Commissioner of Police v Burgess
[2015] NZHC 1008
•13 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-002893 [2015] NZHC 1008
UNDER the Criminal Proceeds (Recovery) Act
2009
BETWEEN
COMMISSIONER OF POLICE Applicant
AND
ROBIN ADRIAN BURGESS First Respondent
LLANYS GWEN BURGESS Second Respondent
Hearing: 15 April 2015 Appearances:
M Harborow for Applicant
F Deliu for Mrs Burgess (Second Respondent) No appearance for First Respondent
Judgment:
13 May 2015
(RESERVED) JUDGMENT OF ANDREWS J
[Second respondent's application to discharge/vary restraining orders]
This judgment is delivered by me on 13 May 2015 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
COMMISSIONER OF POLICE v BURGESS & ANOR [2015] NZHC 1008 [13 May 2015]
Introduction
[1] The second respondent, Mrs Burgess, has applied for an order discharging restraining orders made under the Criminal Proceeds (Recovery) Act 2009 (“the Act”) on the grounds that the Commissioner of Police (“the Commissioner”) has unduly delayed taking steps to apply for forfeiture orders, that Mrs Burgess has been deprived and prejudiced by the existence of the restraining orders, and that the restrained property is not tainted. In the alternative, Mrs Burgess seeks an order to vary the restraining orders so as to provide for her reasonable living costs, business expenses and other expenses to be met out of the restrained property, and/or for the restraining orders to be discharged in respect of certain specified property.
[2] The Commissioner opposes Mrs Burgess’ application, on the grounds that the delay in applying for a forfeiture order is explained, and is reasonable, that there are reasonable grounds to believe that the restrained property is tainted that Mrs Burgess has unlawfully benefitted from significant criminal activity, and that Mrs Burgess will not be caused undue hardship if the application is declined.
Background
[3] On 21 April 2010, the Police charged Mr and Mrs Burgess on nine counts of receiving stolen property. On 12 May, 24 May, 2 July, and 24 August 2010, the Commissioner applied for restraining orders against Mr and Mrs Burgess under ss 21, 24 and 25 of the Act. The orders sought were in respect of various items of property (including motor vehicles, a boat, a tractor, and household chattels), jewellery, cash, and the Burgess’ residential property at Taupaki, Auckland. The grounds on which the orders were sought were that the property was tainted property and that Mr and Mrs Burgess had unlawfully benefitted from significant criminal activity (being receiving stolen goods), and that the property sought to be restrained was either owned by, or under the effective control of, Mr and Mrs Burgess.
[4] Restraining orders were made on 17 May, 9 June, 7 July, and 15 November
2010. In each case, orders were made that the property specified in the order was not to be disposed of, or otherwise dealt with, other than as provided for in the order, and
was to be under the custody and control of the Official Assignee pending further orders from the Court.
[5] On 21 February 2011, the Commissioner applied under ss 104 and 106 of the Act for orders that Mr and Mrs Burgess (and two other people) be required to attend for an examination pursuant to s 107 of the Act. Both Mr and Mrs Burgess opposed the application, on the grounds that requiring them to attend an examination before their trials on the criminal charges risked violating their right to silence under the New Zealand Bill of Rights Act 1990. In a judgment delivered on 10 May 2011,
Asher J dismissed the Commissioner’s application.1 The Commissioner’s appeal
against that decision was dismissed in a judgment of the Court of Appeal delivered on 25 September 2012.2
[6] Mr and Mrs Burgess’ trial was originally scheduled to begin in the District Court at Auckland on 22 August 2011. It was then scheduled for four successive dates, and ultimately scheduled to begin on 17 February 2014. However, following discussions, the Crown presented an amended indictment which replaced the original nine counts with one representative count, which alleged that Mr Burgess had received stolen property between 1 January 2008 and 21 April 2010, knowing that it was stolen or being reckless as to whether or not it was stolen. Mr Burgess pleaded guilty to that charge on arraignment on 13 February 2014.
