Commissioner of Police v Cutfield

[2012] NZHC 2593

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-2620 [2012] NZHC 2593

IN THE MATTER OF     an application pursuant to Section 104 of

the Criminal Proceeds (Recovery) Act 2009

BETWEEN  COMMISSIONER OF POLICE Applicant

ANDPAUL EDWARD CUTFIELD First Respondent

ANDCHERRY FRANCES CUTFIELD Second Respondent

Hearing:         5 October 2012

Counsel:         S K Barr for Applicant

J K W Blathwayt for Respondents

Judgment:      5 October 2012

ORAL JUDGMENT OF THE HON JUSTICE KÓS (Application for extension of restraining order)

[1]      The Cutfields are farmers.   They farm at Homeburn Station in the South Wairarapa.  On 15 April search warrants were executed at their property.  As a result of matters found there, the Cutfields were charged in the District Court of cultivation of cannabis plant and possession of cannabis plant for sale.   Charges were subsequently laid indictably.  The initial trial date in July 2012 was vacated as pre- trial applications are still outstanding.   There is an application challenging the admissibility of certain evidence obtained by surveillance and search.  A fresh trial date is yet to be set.

[2]      On 21 September 2011 a without notice restraining order was made.  An on notice application was filed some six days later and is yet to be determined.  The

COMMISSIONER OF POLICE v CUTFIELD & ANOR HC WN CIV 2011-485-2620 [5 October 2012]

order applies to property held in a bank account with Kiwibank and in a Bonus

Bonds account in the names of the Cutfields.

Relevant statutory provisions

[3]      Section 22 of the Criminal Proceeds (Recovery) Act 2009 provides for the making of a without notice restraining order.   Section 37 provides that a restraining order expires on the earlier of either (a) one year after the date on which the restraining order is made or (b) the date of the making or declining of a forfeiture order associated with the same property. However, s 37(2)(b) provides that, in the case of a without notice restraining order, s 37(1) is subject to s 39.   Section 39 governs the duration of a without notice restraining order.  It provides:

(1)       A restraining order made as a result of an application made without notice under section 22 (“restraining order A”) ceases to be in force on the date that is the end of the period of 7 days commencing on the date on which restraining order A is made.

(2)       However, if, before restraining order A expires, an application is made with notice for a restraining order on notice (“restraining order B”) in relation to the same property to which restraining order A relates (whether or not the application also relates to any other property), restraining order A continues in force until the application for restraining order B is finally disposed of.

(3)       An applicant for restraining order B must prosecute the application with all due diligence, and if the applicant does not do so, the court may, on the application of any party to the proceedings, order that the proceedings be struck out.

(4)       If an application is made for restraining order B, the court must, so far as it is practicable and consistent with the interests of justice, ensure that the application is dealt with speedily

Procedural history

[4]      The application for the on notice restraining order, as mentioned, was filed over a year ago, on 27 September 2011.  Initially the Cutfields indicated they did not oppose.   They did seek conditions under s 28.   The applicant would not agree to those conditions.   In light of that  the Cutfields revised their willingness not to oppose.   On 13 December 2011, Ronald Young J adjourned the matter sine die,

noting that the s 28 application was not ready to be heard.  Indeed it has not yet been filed.

[5]      On 20 April 2012 the Cutfields filed a notice of opposition to the on notice application.

[6]      On 8 May 2012 the police sought adjournment of the hearing of the on notice application pending the outcome of Court of Appeal hearings regarding the relationship between criminal proceedings and the Criminal Proceeds (Recovery) Act 2009.  The Cutfields consented to that adjournment.  On 10 May 2012, Ronald Young J again adjourned the proceedings sine die pending the delivery of the judgments.

[7]      The Court of Appeal then delivered judgment in Commissioner of Police v

Wei & Ors[1] on 27 June 2012.[2]

[1] Commissioner of Police v Wei & Ors [2010] NZCA 279.

[2] At [40]–[41].

