IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002149
[2024] NZHC 2392
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
WAYNE STEPHEN DOYLE
First Respondent
HARATA RAEWYN PAPUNI
Second Respondent
Hearing: 9-13, 16-18, 20, 24-26 October, 1-2 and 6 November 2023;
27 February 2024 and 16 July 2024
Further submissions: 7 August 2024Appearances:
M R Harborow and C R Purdon for Applicant
R M Mansfield KC and S L Cogan for Respondents, R M Hurliman (16 July 2024)
Judgment:
26 August 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 26 August 2024 at 4.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..
COMMISSIONER OF POLICE v DOYLE & OR [2024] NZHC 2392 [26 August 2024]
Introduction 1
Factual background 11
Legal retainers 53
History of these proceedings
The pleadings 15
Application to vary restraining orders over the legal retainers 59
The statutory scheme
The regime generally 67
Significant criminal activity 71
Profit forfeiture orders 75
Reverse onus 78
The Commissioner’s application 80
The evidence 86
The issues 93
Overview of the respective cases
The Commissioner’s case 94
The respondents’ case 95
ANALYSIS AND DECISION
Admissibility objections 96
Hearsay 98
Rule 7.30 in the context of originating applications (r 19.10) 106
Discretion under r 7.30 123
Admissibility under s 18 134
Business records – s 19 152
Section 165 of the CPRA 156
Challenge to the expert evidence of the police officers 157
Challenge to the conclusory/submission nature of the evidence 166
Unlawfully benefitting from significant criminal activity 171
The role of Mr Doyle 172
Is the Head Hunters a criminal organisation? 188
Is the TWTTIN Trust a front for the Head Hunters? 194
The Commissioner’s s 7 case 209
Mr Doyle’s criminal history 211
Manufacture and supply of controlled drugs 226
Operation Twickers 228
Mr Tony Spice, Mr Stephen Daly and Mr Tau Daly 236
Operation Two Tonne 236
Operation Ark 243
Operation Easter 247
Operation Bunk 252
Operation Genoa 259
Operation Gakarta 263
Operation Sylvester 267
Operation Arrow 275
Operations Nest Egg and Parore 278
Property-related offences 282
Mr Steven Tainui – 2010 283
Operation Morepork 286
Operation Magnet 291
Operation Clarence 293
Operation Salt 300
Ghost unit 305
Fraud-related offending to deceive MSD 308
Money laundering and receiving 317
Rent deposits to the TWTTIN Trust 323
Koha and donations to the TWTTIN Trust 327
Fight night and lottery sale deposits to the TWTTIN Trust 334
Loans to Head Hunters and loan repayments to the TWTTIN Trust and other Doyle entities 342
Unexplained deposits 363
Misappropriation of Mr Duncan McFarlane’s property 367
Conclusion on knowingly benefitting – s 7 382
Legal retainers 388
Legal framework – s 28 394
Issue (a) – How to deal with the two applications 400
Issue (b) – The effect of the agreements in the disputed emails 405Issue (c) – Ability to access unrestrained property 408
Issue (d) – Conclusion on variation application 417
Tucker & Co 421
Dominion Law 425
Domestic transfers 431
Name suppression – solicitors and counsel 437
Profit forfeiture orders 443
232 Marua Road 451
13 Russell Street (Russell Street Trust) 467
44 Seabrook Avenue (Russell Street Trust) 472
159 Penrose Road 479
39 Tunis Road 486
East 88 Finance (bank funds) 488
TWTTIN Trust bank funds 495
232 Marua Road cash 504
Multivan 511
What is the value of the benefit(s) 512
What is the maximum recoverable amount against Mr Doyle and Ms Papuni? 520
Result 522
Introduction
[1] The Commissioner of Police applies for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the CPRA). This includes a profit forfeiture order against Mr Wayne Doyle (Mr Doyle) in the sum of $12,336,380 and a joint and several profit forfeiture order against Mr Doyle and Ms Harata Papuni (deceased) in the sum of $2,906,944.60. The Commissioner also seeks orders that some five properties, together with cash and other assets, be disposed of to satisfy the profit forfeiture orders. This includes the property at 232 Marua Road, Mount Wellington, Auckland (232 Marua Road),1 said to be the headquarters of the influential East Chapter of the Head Hunters Motorcycle Club (Head Hunters).
[2] The Commissioner alleges that Mr Doyle is the president and senior leader of the Head Hunters. The Head Hunters is said to be an organised criminal group engaging in drug dealing and violent property offending for profit. The Commissioner says that the rules and customs of the Head Hunters require members and associates to pay a portion of their criminally derived earnings to senior members. The role of Mr Doyle in the Head Hunters is a critical issue in this case.
[3] At the heart of the Commissioner’s case is s 7 of the CPRA, namely the allegation that Mr Doyle and Ms Papuni unlawfully benefitted from significant criminal activity. In defending that claim, the respondents say that they display no apparent personal lifestyle, access to cash, and/or accumulation of assets establishing that they have profited from significant criminal activity.
[4] Mr Doyle has a significant criminal history. He has convictions for murder, serious violence offending, and for supplying and conspiring to supply the class A controlled drug LSD. However, since his release from prison in 2001, Mr Doyle has not been charged with or convicted of any further criminal offence.
1 Described in record of title NA3D/177, with the registered owner being East 88 Property Holdings Ltd. However, East 88 Property Holdings Ltd was formerly known as Dransfield Property Holdings Ltd and, accordingly, Dransfield Property Holdings Ltd is recorded on the record of title for 232 Marua Road as the registered proprietor. This is because, although the company’s name was changed to East 88 Property Holdings Ltd on 27 January 2004, the record of title was not updated.
[5] Unlike other civil forfeiture cases, the Commissioner’s case does not rely on the underlying convictions of Mr Doyle. Rather, the Commissioner alleges that Mr Doyle has unlawfully benefitted from a variety of significant criminal offending conducted by others – in particular, by patched Head Hunters. The overarching issue in this case is whether the Commissioner has proven on the balance of probabilities that Mr Doyle “knowingly, directly or indirectly, derived a benefit from significant criminal activity”.2 This requirement of knowingly benefitting from significant criminal activity is a critical element under s 7.
[6] Numerous affidavits (over 70) and documents have been filed in support of the Commissioner’s case. This is a circumstantial case covering a substantial period of Mr Doyle’s life. It is necessary to take into account the totality of the evidence.3 This includes drawing inferences from my findings about Mr Doyle’s role, his undisputed long association with the Head Hunters and the multiple criminal convictions of many of its senior, patched members.
[7] In seeking to establish the critical element of knowingly benefitting from significant criminal activity under s 7, the Commissioner’s case depends, in a significant way, upon out of court statements (i.e. hearsay) by members and associates of the Head Hunters. This includes intercepted communications. The Commissioner also relies upon the expert opinion evidence of senior police officers. I address the respondents’ objections to the admissibility of evidence (particularly hearsay and expert opinion evidence) as part of this judgment.
[8] The asset disposal orders sought relate to what the Commissioner says are the “Doyle entities” (of which there are six).4 These consist of trusts and companies over which it is said Mr Doyle exerts a controlling influence and in which he possesses a financial interest. The Commissioner says that the most effectively utilised Doyle entity is the That Was Then This Is Now Trust (TWTTIN). The TWTTIN Trust is a charitable trust that operates from 232 Marua Road. The Commissioner says the TWTTIN Trust is synonymous with, and promotes the interests of, Mr Doyle and the
2 Criminal Proceeds (Recovery) Act 2009 (CPRA), s 7.
3 See Commissioner of Police v de Wys [2016] NZCA 634 at [9]–[10] and [21]–[22]; and
Commissioner of Police v Law [2021] NZCA 517 at [23].
4 The term “Doyle entities” is employed for ease of reference only.
Head Hunters, and that it functions as a more palatable and publicly acceptable face of the Head Hunters.