[7] Also on 13 February 2014, the Crown elected not to proceed on the receiving charges against Mrs Burgess, and her name was crossed out on the amended indictment. On 21 May 2014, Mrs Burgess pleaded guilty to a charge laid under the Secondhand Dealers and Pawnbrokers Act 2004, and she was sentenced (fined) on
26 May 2014. She was discharged on the nine counts of receiving included in the original indictment.
[8] Mr Burgess was sentenced in the District Court at Auckland on 21 March
2014, to imprisonment for three years and six months. He appealed against
1 Commissioner of Police v Burgess [2011] 2 NZLR 703 (HC).
2 Commissioner of Police v Burgess [2012] NZCA 436.
sentence, and the appeal was dismissed in a judgment of the Court of Appeal delivered on 31 July 2014.3
[9] On 16 June 2014, the Commissioner again applied for examination orders against Mr and Mrs Burgess. That application was not opposed and orders were made on 7 July 2014.4 While the order provided for Mrs Burgess’ examination to be on 4 August 2014, that date was amended by consent to 15 September 2014, as Mrs Burgess had engaged new counsel, Mr Deliu.
[10] After the restraining orders were made in 2010, they were extended each year. On each occasion, the Commissioner applied for an extension on the grounds that there remained reasonable grounds to believe that the restrained property was tainted, and that Mr and Mrs Burgess owned or had effective control of the property and had unlawfully benefitted from significant criminal activity. On each occasion, Mr and Mrs Burgess consented to the application for extension, through their then
counsel, Mr Speed.5
[11] Mrs Burgess was examined pursuant to the examination order on
15 September 2014, and re-examined on 13 October 2014. Mr Burgess was examined pursuant to the examination order on 11 March 2015.
[12] Mrs Burgess applied for discharge or variation of the restraining orders on
4 November 2014. On 11 December 2014, Thomas J made interim orders, pursuant to which Mrs Burgess was to be paid $800 a week out of the restrained property.6
The order was for the period up to 28 February 2015, after which time the application was to be called again in Court. The interim order has been extended further until the date of this judgment.7
[13] After the hearing, the Commissioner filed an application for forfeiture orders for the restrained property, on 8 May 2015.
3 Burgess v R [2014] NZCA 363.
4 Minute of Woolford J, 7 July 2014.
5 Minutes of Wylie J, 8 June 2011; Potter J, 7 June 2012; Woolford J, 5 August 2013; Fogart y J,
7 June 2014.
6 Commissioner of Police v Burgess [2014] NZHC 3183.
7 Minute of Moore J, 5 March 2015.
Relevant statutory provisions
[14] Before turning to counsel’s submissions, I set out relevant provisions of the
Act.
[15] The purpose of the Act is set out in s 3:
3 Purpose
(1) The primary purpose of this Act is to establish a regime for the forfeiture of property—
(a) that has been derived directly or indirectly from significant criminal activity; or
(b) that represents the value of a person’s unlawfully derived
income.
(2) The criminal proceeds and instrument forfeiture regime established under this Act proposes to—
(a) eliminate the chance for persons to profit from undertaking
or being associated with significant criminal activity; and
(b) deter significant criminal activity; and
(c) reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand
criminal enterprise; and
(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.
[16] Restraining orders were made in this case under ss 24 and 25 of the Act. Section 24 provides:
24 Making restraining order relating to specific property
(1) a court hearing an application for a restraining order relating to specific property may, if the court is satisfied it has reasonable
grounds to believe that any property is tainted property, make an
order that the property (“restrained property”)—(a) is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
(b) is to be under the Official Assignee’s custody and control.
(2) a restraining order may be made under subsection (1) whether or not there is a respondent in relation to whom the restraining order relates.
[17] Section 25 is in similar terms, but provides that an order may be made in respect of:
(a) all of a respondent’s property (including property acquired after the making of the order:
(b) specified parts of a respondent’s property:
(c) all of a respondent’s property (including property acquiredafter the making of the order) other than specifically excluded property.
[18] Section 37 specifies the duration of restraining orders. As relevant to the present application, it provides:
37 Duration of restraining orders and further orders
(1) A restraining order expires on the earlier of the following:
(a) the date that is the end of the period that is 1 year after the date on which the restraining order is made;
(b) the date of the making or declining of a forfeiture order associated with the same property.
[19] Section 41 provides for restraining orders to be extended:
41 Extending duration of restraining order
(1) If a court has made a restraining order, the applicant for that order
may, before the restraining order expires, apply to the court to extend its duration.
(2) If an application is made under subsection (1), the court may order that the operation of the restraining order be extended for a period not exceeding 1 year.
(3) The duration of a restraining order may be extended more than once under this section.
