Commissioner of Police v Brown

[2014] NZHC 1641

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-001045 [2014] NZHC 1641

BETWEEN

THE COMMISSIONER OF THE NEW

ZEALAND POLICE Applicant

AND

CHRISTOPHER PHILLIP RONALD BROWN

First Respondent

TINA MARIA PEDLEY Second Respondent

Hearing:	(On Papers)
Judgment:	22 July 2014

JUDGMENT OF WHATA J

[1]      In my judgment of 14 May 2014 I found that Mr Brown was, on the balance of probabilities involved in the sale of cannabis over the period September 2011 to April 2013.1   I was satisfied that this amounted to significant criminal activity.  I also considered that the Toyota Hilux vehicle and the Bonus Bonds referred to in the judgment were tainted property, but I was not satisfied that the Triumph motorcycle was purchased by the proceeds of cannabis sale.

[2]      I turned to examine whether or not a profit forfeiture order for the sum of

$82,273.66  was  appropriate  as  sought  by  the  Commissioner  of  Police.    This proposed order related to estimated profits in a three year period March 2010 to April 2013.   I was not satisfied about this.   Rather, I concluded that any profit forfeiture order needed to relate to profits in the period September 2011 to the date of seizure.   I then invited submissions on the issue of the quantum of any profit

forfeiture.

1      The Commissioner of the New Zealand Police v Brown and Pedley [2014] NZHC 990 at [29].

THE COMMISSIONER OF THE NEW ZEALAND POLICE v BROWN [2014] NZHC 1641 [22 July 2014]

[3]      Counsel have now filed a joint memorandum.  They propose forfeiture of the Toyota Hilux and Bonus Bonds and profit forfeiture orders following sale of the Triumph motorcycle.  Counsel then posit:

12.In the event the proceeds from the sale of the Triumph motorcycle exceed the maximum recoverable amount, the excess proceeds will be returned to Mr Brown.

13.In the event the proceeds from the sale of the Triumph motorcycle do not cover the maximum recoverable amount, the Commissioner has agreed to a settlement of the profit amount that equates to the value of the proceeds from the sale of the Triumph motorcycle.

[4]      They then seek the following outcomes:

a.        The asset forfeiture orders regarding the Toyota Hilux and the Bonus

Bonds are to be sealed;

b.In accordance with the consent contained in the joint memorandum, the Official Assignee is to immediately commence the sale process for the Toyota Hilux and otherwise retain the proceeds in accordance with his obligations set out at s82 of the Act;

c.The profit forfeiture order is to be formally adjourned pending the sale of the Toyota Hilux;

d.The  Commissioner  to  file  either  an  amended  profit  forfeiture application (if the situation set out at [12] of the joint memorandum occurs) or alternatively a memorandum confirming settlement (if the situation set out at [13] of the memorandum occurs) when the sale proceeds of the Toyota Hilux are known;

e.The triumph motorcycle is to be the subject of a restraining order with an immediate sale order.

[5]      I consider that the parties have identified a sensible solution.   The orders sought are approved.  For completeness I consider that the orders are consistent with the purposes of the Act and are in the overall interests of justice.

[6]      There shall be orders in terms of [4] accordingly.

Solicitors:

Raymond Donnelly & Co, Christchurch

R G Glover, Christchurch