[9] The relationship between the TWTTIN Trust and the Head Hunters, and whether Mr Doyle had effective control (as an interest in property) over the property held by the entities,5 are further issues I need to address.
[10] This judgment also addresses the respondents’ application to vary restraining orders made in respect of legal retainers (i.e. funds held in the trust account of Mr Doyle’s solicitors). The Commissioner seeks substantive forfeiture orders in relation to those legal retainers. The respondents’ application for variation was filed in December 2023, after the conclusion of the trial. My need to address that application has been the principal reason for the lengthy delay in the delivery of this judgment.
Factual background
[11] Attached as Schedule 1 is a comprehensive chronology. It begins in the early 1970s when Mr Doyle was first convicted of burglary6 and continues through until February 2022 when the Commissioner obtained the restraining orders in respect of the legal retainers. The Commissioner says that these legal retainers are derived from criminal offending and other proceeds of crime.
[12] In a circumstantial case such as this, a detailed chronology is key to understanding and assessing the multiple strands of the Commissioner’s case. The drawing of the critical inferences involves an assessment of the combined force of all the circumstantial evidence over a lengthy period.7
[13] Attached as Schedule 2 is a list of the patched Head Hunters named in evidence. Many of them are associates and/or friends of Mr Doyle.
5 CPRA, s 17A (formerly s 58).
6 Mr Doyle has six prior District Court convictions and six earlier Youth Court notations.
7 See Commissioner of Police v de Wys [2016] NZCA 634 at [9], where Katz J held that circumstantial evidence derives its force from the involvement of a number of factors that independently point to a particular factual conclusion. The analogy that is often drawn is that of a rope: any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so.
[14] Attached as Schedule 4 is a table of the restrained property owned by the Doyle entities. This includes 232 Marua Road, owned by the company East 88 Property Holdings Ltd (East 88 PHL).
[15] I set out below a summary of some of the key events. Further detail is provided in the comprehensive chronology.
[16] Between approximately 1974–2002, Mr Doyle was in a relationship with Ms Papuni. Ms Papuni is the mother of some of Mr Doyle’s children, including Ebony Doyle and Cassino Doyle. Ms Papuni passed away on 27 August 2023.
[17] In November 1978, Mr Doyle was convicted of injuring with intent to cause grievous bodily harm and sentenced to four years and six months’ imprisonment. In December 1978, he was convicted of wounding with intent to cause grievous bodily harm and sentenced to a cumulative term of four months’ imprisonment.
[18] In September 1985, Mr Doyle was convicted of murder and sentenced to life imprisonment. The victim was a member of another gang, namely the King Cobras. Mr Doyle was one of three members of what was described by the Court of Appeal as “the Auckland ‘Headhunters’ gang”.8 One of the other members was Mr Graham “Choc” Te Awa.
[19] Between 13 September 1985 and 1 June 1994, Mr Doyle was in prison serving his sentence for murder.
[20] In September 1987, Mr Doyle (while in prison) inherited a one-sixth share in 13 Russell Street, Freemans Bay, Auckland (13 Russell Street),9 from his father, Mr Walter Doyle.
[21] In November 1989 (also while Mr Doyle was in prison), Ms Papuni acquired 159 Penrose Road, Mount Wellington, Auckland.
8 R v Doyle CA234/85, 19 December 1986 at 1.
9 Described in record of title NA528/270, with the registered owners being Mr Doyle, Cassino Doyle, Ebony Doyle, and Grant Doyle.
[22] In January 1998, Mr Doyle purchased, for $50,000, a one-sixth share in 13 Russell Street held by his sister, Charmaine.
[23] In May 1998, Mr Doyle was convicted of supplying and conspiring to supply the class A drug, LSD. He was sentenced to six years’ imprisonment.
[24] Since 1998, Mr Doyle’s exclusive source of declared income has been Department of Social Welfare/Ministry of Social Development (MSD) benefits. Since that time, he has received a total of $628,581.07 in benefits ($275,973 of which was received during the profit forfeiture order period). Attached as Schedule 3 is a summary of the MSD benefits received by Mr Doyle from May 1994 to December 2017.
[25] Between 14 May 1998 and 20 March 2001, Mr Doyle was in prison serving his sentence for supplying and conspiring to supply LSD.
[26] In October 2000, Mr Doyle acquired a half-share in 13 Russell Street, jointly with his son (Cassino Doyle), as executor of Mr Walter Doyle’s estate upon Mr Walter Doyle’s death. Mr Doyle was in prison at the time.
[27] As noted, since his release from prison in 2001, Mr Doyle has not been charged with, nor convicted of, any further criminal offending. He remains on parole for life but at no time has any application been made by the Crown to recall him and to require him to complete his life sentence.
[28] Mr Doyle says that, at the Parole Board hearing before Heron J and others in 2001, he “entered into an agreement with Justice Heron” that upon his release he would never be president of the “HHMC” and he claims to have “stuck to this agreement”.
[29] In November 2001, following his release from prison, Mr Doyle settled the TWTTIN Trust and appointed Mr David Dunn and Mr Lee Bell as founding trustees. The TWTTIN Trust operates from 232 Marua Road. It is a charitable trust with its registered address recorded as 232 Marua Road. As noted, the Commissioner says
that the TWTTIN Trust is synonymous with and promotes the interests of Mr Doyle and the Head Hunters. The Commissioner claims that in essence the TWTTIN Trust functions as the more palatable, publicly acceptable “face” of the Head Hunters.
[30] The property at 232 Marua Road is a large, three-storey building. On the ground floor is a gymnasium with weights and exercise machines, with an adjacent open courtyard with a swimming pool. The gymnasium is very well equipped. There are CCTV cameras throughout the building, and it has nine bedrooms. There are signs on the walls paying tribute to deceased or longstanding Head Hunters. One sign reads “In Bird We Trust”. That is a reference to William “Bird” Hines. The Fight Club 88 Boxing Gym is located in the building (upstairs) and there is merchandise available to purchase. There is also a large kitchen and a living room upstairs with TV screens and leather couches. A prominently displayed sign in the gym area reads “Big Hard and Strong is All Good”. The property has a current capital value of $4.1 million.
[31] In May 2002, Mr Doyle acquired 39 Tunis Road, Panmure, Auckland.10 That same month, he settled the Anglo Pacific Bloodstock Trust (AP Bloodstock Trust) (with the trustees being himself, Ms Papuni, and Mr Stewart Reid of Walter Gollan Ltd (Gollan)).11 On the same day, the properties at 39 Tunis Road and 159 Penrose Road were transferred into the ownership of the AP Bloodstock Trust.
[32] In November 2002, Mr Doyle incorporated East 88 Property Holdings Ltd. That company then purchased 232 Marua Road. Mr Doyle is the sole director, principal shareholder, and sole signatory to the company’s bank accounts. East 88 PHL is the current registered proprietor of 232 Marua Road.
[33] In August 2003, East 88 Finance Ltd (East 88 Finance) was incorporated by Mr Kevin Smith, a solicitor. He was the sole director and shareholder and held shares on a bare trust on behalf of Mr Doyle. Mr Doyle had effective control of the bank accounts held by East 88 Finance from September 2003 and used funds in the entity’s bank accounts to provide unlawful loans to members and associates of the Head
10 Described in record of title NA37A/47, with the registered owner being Mr Doyle, Ms Papuni, and Mr Stewart Reid.
11 Walter Gollan Ltd trades as Gollan & Co Finance.
Hunters, in breach of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 and Anti-Money Laundering and Countering Financing of Terrorism Act 2009, as will be discussed further below.
[34] In September 2005, Mr Doyle settled the Doyle Trust and transferred his 1,000 shares in East 88 PHL to the Doyle Trust. On the same day, all other shareholders of East 88 PHL (except Mr McFarlane) transferred their shareholding (five per cent each) into new trusts and named Mr Doyle as a trustee in each instance.