(4) If, before a restraining order would otherwise expire under section
37(1), an application is made to a court under this section and the application is granted, the restraining order ceases to be in force on
the date specified int eh court’s order.
[20] Mrs Burgess’ application to discharge or vary the order was made under ss 28 and 33 of the Act. As relevant, s 28 provides that:
28 Conditions on restraining order
(1) a court may make a restraining order subject to any conditions the court thinks fit including, without limitation, conditions that provide
for the following to be met out of a respondent’s restrained property:
(a) the reasonable living costs of the respondent and any of his or her dependants:
(b) the reasonable business expenses of the respondent:
(c) the payment of any specified debt incurred by the respondent in good faith:
(d) any other expenses allowed by the court.
…
(3) In determining whether or not to make a restraining order subject to a condition, the court must have regard to the ability of a respondent to meet the reasonable living costs, expenses, or debt concerned out of property that is not restrained property.
…
[21] Section 33 provides that the applicant for a restraining order, or a person with an interest in restrained property, may apply for a further order. Section 34 provides:
34 Making further orders
(1) On an application under section 33(1), a court may, if it considers it
appropriate, make further orders in relation to the restrained property (which may, but need not, be an order of any 1 or more of the types referred to in section 35).
…
[22] Section 35 provides (as relevant):
35 Types of further order
Without limiting the generality of section 34(1), a court may, on an
application under section 33(1) make 1 or more of the following further orders in relation to restrained property:
(a) an order varying the restrained property to which a restraining order relates:
(b) an order varying any condition to which a restraining order is
subject:
…
[23] Section 43 of the Act provides that “the Commissioner may apply for a civil forfeiture order”. A civil forfeiture order may be an assets forfeiture order (under s 50), or a profit forfeiture order (under s 55). An assets forfeiture order provides for the forfeiture of tainted property (which is property that has wholly or partly been acquired, or directly or indirectly derived from significant criminal activity), and a profit forfeiture order provides for the forfeiture of the benefits derived from significant criminal activity during the relevant period of criminal activity.
Application for discharge
Submissions
[24] Mr Deliu submitted for Mrs Burgess that it is now close to five years since the first restraining order was made in 2010. He submitted that there is no good reason why the restraining orders should be allowed to remain in place for such a long period of time, when no application for forfeiture has been filed.
[25] Mr Deliu submitted that the restraining orders had been granted pending the
Commissioner’s application for forfeiture orders. He further submitted that
extensions of the orders had been obtained over the years on the basis that the criminal proceedings were still progressing, and the Police investigation was ongoing and the analysis of the extent to which the respondents had benefitted from significant criminal activity was continuing.
[26] As to the criminal proceedings, while submitting that the Act establishes a “non-conviction based” regime for forfeiture, Mr Deliu submitted that the criminal proceedings had been completed with Mr Burgess’ conviction and sentence, and Mrs Burgess’ discharge on the receiving charges. Even if it were to be accepted that the Commissioner was justified in waiting for the criminal proceedings to be completed, Mr Deliu submitted that there is no justification for the Commissioner’s delay following the dismissal of Mr Burgess’ appeal on 31 July 2014.
[27] Regarding the Commissioner’s investigations, Mr Deliu submitted that even if the Commissioner were to file an application for forfeiture promptly, it would take until 2016 for the application to be resolved. He submitted that a restraining order is temporary, or interim, in nature.8 As such the Commissioner, having obtained restraining orders, must act expeditiously, as a “model litigant”. He submitted that there had been no impediment to the Commissioner filing an application for forfeiture. The examination orders were not a statutory pre-condition for an application for forfeiture, and were not crucial to a forfeiture application. In sum, he submitted that the Commissioner was well able to file an application many years
ago. In any event, he submitted, Mr and Mrs Burgess were entitled to exercise their rights to delay the examination order until the criminal proceedings were completed.
[28] Mr Deliu further submitted that if the Court were to conclude that the Commissioner was justified in delaying filing an application for forfeiture before an examination was undertaken, that no longer applied, as the examinations had been completed. Accordingly, he submitted, it was unreasonable, and prejudicial to Mrs Burgess, that the restraining orders continued in existence, notwithstanding that no application for forfeiture had been filed at the time of the hearing.
[29] Mr Harborow submitted for the Commissioner that this is not a case where delay in applying for a forfeiture order justifies discharging the restraining orders.
