Commissioner of Police v Cole

[2022] NZHC 2095

ORDER PROHIBITING PUBLICATION OF ANYTHING TENDING TO IDENTIFY THE RESPONDENTS, PENDING FIRST CALL OF THE COMMISSIONER’S FORESHADOWED ON NOTICE APPLICATION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1411

[2022] NZHC 2095

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRANDON ST JOHN COLE

First respondent

MICHAEL MCGREGGOR COLE

Second respondent

Hearing:	On the papers
Counsel:	S M Earl and C R Purdon for applicant
Date of judgment:	23 August 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 23 August 2022 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

COMMISSIONER OF POLICE v COLE [2022] NZHC 2095 [23 August 2022]

[1]                 As duty judge, I have the Commissioner’s without notice application for restraining and further (enter property to seize) orders dated 19 August 2022, seeking to place bank funds, vehicles and a car racing simulator into the hands of the Official Assignee.1

[2]                 The application is supported by 5 August 2022 affidavits from police officers and a forensic accountant, contending the subject assets — in which the father-and- son Coles separately or together have interests — to be derived from the importation and supply of methamphetamine2 and money laundering.3 The core alleged offending is  importation  and  supply  of  nearly  400  kilograms  of  methamphetamine  with  a wholesale value of some $23.5 million. The Commissioner proposes also to bring on notice an application for restraining orders in relation to less disposable assets, including real estate in Auckland’s Kumeū and some $2.5 million in cash seized at Kumeū addresses.

Law

[3]                 I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application, or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.4

[4]                 If I then am satisfied I have reasonable ground to believe the property is “tainted property” — that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity — or the Coles have in any event “unlawfully benefited from significant criminal activity”, I may make a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.5

1      Criminal Proceeds (Recovery) Act 2009, ss 24 and 25.

2      Misuse of Drugs Act 1975, s 6(1)(a) and (c) (maximum penalty: imprisonment for life).

3      Crimes Act 1961, s 243(2) (maximum penalty: 7 years’ imprisonment).

4      High Court Rules 2016, r 7.46(3) and (5).

5      Criminal Proceeds (Recovery) Act, s 50.

Discussion

[5]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.6 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.7

[6]                 Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining and further orders would put the property at relevant risk, at least by disposing of or concealing these liquid or portable assets;

(b)notice of the application for the further order to enable entry of property to seize the restrained assets would unduly prejudice the Commissioner, as showing his hand on the vehicle and simulator restraining orders; and

(c)on the basis of the police officers’ and forensic accountant’s affidavits, I have reasonable grounds to believe both:

(i)the bank funds, vehicles and simulator are tainted property, as acquired or derived in connection with significant criminal activity of importing and supplying methamphetamine and money laundering, or in any event with offending obtaining property with a value exceeding $30,000;8 and

(ii)the Coles have — by acquiring the assets in values far exceeding their declared incomes, seemingly from revenues obtained by

6      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

7      Criminal Proceeds (Recovery) Act, s 6(1).

8      The forensic accountant identifies over $2.5 million in unexplained deposits being received into the Coles’ bank accounts over the seven years from 19 May 2015.

methamphetamine importation and supply and money laundering — unlawfully benefited from such significant criminal activity.

[8]                 I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining and further orders sought.

Result

[9]                 I order in terms of subparas (a) and (b) of paragraph 1 of the Commissioner’s 19 August 2022 application.

Suppression

[10]             As my order is made without notice to the respondents, I prohibit publication of anything tending to lead to their identification, pending the first call of the Commissioner’s foreshadowed on notice application.

—Jagose J