[35] Between June 2005 and December 2020, the Police carried out a number of investigations into methamphetamine and other serious criminal offending by patched members and/or associates of the Head Hunters, or persons otherwise associated with Mr Doyle. Many of these operations resulted in criminal convictions. The Commissioner alleges that Mr Doyle was implicated in this offending and/or knowingly and significantly benefitted from it. Some of those key operations are summarised below and further detail is also provided in Schedule 1.
[36] Police Operation Twickers, an investigation into methamphetamine offending, was carried out in 2005 and 2006. The operation resulted in the conviction of Mr Dwayne Marsh, a patched Head Hunter, for conspiring to manufacture methamphetamine. He was sentenced to 10 years’ imprisonment. Mr Dunn, a founding trustee of the TWTTIN Trust, was convicted of three charges of offering to supply methamphetamine and sentenced to one year and six months’ imprisonment.
[37] In September 2006, Mr Doyle settled the Russell Street Trust (Russell Street Trust) and was its sole trustee. In November 2006, he appointed two new trustees, namely his children, Cassino and Ebony Doyle. On the same day, Mr Doyle’s one-third share of 13 Russell Street was sold to the Russell Street Trust.
[38] In September 2007, Mr Doyle acquired 44 Seabrook Avenue, New Lynn, Auckland (44 Seabrook Avenue).12 He was the sole registered owner.
12 Described in record of title 317634, with the registered owner being Mr Doyle.
[39] In September 2008, the Court of Appeal gave judgment in R v Hill,13 a case in which Mr Joseph Hill was convicted of possession of the class A drug methamphetamine for supply. Arnold J noted that the Police had executed a search warrant in respect of a house occupied by Head Hunters. Mr Hill was living there at the time. In a bedroom, the Police found bags containing 6.3 grams of methamphetamine.
[40] In April 2010, Mr Doyle appointed Mr Hines, Mr David O’Carroll, and Mr Graeme O’Sullivan as further trustees of the Doyle Trust. Both Mr Hines and Mr O’Carroll are patched Head Hunters.
[41] In January 2011, the Police carried out Operation Morepork, being an investigation into the kidnapping of Mr X at the Takapuna Motel by patched East Chapter Head Hunters (Mr Stephen Daly and Mr Te Here Maaka) and a subsequent robbery. The resulting charges were dismissed because the complainant, Mr X, departed New Zealand before trial.
[42] In March 2011, Police carried out Operation Two Tonne, being an investigation into the supply of methamphetamine by patched Head Hunters. This resulted in the convictions of Mr Bryan Collett and Mr Dunn, both patched Head Hunters and former TWTTIN Trust trustees. Mr Collett pleaded guilty to charges of possession of cannabis for supply and unlawful possession of a restricted weapon. Mr Dunn pleaded guilty to possession of methamphetamine and utensils. Both were sentenced to community work.
[43] Between February and November 2011, the Police carried out Operation Ark, being an investigation into the importation, production and distribution of classes B and C controlled drugs. This resulted in the convictions of Mr Jamie Cameron and Mr Christopher Chase – both associates of the Head Hunters. Mr Cameron was convicted on a representative charge of importing a class C controlled drug, and 12 charges of selling a class C controlled drug. He was sentenced to eight years’
13 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
imprisonment.14 Mr Chase was convicted on two charges of importing a class C controlled drug and 12 charges of selling a class C controlled drug. He was sentenced to 10 years’ imprisonment.15
[44] In 2014, the Police carried out Operation Easter, being an investigation into the manufacture and supply of methamphetamine by patched Head Hunters. This included Mr Brownie Harding, Mr Jayden Hura, Mr Anthony Mangu, Mr Kiata Sonny Pene and Mr Elijah Rogers. Mr Brownie Harding’s son, Mr Evanda Harding, a Head Hunters associate, was also involved.16 Mr Brownie Harding pleaded guilty to six charges of manufacturing methamphetamine and was sentenced to 28 years and six months’ imprisonment.17 In sentencing Mr Brownie Harding, Moore J noted that the 11 charges Mr Harding faced related to the “massive methamphetamine manufacturing and distribution network which [he] masterminded”.18 His Honour noted that the manufacturing operation produced at least 6.5 kilograms of methamphetamine.19 He also noted that it was likely that a good deal more than that was produced. At the time, it was the largest single case of methamphetamine manufacturing to have come before the New Zealand courts and “that is by a very substantial margin indeed”.20
[45] In 2015, the Police carried out Operation Sylvester, being an investigation into the manufacture and distribution of methamphetamine by Head Hunters. This included Mr Hines, Mr Maaka, Mr Travis Sadler (all patched Head Hunters), and a number of associates. The investigation resulted in the conviction of Mr Hines for manufacturing methamphetamine, possession of methamphetamine for supply and other charges. Mr Hines was sentenced to 18 years and six months’ imprisonment (reduced on appeal to 17 years).21 Mr Maaka was convicted for similar offending and sentenced to 16 years and two months’ imprisonment (reduced on appeal to 14 years and eight months). Mr Sadler was convicted of manufacturing methamphetamine and
14 His conviction was subsequently quashed by the Supreme Court in Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161. However, Mr Cameron subsequently pleaded guilty to an agreed statement of facts before the retrial.
15 R v Chase [2015] NZHC 317.
16 R v Harding [2016] NZHC 2069.
17 R v Harding [2017] NZHC 675.
18 R v Harding, above n 16, at [2].
19 R v Harding, above n 16, at [8].
20 R v Harding, above n 16, at [24].
21 R v Hines [2017] NZHC 769; and Hines v R [2018] NZCA 242.
other related charges. He was sentenced to 18 years and two months’ imprisonment (reduced on appeal to 16 years and eight months).
[46] Between August 2015 and March 2016, the Police carried out Operation Bunk, being a further investigation into the manufacture and supply of controlled drugs. This involved Mr Francee Page (Mr Doyle’s then son-in-law) and Mr Te Awa, both then patched Head Hunters. The investigation also involved Mr Roger Al-Hachache, Mr Saba Khalifeh, and Mr Gerrard Parkes, all of whom were associates of the Head Hunters.
[47] Mr Page was convicted of supplying methamphetamine and possession of methamphetamine for supply and was sentenced to five years and three months’ imprisonment.22 Mr Al-Hachache was convicted of four charges of supplying methamphetamine and other drug charges. He was sentenced to eight years’ imprisonment.23
[48] On 22 September 2017, Venning J made without notice restraining orders in these proceedings.24
[49] Operation Coin was the Police investigation that led to these proceedings. It terminated in September 2017.
[50] On 25 September 2017, the Police executed a search warrant at 232 Marua Road. Mr Doyle and a number of patched Head Hunters and associates were present at the time. During the search, the Police seized a 2014 T5 Volkswagen Multivan, a total of $275,329.70 cash from various locations on the premises, computers, and a large number of boxes of documents, including financial records.
[51] On the same day, the Police executed search warrants at a number of different addresses across Auckland. This included all five properties subject to the without notice restraining orders made on 22 September 2017.
23 R v Al-Hachache [2017] NZHC 1929.
24 Commissioner of Police v Doyle [2017] NZHC 2308.
[52] Between June and December 2020, the Police carried out Operation Parore, being a further investigation into the supply of methamphetamine by patched and associate members of the Head Hunters. This included Mr Tamati Morrison (a patched member), and Mr Cody Jessup and Mr Sione Puloka (associates). Mr Morrison pleaded guilty to charges of possession of methamphetamine of supply and other drug charges and was sentenced to four-and-a-half years’ imprisonment.25 Mr Jessup pleaded guilty to charges of possession of methamphetamine for supply and two charges of supplying methamphetamine. He was sentenced to nine months’ home detention.26
Legal retainers
[53] Between 5 October 2017 and 30 November 2017, six cash deposits, ranging in value from $2,600 to $8,000, were deposited at various bank branches into the bank account of Tucker & Co. Tucker & Co was at that time the instructing solicitor for a barrister representing Mr Doyle in these proceedings.