[30] First, he submitted, the submissions for Mrs Burgess failed to take into account the context of the whole proceeding. Mr and Mrs Burgess had been represented by counsel, Mr Speed, between 2010 and 2014. The Commissioner was prevented from pursuing the application for examination orders (which were acknowledged by Asher J as being on reasonable grounds9) by the judgments of Asher J and the Court of Appeal. Following the judgment of the Court of Appeal, the examinations were put on hold pending completion of the criminal proceedings. No issue was taken by or on behalf of Mr and Mrs Burgess as to waiting for the end
of the criminal proceeding, right through to the end of 2014.
[31] Mr Harborow further submitted that it would have achieved nothing had the application for forfeiture been filed before the criminal proceedings were completed, and the interviews were completed. This is because the forfeiture application could not have been progressed until the Commissioner had all relevant information. He further submitted that Mr and Mrs Burgess’ consent to the extensions to the restraining orders was on the basis that “nothing happened” until the criminal proceedings were completed.
[32] Mr Harborow further submitted that the restraining orders can only be discharged if it is “appropriate” to do so (s 34 of the Act). In the present case, he submitted, discharging the orders would undermine the purpose of the Act, which is to eliminate the chance of Mr and Mrs Burgess benefitting from significant criminal activity.
[33] In this respect, Mr Harborow submitted that the monetary value of the relevant offending exceeds $2 million, while the value of the currently restrained property is less than that. Thus, as matters presently stand, there will be a shortfall between a profit forfeiture order and the property able to meet it. This factor, and the fact that the delay in applying for a forfeiture order resulted from Mr and Mrs Burgess’ delayed criminal proceedings, make it not appropriate to discharge the restraining orders.
Discussion
[34] As the Court of Appeal said in Vincent, “restraining orders are effectively interim orders of limited duration …”.10 The Court went on to note that:11
The explanatory note to the Criminal Proceeds (Recovery) Bill identified the purpose of restraining orders as being “to preserve property while the Crown is gathering evidence to support an application for forfeiture”. They may subsequently lead to forfeiture orders, but that requires the completion of a further process. So, for example, before an assets forfeiture order may be made, the Commissioner must file and serve a further application and the Court cannot make the order unless it is satisfied, on the balance of probabilities, that the relevant property is tainted property.
(references omitted)
[35] In his judgment in Newton v Solicitor-General, in which he declined to award costs in favour of a person affected by a restraining order made under the Act’s predecessor, the Proceeds of Crime Act 1991, Anderson J observed:12
[The purpose of restraining orders] is to preserve property which may become subject to a forfeiture order. Restraining orders may cause inconvenience and disadvantage to people with an interest in the subject property, but their purpose is not deterrence and punishment.
[36] I accept that a restraining order can be highly prejudicial to those affected by it. That effect is no doubt the reason why the making and extension of restraining orders is subject to judicial oversight; as in this case, the restraining orders have been subject to judicial scrutiny on each occasion they have been extended for a further one year period.
[37] Parliament, in enacting the relevant provisions of the Act, and the Judges who have extended the restraining orders in this case, will also have been conscious of the risk that if a restraining order is extended repeatedly, the Commissioner will thereby obtain a de facto forfeiture order without following the prescribed statutory process. An example of scrutiny of this sort is found in the judgment of Robert Young J given in Commissioner of Police v Malcolm, on 5 February 2013. In that case an
application to extend a restraining order over the respondent’s bank account, which
10 Vincent v Commissioner of Police, above n 8 at [45].
11 At [45].
12 Newton v Solicitor-General (2000) 14 PRNZ 190 at [15].
had been in place for three years while criminal proceedings were completed, was granted for a short period, on strict terms.13 His Honour said:14
I am not prepared to extend the restraining order for a further six months. The Police now need to move quickly. The matter has been significantly delayed. I am prepared to extend for one final time, and I stress it must be final, the current restraining order until 31 March 2013. This should be ample time for the Police to make an application for a profit forfeiture order. If they have then done so, a further extension may be necessary until a merits hearing can be held.
[38] While I accept Mr Deliu’s submission that significant delay may justify refusal of further extensions or, in some cases, discharging restraining orders on a respondent’s application, that determination must always be made against the particular facts and circumstances of each case. In this case, the major cause of delay is the Commissioner’s wish to complete examinations of Mr and Mrs Burgess before applying for forfeiture orders, and the Burgess’ successful applications to defer those examinations until the criminal proceedings were completed.
