on Mr Britton at the time of his arrest, so that the property:

(i)vests in the Crown absolutely; and

(ii)is in the custody and control of the Official Assignee;

(c)an order rescinding the restraining orders over the property at 213 Peach Orchard Road, Whakapara, being Lot 1 Deposited Plan 189055 in Certificate of Title NA118D/770 registered to Tony Michael Britton and Katrina Anne Britton and subject to mortgage 6761644.1 to ANZ National Bank Ltd, and directing the Official Assignee to remove the restraining orders off the Certificate of Title;

(d)the two extant applications for extension of the restraining orders are dismissed;

(e)costs are to lie where they fall; and

(f)in view of the somewhat informal nature of the substantive application this morning leave is reserved for either party to apply to the Court for any further or consequential orders that may be necessary to give effect to the settlement or otherwise address any issues that have not hitherto been considered.

Powell J