[54] From 15 June 2020 to 26 August 2021, funds were deposited to the bank account of Dominion Law Trustee Company Ltd (Dominion Law), as follows:
(a)Cash deposits of $44,000;
(b)International money remittances of $72,311.60;
(c)Domestic transfers of $58,050; and
(d)Unidentified deposits of $250.
[55] In 2021, Dominion Law were the instructing solicitors for counsel representing Mr Doyle.
[56] On 26 August 2021, the Tucker & Co retainer of $19,346 was seized. On 31 August 2021, the Dominion Law retainer of $174,611.60 was seized.
25 R v Morrison [2022] NZDC 26034.
26 R v Jessup [2022] NZDC 19697.
History of these proceedings
The pleadings
[57] In 2021, the respondents brought an application for an order directing the Commissioner to file a statement of claim. The respondents contended that the originating application, supported by affidavits, had not sufficiently particularised the Commissioner’s claim against the respondents. In a judgment dated 27 May 2021, the respondents’ application was dismissed.27
[58] Brewer J subsequently dismissed an application by the respondents for leave to appeal his judgment to the Court of Appeal.28 In a judgment dated 31 January 2022, the Court of Appeal dismissed an application for leave to appeal.29 The findings of the Court of Appeal are relevant to my consideration of the hearsay admissibility issues addressed below.
Application to vary restraining orders over the legal retainers
[59] In the period from 4 August 2020 to 2 July 2021 – after the Commissioner had filed his application for civil forfeiture orders in May 2020 – the ANZ Bank New Zealand Ltd (ANZ) submitted three suspicious activity reports in relation to Mr Doyle’s ANZ bank account.
[60] ANZ reported a large number of structured cash deposits into Mr Doyle’s account and the subsequent transfer of those funds to a bank account held by his solicitors, Dominion Law.
[61] On 26 October 2021, the Commissioner applied on notice for restraining orders over the legal retainers. On 24 February 2022, Venning J made restraining orders in respect of those legal retainers by consent. His Honour reserved leave for the respondents to seek a variation condition under s 28 of the CPRA.
27 Commissioner of Police v Doyle [2021] NZHC 1209.
[62] The Commissioner subsequently amended his May 2020 civil forfeiture application to include the forfeiture of the legal retainers as the proceeds of crime.
[63] At the trial in October and early November 2023, I heard evidence from the Commissioner that the legal retainers represent the proceeds of criminal offending.
[64] In December 2023, and over a month after the conclusion of the trial on 6 November 2023, the respondents applied under s 28(1)(c) of the CPRA for a variation of the restraining orders over the legal retainers in order to release funds to pay counsel’s invoice dated 18 December 2023. That invoice relates to legal services carried out prior to the filing of the application for restraining orders over the legal retainers.
[65] On 27 February 2024, I issued a minute setting down the application to vary the restraining order in respect of the legal retainers for a hearing. In that minute, I held that I would hear that application separately and in advance of the release of my substantive judgment. I held that I needed to do so in order to address natural justice considerations.30
[66] At the hearing of the variation application under s 28 on 16 July 2024, I heard submissions from the parties on how I should now deal with that application in the somewhat unusual circumstances where I am also considering the Commissioner’s substantive application for civil forfeiture orders in respect of those same legal retainers. I address that issue below.
The statutory scheme
The regime generally
[67] The CPRA establishes a regime for the forfeiture of property that has been acquired or derived, directly or indirectly, from significant criminal activity, or property that represents the value of a person’s unlawfully derived income.31
30 See Commissioner of Police v Doyle HC Auckland CIV-2017-404-002149, 27 February 2024 (minute on variation).
31 CPRA, s 3(1).
[68] The purpose of the criminal proceeds regime established under the CPRA is described in s 3(2)(a):
[E]liminate the chance for persons to profit from undertaking or being associated with significant criminal activity …
[69] The regime is also designed to deter significant criminal activity and reduce the expansion of criminal enterprise.32
[70] The Court of Appeal has confirmed the CPRA’s “strongly expressed statutory purpose”.33 Likewise, the Supreme Court has held that the language of s 3(2)(a) was “aspirational”, “firm to say the least”, and gave a “clear and emphatic signal as to the legislative purpose”.34
Significant criminal activity
[71]Section 7 of the CPRA reads:
Meaning of unlawfully benefited from significant criminal activity
In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
[72] The term “significant criminal activity” is defined in s 6 as an activity engaged in by a person that, if proceeded against as a criminal offence, would amount to offending:
(a)that consists of, or includes, one or more offences punishable by a maximum term of imprisonment of five years or more; or
(b)from which property, proceeds or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
32 CPRA, s 3(2)(b) and (c).
33 Hayward v Commissioner of Police [2014] NZCA 625 at [29].
34 Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [12] and [50]; see also Slessor v Commissioner of Police [2023] NZCA 612 at [44]–[48].
[73] As proceedings under the CPRA are civil in nature, it is irrelevant whether criminal charges have been commenced, withdrawn, or determined.35
[74] There are two types of civil forfeiture orders under the CPRA: profit forfeiture orders and assets forfeiture orders.36 In this case, the Commissioner applies for both types of order but on an alternative basis.
Profit forfeiture orders
[75] Profit forfeiture rests on the concept of unlawful benefit. The Court orders a respondent who has benefitted from significant criminal activity to pay the value of the unlawful benefit derived. Any property owned or controlled by the respondent can be realised to satisfy the debt owed.
[76] Under s 55 of the CPRA, the Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that:37
(a)the respondent has unlawfully benefitted from significant criminal activity within the relevant period of criminal activity; and
(b)the respondent has interests in property.
[77] Section 17A(1) provides that if the Court is satisfied that the respondent has effective control over property it may order that the property be treated as though the respondent had an interest in the property specified. The Court of Appeal in Kiwi v Commissioner of Police38 held that s 58 (the predecessor to s 17A, which was
35 CPRA, ss 10, 15 and 16. See also McFarland v Commissioner of Police [2024] NZCA 16 at [12], where the Court of Appeal noted that “It is apparent from the statutory scheme that an assets forfeiture order can have a draconian effect.” In Zhou v Commissioner of Police [2023] NZCA 137 at [60] the Court of Appeal held that “the New Zealand statutory regime has been deliberately cast as a penal scheme designed to reduce the opportunity for a criminal to benefit from significant criminal offending and to deter others”.
36 See CPRA, ss 5, 50, 50C and 55. For an assets forfeiture order to be made, the Commissioner is required to prove on the balance of probabilities that the property is “tainted property” under s 50(1). “Tainted property” is defined in s 5(1) to mean property wholly or in part acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.
37 Both ss 50(1) and 55(1) of the CPRA require the Court to determine civil forfeiture applications on the balance of probabilities.
38 Kiwi v Commissioner of Police [2023] NZCA 106, [2023] 2 NZLR 776 at [85].
expressed in virtually identical terms) is intended to reach property held through companies or trusts, or pursuant to family, domestic, or business relationships.