[39] At the Court of Appeal observed in Vincent, restraining orders “preserve property while the Crown is gathering evidence to support an application for forfeiture”. I do not accept Mr Deliu’s submission that the Commissioner could have filed an application for forfeiture before the examinations were undertaken. To the contrary, I accept that if the Commissioner had filed an application for forfeiture, the application would not have contained all relevant information, and the chance of a Court finding that the Commissioner had established a case for forfeiture orders may have been compromised.
[40] I also accept that there is some force in Mr Harborow’s submission that if the Commissioner had filed an application for forfeiture before the criminal proceedings were completed, it could be expected that the Burgess’ then counsel would have sought a stay of the application, on the same “fair trial” grounds on which the
applications for examination orders were successfully opposed.
13 Commissioner of Police v Malcolm [2013] NZHC 132.
14 At [6].
[41] It is also relevant that on each occasion when the restraining orders were extended, it was by consent. Such consent was given on behalf of Mr and Mrs Burgess by counsel experienced in such matters. Mr and Mrs Burgess consented to repeated extensions of the restraining orders until their criminal proceedings were at an end. The Commissioner was entitled to accept their willingness to delay other proceedings while the criminal proceedings were continuing, as indicating that a forfeiture application should not be filed at that time.
[42] I accept that it was reasonable for the Commissioner to delay applying for a forfeiture order until the criminal proceedings were completed, and the examinations of Mr and Mrs Burgess completed. While the period the restraining orders have been in existence in this case is long, I find that that period is reasonable, and justified.
[43] As noted earlier, Mr Deliu submitted that if I were to find that the delay in filing an application for forfeiture until the examinations were completed was reasonable and justified, the Commissioner had unreasonably and unjustifiably delayed filing an application for forfeiture promptly after the examinations were completed.
[44] I do not accept that period between the completion of Mr Burgess’ examination and the hearing before me (at which time no application for forfeiture had been filed) constitutes unreasonable delay. At the hearing before me, Mr Harborow advised that an application for forfeiture would be filed “within four weeks”. That application has now been filed.
[45] The application for discharge of the restraining orders is dismissed.
Application to vary restraining orders
Submissions
[46] In the alternative, Mr Deliu sought an order that, at least, the interim orders made by Thomas J, pursuant to which Mrs Burgess receives $800 a week from the restrained funds, should continue. He further submitted that an order should be
made that the amount should be increased to $1,500 a week. He submitted that nothing had changed since December 2014, and Mrs Burgess still has the same expenses as outlined at that time. He submitted that it is still the case that Mrs Burgess cannot meet her reasonable expenses from unrestrained assets.
[47] Mr Deliu also submitted that an order should be made that the restrained business stock should be released from the orders. He submitted that this would be in the Commissioner’s interest as, if the stock were returned, Mrs Burgess could operate the business. She could be paid a salary, thus enabling the restrained cash to be preserved. He submitted that such an arrangement could be allowed for a six month trial period, then reviewed.
[48] Mr Harborow submitted that the interim order made by Thomas J should not be continued, at any level of payment. He submitted that s 28(3) of the Act makes it mandatory that the Court consider a respondent’s ability to meet living costs out of unrestrained assets. The policy underlying s 28 is that restrained property is not to be used to meet a respondent’s reasonable living costs unless the Court is satisfied that the respondent has no other means of meeting those expenses.
[49] Mr Harborow submitted that Mrs Burgess had not filed sufficient material to support her application for payment towards living expenses, either for the purposes of the hearing before Thomas J, or for the hearing before me. He submitted that the interim order had been made in circumstances where Mrs Burgess had submitted to the Court that she faced the costs of privately funded surgery for breast cancer, and would require a recovery period. In the event, Mrs Burgess had been treated under the public health system, and she has now had a sufficient period for recovery.
[50] Mr Harborow further submitted that it was demonstrated in Mrs Burgess’ cross-examination at this hearing that her evidence is unsatisfactory, and cannot be relied on. In particular, he submitted, Mrs Burgess has not sought support from WINZ, she has not sought to sell unrestrained assets that could be sold, such as a car and jewellery, and she had been “economical with the truth” by not disclosing assets in her application for legal aid. Mr Harborow also referred to evidence given by
Detective Stephen Peat as to telephone discussions between Mr and Mrs Burgess which refer to assets not disclosed by Mrs Burgess.