In our consideration of the appeals, we keep ourselves firmly grounded in the nature of the decision under appeal in each case, namely a decision by a Judge about the time at which an application should be heard. This is a discretionary decision tailored to the facts of each case. It requires the Judge to undertake a balancing exercise assessing the interests of each party, to reach a conclusion as to whether the interests of the justice lie. It is not an area where an appellate Court should be making hard and fast rules.

There is no general rule that civil proceedings must be adjourned if related criminal  proceedings  are  pending.  Equally,  there  is  no  rule  that  a  civil plaintiff is entitled to hearing before an impending criminal trial. In a case where the prosecuting agency is, in effect, the same party as the plaintiff in the  civil  proceeding,  considerations  of  entitlement  of  a  civil  plaintiff  to pursue his or her case without delay are obviously diluted substantially. In our view, the High Court Judges in the decisions under review were right to see the present cases as fact-specific and as calling for a balancing exercise.

Present application and argument

[8]      In accordance with Wei, the police proposed to take no further steps under the

Act until the related criminal proceedings had been determined, as long as a restraining order was in place.  On 29 August 2012 they applied either:

(a)      If the Cutfields consented, for the on notice restraint order to be made for one year, and the proceedings adjourned until completion of the criminal proceedings; or

(b)If the Cutfields did not consent, the extension to the without notice application for restraint for a further three months to enable them to pursue investigative steps under the Criminal Proceeds (Recovery) Act 2009 and for hearing to be set down for the on notice restraint application.

[9]      On 5 September 2012 the Cutfields indicated they did oppose.  Basically their argument and their evidence in support is directed to whether the on notice order should be made.  An affidavit from Mrs Cutfield deposes that the Kiwibank account and the Bonus Bonds account are from lawful and legitimate sources.  I do not go into the detail of that further here, but she believes that the information provided by her, both in the affidavit and separately from the affidavit, should have resolved any further concerns that the police had.

[10]     On 10 September 2012, by consent, the restraining order was extended until

6 October 2012 pending this hearing.

Discussion

[11]     Section 39(2) of the Act provides that a without notice restraining order remains in force until the on notice restraining order is finally disposed of.  There is no strict requirement for the applicant to seek an extension of the order.  The one year limitation in s 37 is expressly subject to s 39.

[12]     In accordance with s 39(2) the without notice restraining order remains in force until the on notice restraining order application is finally disposed of.  For the avoidance of doubt therefore, and for the information of the Official Assignee, the existing without notice order continues in full force and effect.

[13]     Section 39(2) provides that the on notice restraining order must be prosecuted with all due diligence.  Section 39(4) provides the Court must so far as practicable and consistent with the interests of justice ensure that the application is dealt with speedily.  It is open of course to the Cutfields to apply under s39(3) of the Act for an order that the proceedings be struck out on the basis that the police have not pursued the proceedings with all due diligence.  Mr Blathwayt has today indicated that such an application will be made.  Today is not the occasion to deal with the merits of that application. A Judge will deal with that in due course after it is made.

[14]     Mr Blathwayt also indicates his clients’ intention to pursue the issue of the release of some of the funds in the Kiwibank account by way of conditions under s 28 of the Act.  That provides the Court may make orders for by way of condition permitting the use of some otherwise frozen funds to meet  ordinary living and business expenses. Again that application will be dealt with upon filing.

Suppression

[15]     Mr Blathwayt pursued with me the possibility of an order suppressing the details of today’s application.  There is no suppression order made at this stage in the District Court criminal proceeding.  I do not consider it is appropriate in this civil proceeding to take a lead that has not been taken in the District Court.   The civil courts in particular operate with all the glare of publicity that goes with that jurisdiction.  I am not satisfied that it is appropriate in this case to make any order for suppression of what has been discussed in argument before me today or has been discussed in this judgment.

While that is perhaps unfortunate for the Cutfields, it is part of the ordinary civic exposure of a citizen charged with offending.  Of course, it does not follow that the police have, simply because the case has been discussed in this Court, established to any  standard  that  they  have  a  case  against  the  Cutfields.    That  remains  to  be

determined in due course and no one should draw any adverse inference one way or the other in relation to their innocence.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Applicant

WCM Legal, Carterton for Respondents