Reverse onus
[78] If the Commissioner proves that the respondents did unlawfully benefit from significant criminal activity, the value of their unlawful benefit is presumed to be the value stated in the Commissioner’s application.39 How the Commissioner’s unlawful benefit figure is calculated is strictly irrelevant. The respondents may, if they choose, assume the burden of proof and rebut the presumption, on the balance of probabilities.40
[79] In Commissioner of Police v Tang,41 Katz J held that the Commissioner is not required to prove the extent to which a respondent has benefitted from significant criminal activity.42 Rather, it is for the respondent to rebut the statutory presumption by providing evidence as to what he or she says was the actual benefit received.43
The Commissioner’s application
[80] In his amended application for civil forfeiture orders dated 17 June 2022, the Commissioner states that the relevant period of criminal activity relied upon for the purposes of the profit forfeiture order is between 25 September 2010 and 17 June 2022.44
[81] The Commissioner claims that the value of the benefit determined in accordance with s 53 of the CPRA is, as the case requires, made up as follows:
(a)$349,545 in deposits with “rent” related references into the bank accounts of the TWTTIN Trust;
39 CPRA, s 53(1). See also Commissioner of Police v Tang [2013] NZHC 1750 at [39].
40 CPRA, s 53(2).
41 Commissioner of Police v Tang [2013] NZHC 1750.
42 Commissioner of Police v Tang [2013] NZHC 1750 at [33].
43 Commissioner of Police v Tang [2013] NZHC 1750 at [39]. See also Commissioner of Police v Filer [2013] NZHC 3111 at [5]; Cheah v Commissioner of Police [2020] NZCA 253 at [47]; Snowden v Commissioner of Police [2021] NZCA 336 at [47]–[49]; and Zhou v Commissioner of Police [2023] NZCA 137 at [30].
44 The relevant period is as defined in s 5 of the CPRA.
(b)$56,640 in deposits with “donation” or “koha” related references into the bank accounts of the TWTTIN Trust;
(c)$1,031,435 in deposits with “fight nights” or “lottery sales” related references into the bank accounts of the TWTTIN Trust;
(d)$1,633,047 in deposits with “loan” related references into the bank accounts of the TWTTIN Trust, East 88 Finance, the Russell Street Trust and Russell Street Enterprises Ltd (Russell Street Enterprises);
(e)$2,079,639 in unexplained deposits into the bank accounts of the TWTTIN Trust, East 88 PHL, East 88 Finance, Russell Street Trust, and Russell Street Enterprises;
(f)$425,219 from the misappropriation of the property of Duncan McFarlane;
(g)$58,000 in “koha” paid to Mr Doyle as identified in Operation Morepork;
(h)$465,800 in “taxings” paid by the illicit drug syndicate identified in Operation Ark;
(i)$275,973 in benefits obtained wrongfully/fraudulently from MSD;
(j)$70,495 being the purchase price of the 2014 Volkswagen T5 Multivan motor vehicle, registration HPN583 (Multivan), registered to Mr Doyle;
(k)$70,000 from the sale of a 2002 Harley Davidson, registration 68USH, and a 2000 Holden VT, registration EAST88, both formerly registered to Mr Doyle;
(l)$2,960,000 in capital gains accrued on 232 Marua Road;
(m)$1,725,000 as five-sixths of the capital gains accrued on 13 Russell Street; and
(n)$1,200,000 in capital gains accrued on 44 Seabrook Avenue.
[82] In order to satisfy the profit forfeiture order, the Commissioner also seeks disposal orders, in accordance with s 83(1) of the CPRA, over the restrained property listed in Schedule 4, together with bank funds, cash funds, the Multivan, and the legal retainers.
[83] In respect of the joint and several profit forfeiture orders sought against both respondents, the Commissioner says that the value of the benefit determined in accordance with s 53 of the CPRA is $2,906,944.60, made up as follows:
(a)$94,159 in deposits with loan-related references into the bank accounts of the AP Bloodstock Trust;
(b)$163,674 in unexplained deposits into the bank accounts of the AP Bloodstock Trust;
(c)$1,470,000 in capital gains accrued on 159 Penrose Road;
(d)$970,000 in capital gains accrued on 39 Tunis Road;
(e)$34,500 deposited to Tucker & Co, instructing solicitors for barrister Maria Pecotic, on account of Mr Doyle and Ms Papuni; and
(f)$174,611.60 deposited to Dominion Law and/or Christopher Hocquard, instructing solicitors for barrister Ron Mansfield, on account of Mr Doyle and Ms Papuni.
[84] The Commissioner again seeks orders for the disposal of property and the legal retainers in order to satisfy the joint and several profit forfeiture orders sought.
[85]The amended application also contains alternative assets forfeiture orders.
The evidence
[86] These are proceedings under Part 19 of the High Court Rules 2016, namely an originating application with affidavit evidence. Less than half of the deponents were cross-examined. One of the principal witnesses for the Commissioner was Mr Stephen Peat. He is a long-serving police officer and an investigator attached to the Northern Asset Recovery Unit, which is part of the Financial Crime Group of the New Zealand Police. Mr Peat has sworn 10 affidavits in this proceeding.
[87] Mr Peat is essentially the officer in charge. In total, his affidavits set out the Commissioner’s case and make conclusions (often based on inferences from the evidence) and express opinions about matters now at issue.
[88] A large number of senior police officers gave evidence, including those holding the rank of Inspector and Senior Detective. Their evidence included opinion evidence about the Head Hunters and the role of Mr Doyle within it. I address below, as a separate issue, the admissibility of that opinion evidence. However, I generally found the Police evidence to be thoroughly professional and of a high standard.
[89] A further important witness for the Commissioner was Ms Kylie Cairns. Ms Cairns is a financial analyst working in the Northern Asset Recovery Unit within the Financial Crime Group of the New Zealand Police. Ms Cairns has carried out significant analysis of a wide range of financial documents, including bank statements, deposit slips, and the financial records of the TWTTIN Trust, and has produced in evidence a significant number of schedules containing a detailed break-down of many of these transactions. The date range for much of Ms Cairns’ analysis was from 2 January 2001 to 25 September 2017. That was based on the date ranges of the bank account records obtained. It is acknowledged that the analysis begins before the commencement of the profit forfeiture period underlying the Commissioner’s application.
[90] I found Ms Cairns to be an entirely professional and very reliable witness. During the trial and subsequently, Ms Cairns provided further analysis to the Court.
This included a response to requests from the respondents for further analysis.45
[91] For the respondents, Mr Doyle was cross-examined over a three-day period. Ms Evelyn Stanley, a trustee of the TWTTIN Trust, was also cross-examined. For the reasons given below, I reject much of Mr Doyle’s evidence. Some of his explanations of key issues are implausible and there is a wealth of evidence contradicting a number of the critical explanations he sought to put forward.
[92] The evidence in this case traverses much of Mr Doyle’s adult life. For much of the last two decades, he has lived beyond the reach of the law; his attitude to the law appears to be one of cynical disregard.
The issues
[93]The following issues arise:
(a)The ultimate and overarching issue is whether the Commissioner has established on the balance of probabilities that the respondents knowingly benefitted from significant criminal activity – pursuant to ss 6 and 7 of the CPRA.
(b)The logically prior issues of admissibility are as follows:
(i)Are the hearsay statements of Head Hunters and others admissible under s 20 of the Evidence Act 2006 and r 7.30 of the High Court Rules 2016?
45 At trial, in the course of Ms Cairns’ evidence, she referred to an “electronic cashbook” and an Excel spreadsheet which records information from all bank statements obtained pursuant to production orders served upon financial institutions. The bank statements were converted into Excel format and collated into one document. In a minute dated 18 March 2024, I dismissed an application by the respondents that Ms Cairns, on behalf of the Commissioner, provide yet further schedules analysing bank data to the Court. I held that the general rule prohibiting further evidence from a party after that party’s case had closed applied (Evidence Act 2006, s 98); see Commissioner of Police v Doyle HC Auckland CIV-2017-404-002149, 18 March 2024 (minute on cashbook).
(ii)If so, is it in the interests of justice to admit the evidence?
(iii)Are those same hearsay statements admissible under s 18 of the Evidence Act 2006 because the makers of the statement are unavailable (effectively beyond compulsion because of fear of retaliation)?
(iv)Are the opinions of the police officers on the role of Mr Doyle and the nature of the Head Hunters organisation admissible as expert opinion evidence?