[51] Mr Harborow accepted that certain items are personal, with sentimental value (such as personal jewellery), and that to sell them would cause hardship to Mrs Burgess. However, to exclude them from the requirement that they be used to meet living expenses there would have to be undue hardship.
[52] Mr Harborow submitted that, as stated in R v Jury, where there are unrestrained assets which can be used to meet expenses, the court expects evidence that all avenues have been explored to liquidate unrestrained assets before provision is made to meet expenses out of restrained property.15 Mr Harborow submitted that there was no such evidence here.
[53] After the hearing, on 30 April 2015, Mr Deliu filed a supplementary memorandum in support of Mrs Burgess’ application for payment of living expenses. The memorandum referred to the judgment of Courtney J delivered on 23 April 2015 in Commissioner of Police v Dotcom.16 Mr Deliu submitted that this decision supported his submission that Mrs Burgess cannot meet her reasonable living expenses out of unrestrained assets, as those assets cannot readily be sold.
[54] Mr Harborow filed a memorandum in response to Mr Deliu’s supplementary memorandum. He submitted that Dotcom is distinguishable, as her Honour excluded certain assets on the grounds that they were “not sufficiently liquid”.17 Those assets were shares which were “blocked from being sold”. Mr Harborow submitted that, in the present case, there was no such impediment to the sale of unrestrained assets.
[55] I accept Mr Harborow’s that Dotcom does not assist in determining
Mr Burgess’ application. The circumstances in Dotcom are completely different from those in the present case..
15 Referring to R v Jury HC New Plymouth M14/99, 11 April 2001 at [24].
16 Commissioner of Police v Dotcom [2015] NZHC 820.
17 At [14].
Discussion
[56] The evidence in support of Mrs Burgess’ application to vary the restraining orders, at the time of the hearing before Thomas J, comprised affidavits sworn by her on 4, 19 and 26 November 2014. Evidence in opposition to the application was given by Detective Stephen Peat, in an affidavit sworn on 4 December 2014.
[57] While concluding that it was appropriate to make an interim award to cover Mrs Burgess’ “basic living costs”, Thomas J also concluded that further consideration of Mrs Burgess’ application was necessary.18 Of particular concern were allegations made by Detective Peat that Mrs Burgess had not disclosed all unrestrained assets in her possession.
[58] Subsequently, Mrs Burgess swore a further affidavit on 28 January 2015, responding to Detective Peat’s evidence of undisclosed assets, and his challenge to her living expenses, as follows:
(a) a Rolex watch (“the watch”) belongs to Mr Burgess, so was not
disclosed as part of her own assets;
(b)an emerald pendant (“the pendant”) belongs to Mrs Burgess’ granddaughter, and is held by Mrs Burgess in trust for her. This is why it was not disclosed.
(c) a Corvette car (“the Corvette”) is restrained property but, in any event, is subject to an agreement for sale, in respect of which a deposit has been paid.
(d)her living expenses have not changed since she applied to discharge or vary the restraining orders. She continues to pay her share of mortgage payments on the family home. While she had not collected receipts for household expenses prior to filing the application, she
annexed receipts for expenses over the period since then.
18 Commissioner of Police v Burgess, above n 6 at [50]–[53].
[59] An affidavit sworn by Louise Brinsden (Mrs Burgess’ daughter) on
20 February 2015 was also filed. Ms Brinsden dealt principally with costs relating to Mr and Mrs Burgess’ business, “Coffee & Gems 2 Go Ltd”.19 After referring to monthly records of income and expenditure, Ms Brinsden concluded that “the business is barely sustaining itself”.
[60] Ms Brinsden also gave evidence that in August 2014 she bought a Harley Davidson motorcycle, referred to by Detective Peat as an undisclosed asset, from her parents. She said this was in order to help Mr Burgess with his lawyer’s fees. Ms Brinsden acknowledged that she does not hold a motorcycle licence, but said that that does not prevent her from owing one.
[61] A financial analyst working for the Police Asset Recovery Unit, Ms Kylie Cairns, gave evidence at the hearing before me, as to her examination of financial records for Dessen Investments Ltd and Coffee & Gems 2 Go. She was cross- examined by Mr Deliu as to the origin of the information reviewed by her, and the duration of the Commissioner’s investigation.