(v)Are parts of the affidavits of Mr Peat inadmissible because they are conclusory and contain submissions?
(c)A further question in addressing the overarching s 7 issue is what inferences can properly be drawn from the evidence as a whole? That involves a consideration of the following subsidiary issues:
(i)The role of Mr Doyle. Was he the president/senior leader as alleged?
(ii)Is the Head Hunters a criminal organisation?
(iii)Is the TWTTIN Trust a front for the Head Hunters?
(d)The status of the legal retainers, including the following:
(i)Do I address the respondents’ application for a variation to the restraining order under s 28 separately from the Commissioner’s substantive forfeiture application?
(ii)Is the Commissioner precluded by agreement from limiting his opposition to the s 28 variation application?
(iii)Does Mr Doyle have the ability to meet the disputed legal invoice (the subject of the s 28 application) from unrestrained property?
(e)What profit forfeiture orders should I make under s 55 of the CPRA?
(f)What interests in property do Mr Doyle and Ms Papuni have? That involves a consideration of whether Mr Doyle has effective control over the disputed properties under s 17A of the CPRA.
Overview of the respective cases
The Commissioner’s case
[94]The Commissioner submits:
(a)The Commissioner’s investigation into Mr Doyle spans more than two decades. The Commissioner says that over the course of Mr Doyle’s criminal career – the only career he has ever had – Mr Doyle has steadily accumulated considerable wealth for himself, his family, and the Head Hunters. The Commissioner’s investigation shows, he says, that Mr Doyle’s property portfolio is worth over $13.6 million. Mr Doyle puts this down to hard work, luck and the beneficence of others; principally, the deceased Mr Duncan McFarlane. Such a claim is implausible.
(b)However, since 1998, Mr Doyle’s only declared income is that received from MSD benefits. Those are benefits which the Commissioner’s investigation has shown he was not entitled to and which he had obtained through deception.
(c)It is extraordinary that Mr Doyle, while accepting that he has been a long-term beneficiary with no independent income and has spent a significant portion of adult life in prison, has funded five pieces of real estate in Auckland suburbs.
(d)As president of the Head Hunters and founder of its East Chapter (and beneficial owner of its premises), Mr Doyle was and is perfectly positioned to benefit from the criminal offending of subordinate Head Hunters members and associates – through the established practice of a percentage of the proceeds of crime being paid by members and associates to the gang’s president – all the while maintaining a respectable distance from the criminal activity itself.
(e)The significant criminal activity (see ss 6 and 7) relied upon is as follows:
(i)Manufacturing and supplying controlled drugs;
(ii)Property-related offending, including demanding with menace (taxing);
(iii)Fraudulently obtaining MSD benefits;
(iv)Money laundering through the Doyle entities and “loans”; and
(v)Misappropriation of Mr Duncan McFarlane’s property.
(f)The criminal money that is laundered originates principally from the manufacture and supply of controlled drugs and the property-related offending.
(g)The Commissioner’s case also relies upon the vast sums of money, often in the form of cash, that he says Mr Doyle has received from Head Hunters members and associates (often into the bank accounts of Doyle entities). This includes funds deposited on his behalf directly into his lawyer’s trust account to defend the current proceedings.
(h)In respect of Ms Papuni, the Commissioner submits that there is a significant discrepancy between Ms Papuni’s income and the money she has received and the assets she has accumulated. Those factors,
together with her relationship with Mr Doyle, her “obvious knowledge” of his criminal activities, and her involvement with the Doyle entities, establish that she has knowingly and unlawfully benefitted from significant criminal activity.
The respondents’ case
[95]The respondents submit:
(a)Mr Doyle is not “a Teflon don”. The Commissioner has mischaracterised him in his role in the Head Hunters and the relevant entities.
(b)Mr Doyle cannot be shown to have received any specific proceeds of any criminal offending in any relevant time period for either profit forfeiture orders or assets forfeiture orders. None of the relevant entities can be shown to have received the proceeds of any significant criminal activity.
(c)Mr Doyle cannot be shown to be in effective control of any of the entities as is legally required. He has not been shown to effectively operate those entities as if they are him personally or his alter ego.
(d)When the Court is asked to make such draconian orders relating to significant assets, all of which are held by duly incorporated companies and/or settled trusts, there needs to be properly admissible and clear evidence to justify this.
(e)The implementation of the statutory regime, compliance with established rules of evidence, and ordinary principles of procedure – “let alone the interest of justice” – do not bend in favour of the Commissioner simply because of claims that Mr Doyle is a “bad” man and/or has done “bad” things.
(f)The Court needs to guard against using its own, the Commissioner’s, the Police or some of its officers’, or a sector of our community’s judgment of the Head Hunters. The lifestyle or serious crimes committed by some should not be seen as relevant and should not obfuscate the Court’s view of its evidential and/or legal task.
(g)To the extent that it has been proven that third parties offended, Mr Doyle denies having received any benefit of such offending, whether personally or through a relevant entity.
(h)Mr Doyle is an unsophisticated respondent. He had a difficult upbringing and no formal education. To this day, he has difficulty reading and writing. He does not live extravagantly. He does not spend lavishly. He lives with his family and is on a benefit, as he has been since 1994. The Head Hunters has been a constant for much of his life but this obvious concession assists little in the determination of this application.
(i)The Commissioner has failed to establish any link between any proceeds received by those shown to have committed the significant criminal activity and the funds received by Mr Doyle or the relevant entities. Without this fundamental link, the Commissioner’s application fails.
(j)The evidence is clear that even patched gang members have other sources of income. Many have their own businesses, are employed, are in receipt of a benefit, or may be independently supported or funded.
ANALYSIS AND DECISION
Admissibility objections
[96] The respondents have raised objections to three broad categories of evidence offered by the Commissioner:
(a)Oral and/or documentary statements in the form of references to material from persons who have not provided an affidavit, on the basis that this evidence is hearsay (hearsay evidence);46
(b)Opinion evidence included in various police officers’ affidavits (opinion evidence); and
(c)Conclusory statements contained in the Commissioner’s affidavits, which, in the respondents’ submission, amount to submissions (conclusory statements).
[97]The respondents’ objections are contained in very lengthy, detailed schedules.
Hearsay
[98]The alleged hearsay evidence falls into three broad categories:
(a)Intercepted communications (phone calls and messages) obtained covertly;
(b)Statements made to the Police, including but not limited to those made during an examination conducted under the CPRA; and
(c)Notes of evidence given by a witness at their criminal trial.
[99] As the Commissioner submits, the intercepted communications have significant probative value as highly relevant threads of circumstantial evidence which make up the Commissioner’s case that Mr Doyle is at the helm of the Head Hunters, which is both a criminal enterprise and a revenue-generating business.
[100] The history of the parties attempting to address admissibility issues prior to trial is set out in my judgment of 18 October 2023.47 In the months preceding trial,
46 The Commissioner refers to this category of evidence as “non-affidavit evidence”.
47 Commissioner of Police v Doyle [2023] NZHC 2911, at [12]–[14].
the Commissioner obtained and commenced the service of a total of 18 subpoenas on persons upon whose out of court statements he relies (i.e. the out of court statements, annexed to the affidavits of police officers, and from members and associates of the Head Hunters). In response to admissibility challenges from the respondents, the Commissioner at that stage proposed making the subpoenaed witnesses available for cross-examination but not leading any evidence from them or attempting to have them swear their own affidavits. In my judgment, I held that the Commissioner could not adopt that procedure to address and overcome any hearsay objections made by the respondents.48 Simply making the maker of the statement available for cross-examination (without more) did not make the statements relied upon by the Commissioner admissible.
[101] The subpoenaed witnesses were not called to give evidence and no attempt was made to enforce the subpoenas. In a memorandum to the Court dated 12 October 2023, the Commissioner noted that he could not vouch for the truthfulness of those witnesses’ testimony against a patched Head Hunter, “let alone the president”. Instead, the Commissioner stated that he relies upon their out of court statements, which were said to have been made in circumstances that establish their reliability.49
[102] The Commissioner’s position is that some of the evidence at issue is not hearsay on the basis that it is not a “statement” for the purposes of the Evidence Act and/or is not relied upon for the truth of its contents. This is particularly the case in relation to many of the intercepted communications. Beyond this, for other categories of evidence, the Commissioner accepts that the evidence in question is hearsay but submits that it is admissible under s 18 of the Evidence Act and/or rr 7.30 and 19.10 of the High Court Rules, in conjunction with s 20 of the Evidence Act.
[103] I accept that some of the evidence at issue may not be hearsay because it is not a “statement” or is not relied upon by the Commissioner for the truth of its contents. That might include, for example, intercepted communications between Head Hunters members/associates referring to giving something, most likely money, to “Chief” or
48 Commissioner of Police v Doyle [2023] NZHC 2922, at [15].
49 See Commissioner of Police v Doyle [2023] NZHC 2911, at [8]. See also at [9] where the Commissioner made clear that the reason for issuing the subpoenas was to respond to any application that might be made to exclude the statements as hearsay.
“the club”. However, it is clear that the vast majority of evidence in this case, consisting of out of court statements by persons not called as witnesses, is hearsay – at least in terms of the definition of hearsay in s 4 of the Evidence Act – as they are statements made by a person other than a witness and they are offered in evidence by the Commissioner to prove the truth of their contents.
[104] The starting point for addressing this issue is not in dispute: a hearsay statement is generally inadmissible, except where otherwise provided for.50
[105] In closing submissions, it became apparent that the Commissioner relies principally upon rr 7.30 and 19.10 of the High Court Rules, in conjunction with s 20 of the Evidence Act, to render the statements at issue admissible. It is the combination of those provisions that he says provides the circumstances of “otherwise”, as referred to in s 17 of the Evidence Act.
Rule 7.30 in the context of originating applications (r 19.10)
[106]Section 20 of the Evidence Act reads:
Admissibility in civil proceedings of hearsay statements in documents related to applications, discovery, or interrogatories
(1)In a civil proceeding, a hearsay statement in an affidavit made to support or oppose an application is admissible for the purposes of that application if, and to the extent that, the applicable rules of court require or permit a statement of that kind to be made in the affidavit.
(2)In a civil proceeding, a hearsay statement in a document by which documents are discovered or interrogatories are answered is admissible in that proceeding if, and to the extent that, the applicable rules of court require or permit the making of a statement of that kind.
[107]Rule 7.30 of the High Court Rules reads:
Statements of belief in affidavits
(1)A Judge may accept statements of belief in an affidavit in which the grounds for the belief are given if—
(a)the interests of no other party can be affected by the application; or
50 Evidence Act 2006, s 17.
(b)the application concerns a routine matter; or
(c)it is in the interests of justice.
(2)Subclause (1) overrides rule 7.29.
[108] Rule 19.10(1)(j) of the High Court Rules provides that r 7.30 applies with “all necessary modifications” to proceedings commenced by originating application. These proceedings are, of course, an originating application. The critical issue I must address is whether the Commissioner can rely upon r 7.30 at this substantive stage of the proceedings where profit and assets forfeiture orders are sought.
[109] Section 20 of the Evidence Act re-enacts, in statutory form, provisions contained in the High Court Rules relating to hearsay statements and affidavits. The section was added to the Evidence Act by the Parliamentary Select Committee and the rationale given for its addition was described as follows:51
The second change, which is contained in [s 20], picks up a couple of the High Court Rules that deal with hearsay, or statements of belief, in certain circumstances. In civil proceedings, hearsay statements and documents related to interlocutory applications, interrogatories, or discovery will be admissible, provided that grounds are given. It is appropriate that those sorts of rules are contained in the Evidence Act and are not simply contained in the High Court Rules or their equivalent.
[110] Section 20 makes it clear that evidence falling within s 20 does not need to satisfy ss 18 or 19. However, s 20 operates to admit hearsay only to the extent permitted by the rules of the Court. Beyond that, the Evidence Act’s controls on admissibility take priority.52
[111] The phrase “statements of belief” in r 7.30(1) includes “statements of information and belief”.53 Shorland J in Patrick v Attorney-General, held that the effect of the earlier r 185 (the original predecessor to r 7.30) was to give the court power to grant the party the concession of placing hearsay statements before the court
51 (21 November 2006) 635 NZPD 6642.
52 Elizabeth McDonald and Scott Opticon (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV20.01].
53 Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR7.30.02]; Hanna v Auckland City Corporation [1945] NZLR 622 (CA) at 632. See also Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd [1976] 1 NZLR 741 (SC) at 745; Makin v Hayward (1991) 1 NZPC 734; and Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106 at [37] and [38].
where the cost, delay, and inconvenience involved in obtaining an affidavit from a deponent with personal knowledge would be out of proportion to the reasonable necessities of the case.54 This view has been repeatedly endorsed.55
[112] The admissibility of hearsay statements under r 7.30, and in the context of applications under the CPRA, was expressly addressed by Cooke J in a recent restraining order decision: Commissioner of Police v Cheng.56 In that case the evidence at issue was two lengthy affidavits filed by the Commissioner. That evidence was disputed on the basis that much of it was in the nature of submission or argument. Addressing the disputed admissibility, Cooke J referred to the following statement by the Court of Appeal in Vincent v Commissioner of Police:57
… affidavits such as those filed by the two police officers are admissible, without the need for a formal application under s 19 of the Evidence Act. Rather, they fall within r 7.30 of the High Court Rules and s 20 of the Evidence Act. The alternative to allowing what are, technically at least, hearsay statements in affidavits such as those at issue would be to require a very elaborate evidentiary basis for the issue of restraining orders, which would be impractical and inconsistent with the approach taken in other contexts. We note that the same approach has been taken in other jurisdictions which have legislation similar to the [CPRA].
[113] Cooke J then went on to note that r 7.30 (and, by implication, s 20 of the Evidence Act) no longer applies at the forfeiture stage.58 He reasoned, again with reference to Vincent, that at the forfeiture stage, the Commissioner must prove his case to the civil standard of the balance of probabilities, whereas, at the restraint stage, the test is whether there are reasonable grounds to believe that the basis to make restraining orders exist. Cooke J stated:59
This is an important distinction that needs to be understood by the Commissioner when pursuing forfeiture applications. The kind of evidence in support of a forfeiture application will likely be of a different kind from the evidence filed in support of restraint applications. This forfeiture application is a civil proceeding in which the Commissioner is effectively seeking
54 Patrick v Attorney-General [1957] NZLR 228 (SC).
55 See for example: Bell v John Holland Properties (NZ) Ltd (1990) 3 PRNZ 536 (HC) at 538; and
Marac Financial Services Ltd v Stewart [1993] 1 NZLR 86 (HC) at 12.
56 Commissioner of Police v Cheng [2023] NZHC 606; see also Cooke J’s earlier decision
Commissioner of Police v Clarke [2021] NZHC 1981 at [4].
57 Commissioner of Police v Cheng [2023] NZHC 606 at [31], citing Vincent v Commissioner of Police [2013] NZCA 412 at [47] (footnotes omitted).
58 Commissioner of Police v Cheng [2023] NZHC 606 at [32]–[34].
59 Commissioner of Police v Cheng [2023] NZHC 606 at [34].
judgment for over $20 million. The kind of evidence one might expect to support such a claim in civil proceedings needs to be presented.
[114] Regardless of those observations, the issue in Cheng was not one of formal admissibility; rather, the issue was whether the evidence was substantially helpful to the Court.60 Cooke J expressly noted that he made no ruling on the issue of admissibility. Accordingly, his Honour’s comments on this issue are obiter.