[62] Mrs Burgess was cross-examined. She acknowledged that the watch was valued at $50,000 and that she and Mr Burgess were still married. She said that the pendant was valued at approximately $25,000, and maintained her evidence that it belongs to her granddaughter. She accepted that in a telephone conversation with Mr Burgess on 8 September 2014 she referred to it as “my emerald pendant”, but said that that was because she wears the pendant. She further acknowledged that in the conversation she and Mr Burgess discussed putting both the watch and the pendant up as security for legal services.
[63] Regarding the Corvette, Mrs Burgess accepted that it is not restrained. She said that an agreement was made for it to be sold, after she and Mr Burgess were arrested, and that a deposit of $5,000 was paid by the buyer. She said that the car
was then moved to the buyer’s garage.
19 This was a business established during 2011, after Mr and Mrs Burgess’ former businesses, which traded as “Rob’s Trading Post” and “Lover’s of Yesteryear”, were dissolved. Each of the businesses are, or were, owned by Dessen Investments Ltd.
[64] Mrs Burgess accepted that the car remains registered in her name, and that the deposit has been repaid to the buyer. Mrs Burgess further said that it would require re-registration and a warrant before it could go back on the road, but would then be worth “maybe $20,000”.
[65] Mrs Burgess was questioned as to transactions on her credit card. She said she allowed her children to use the card, but they repaid her. Mrs Burgess further said that over the years she had paid bills and made ends meet by selling antiques and other personal assets.
[66] Mrs Burgess accepted that she had not disclosed having entered into the agreement to sell the Corvette, or that she was a beneficiary of the Burgess Estate Trust, or that she had the pendant, but said she either did not know she had to do so, or did not own the particular items.
[67] In re-examination, Mrs Burgess said that the watch was likely to be worth only about a quarter of its assets value if put on the market. The same, she said, applied to the pendant. Mrs Burgess further said that it would cost some $5,000 to make the Corvette roadworthy. As she did not have that sum, the Corvette is in essence worthless. She further said that she does not have a lot of personal assets left to sell. Finally, Mrs Burgess said that she did not believe she was eligible for any WINZ benefit, although she acknowledged in answer to a question from the Court that she had not in fact made any inquiries.
[68] Prior to the hearing before Thomas J, Mrs Burgess estimated her personal expenses at more than $4,434 a week, and the business expenses at more than
$12,600 a week. While Mrs Burgess annexed to her most recent affidavit some receipts for her expenses, she has not provided any systematic review of her assets or expenses. This makes it difficult to assess her claim that she cannot meet living and business expenses without recourse to the restrained property.
[69] While it is apparent that there are some unrestrained assets (in particular the watch and the Corvette) which could be used to meet Mrs Burgess’ expenses,
I accept that their realisable value is not likely to be as high as their assessed value. Whether it is as low as Mrs Burgess says, I cannot determine on her evidence.
[70] I do not accept that restrained assets should be used for the purposes of the business. The business is run by Ms Brinsden, and Mrs Burgess said that she works in it. Ms Cairns’ evidence was that both sales and purchases have increased over the years, and the overall performance of the business has been consistent. She was of the view that it had improved in recent times.
[71] However, I accept, as did Thomas J, that Mrs Burgess is not able to meet all of her living expenses out of unrestrained assets. Some recourse is needed to the restrained assets. On essentially the same basis as did Thomas J, I have concluded that the payments of $800 a week should continue. Mrs Burgess has not established grounds for any greater allowance.
[72] Accordingly, the order for payment of $800 a week to Mrs Burgess out of the restrained assets continues in effect, until further order of the Court. The application to vary the restraining orders so as to allow any greater payment to Mrs Burgess, or any payment towards the business, is dismissed.
Result
[73] Mrs Burgess’ application to discharge the restraining orders is dismissed. Mrs Burgess’ alternative application to vary the conditions of the restraining orders so as to provide for an increased payment from the restrained assets for living and business expenses is dismissed. However, the order made by Thomas J on
11 December 2014, and continued pursuant to the Minute of Moore J on 28 February
2015, whereby Mrs Burgess is paid $800 a week out of the restrained assets is to continue pending further order of the Court.
Andrews J
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