[115] With great respect to Cooke J, I do not agree with his observation that, in the context of the CPRA, r 7.30 of the High Court Rules and s 20 of the Evidence Act only apply at the restraint stage. I accept, in principle, that a distinction is properly drawn between the test to be applied at the restraint stage (i.e. reasonable grounds to believe) and the threshold for proof of allegations at the forfeiture stage (i.e. the civil standard). However, in my view, there is no basis to limit the application of r 7.30 to the restraint stage. I find that it also applies to the forfeiture stage. I acknowledge that the reasoning in Vincent is focused on the restraint stage, but the Court of Appeal did not expressly engage with the issue confronting me, namely whether r 7.30 also applies at the forfeiture stage.
[116] The express language of the relevant provisions provides the starting point for the analysis leading to my finding. Rule 19.2(r) provides that applications to the court under the CPRA must be made by way of originating application. Rule 19.10(1)(j) then expressly states that r 7.30, which applies to interlocutory applications, also applies (with all necessary modifications) to originating applications. No distinction is made between restraint or forfeiture applications. Importantly, originating applications, by their nature, result in a final determination. The express intention of r 19.10 is to apply interlocutory rules to substantive originating applications.
[117] The interpretation I adopt is consistent with the express wording and intent of s 20 of the Evidence Act. These are civil proceedings in which affidavits are made containing hearsay statements and the applicable rules of court permit a statement of that kind to be made. My interpretation is also consistent with the rationale given for the addition of s 20 by the Parliamentary Select Committee.
60 Commissioner of Police v Cheng [2023] NZHC 606 at [38].
[118] The scheme and purpose of the CPRA supports my approach. As the Court of Appeal held in Doyle v Commissioner of Police, the CPRA is one of a number of specific statutory provisions in respect of which it is apparent that “the originating application procedure is envisaged to provide a speedy and inexpensive mechanism for the disposition of a variety of applications.”61 Furthermore, and as mentioned above, the Court of Appeal has noted the “strongly expressed statutory purpose” of the CPRA.62 Likewise, the Supreme Court has referred to the “clear and emphatic signal as to the legislative purpose” of the CPRA.63 In my view, a relaxation of the rules of evidence under the CPRA, albeit in a controlled fashion, as the rules expressly contemplate, is consistent with the CPRA’s clear and broad scheme, which is specifically designed to deter criminal activity and eliminate the potential to profit from it.
[119] I agree, in principle, with Cooke J that where forfeiture orders are sought for substantial sums of money (as in this case), then the Court will look critically at the nature and quality of the evidence and whether the Commissioner has met the standard of proof, namely on the balance of probabilities. I also acknowledge that the statutory scheme of profit and assets forfeiture orders can have a draconian effect.64 However, in my view, these factors are not determinative of the issue of whether the application of r 7.30 should be limited to restraint applications. The factors in r 7.30 are not only controlling. Rather, the “interests of justice” and the civil standard of on the balance of probabilities are to be applied flexibly, according to the seriousness of matters to be proved and the consequences of proving them.65
[120] I do not accept that the caveat of “with all necessary modifications” in r 7.30 can be relied upon to exclude the operation of the rule in proceedings of this kind.
61 Doyle v Commissioner of Police [2022] NZCA 2 at [7].
62 Hayward v Commissioner of Police [2014] NZCA 625 at [29]. See also McFarland v Commissioner of Police [2024] NZCA 16 at [9], where the Court cited Commissioner of Police v Harrison [2021] NZCA 540, [2022] 2 NZLR 339 at [7], to note that the aim of the CPRA is to “make sure that crime does not pay”.
63 Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [12] and [50].
64 McFarland v Commissioner of Police [2024] NZCA 16 at [12].
65 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.
[121] I conclude, therefore, that the disputed hearsay statements are, in principle, admissible under r 7.30 of the High Court Rules and s 20 of the Evidence Act.
[122] I turn then to address the critical issue that follows, namely whether, as a matter of discretion, I should accept these hearsay statements, pursuant to r 7.30(1).
Discretion under r 7.30
[123] The test I must apply is, of course, the interests of justice. It is clear that the factors in (a) and (b) of r 7.30(1) do not apply, given that multiple parties’ interests will be affected by the Commissioner’s application and that the application by no means involves a “routine matter”.
[124] I find that the factors in s 18 of the Evidence Act, namely reliability, expense, delay, and convenience, are factors that should be taken into account in exercising the discretion under r 7.30. I accept that it is important that solid grounds exist for the statements of information and belief asserted.66
[125] These proceedings may well be a paradigm case for the operation of both the CPRA and r 7.30. The Commissioner’s case, which spans over 20 years, is that Mr Doyle is the head of a criminal enterprise and has taken steps to try to ensure that evidence against him is not available. The case is a circumstantial one, depending on the totality of the evidence, and it inevitably includes details of a vast array of unlawful activity by persons other than Mr Doyle. Equally, it is clear on the evidence before me that a number of these witnesses would not give evidence for fear of reprisal and repercussions from Mr Doyle and the Head Hunters.
[126] Here, there is a compelling public interest for all relevant information to be before the Court to give effect to Parliament’s clear intention, as indicated in s 3 of the CPRA, to eliminate the opportunity for persons to profit from significant criminal activity. Were I to exclude the hearsay evidence in this case – a paradigm case – it may be that the Commissioner could never prove an assets forfeiture case against a senior leader of a criminal organisation who escapes liability by intimidating witnesses
66 Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR7.30.03].
and who conceals his role in, and his benefits from, significant criminal offending. That would be contrary to the clear and emphatic Parliamentary intention. It would equally be contrary to the interests of justice.
[127] This is not a case where the Commissioner has adopted a “rough-shod” or “slack” attitude to the evidence, which appears to be a feature of the Commissioner of Police v Clarke decision.67 Rather, the Commissioner has taken care in assembling numerous affidavits, with reference to a substantial number of supporting documents (including transcripts of criminal trials), all of which provide substantial support for the Commissioner’s core allegation. In general terms, the circumstances relating to the statements at issue provide a reasonable assurance of the reliability of the statements. The overall thrust of the evidence supporting the statements of information and belief in the affidavits supports the claims that Mr Doyle occupied a very senior and influential position in the Head Hunters and significantly benefitted from crimes committed by other Head Hunters.
[128] This Court’s many sentencing decisions of Head Hunters members provide further support for my finding as to the general reliability of the disputed hearsay evidence.68 I also note that much of the content of the out of court statements as to the commission of crimes is not challenged. The disputed issue is the extent to which Mr Doyle was involved. The Commissioner has sought to prove that independently.
[129] Where the Commissioner has adduced evidence in the form of notes of evidence given by a witness at their criminal trial,69 I am again satisfied that there is a reasonable degree of reliability about such statements. Such evidence was given under oath, on pain and penalty of perjury.70
[130] As I discuss below in relation to admissibility under s 18 of the Evidence Act, the Law Commission, in its recent report – The Third Review of the Evidence Act 2006
– addressed, among other things, the problem of persons not giving evidence because
67 Commissioner of Police v Clarke [2021] NZHC 1981.
68 See s 47 of the Evidence Act 2006 and Commissioner of Police v Filer [2013] NZHC 3111 at [25],
[27] and [31]. See also Commissioner of Police v Milosevic [2022] NZHC 1595.
69 See, for example, the evidence of Mr Christopher Chase and Mr George Reed.
70 See Independent Carpets Ltd (in liq) v Madsen Ries (as liquidators of Independent Carpets) [2020] NZHC 2757 at [23].
of fear of adverse consequences, such as intimidation or retaliation.71 The Commissioner correctly notes that the Law Commission did not discuss s 20 of the Evidence Act (which the Commissioner principally relies upon). The Commissioner says that that was for the “obvious reason” that s 20 of the Evidence Act and r 7.30(1)(c) of the High Court Rules are already predicated on the admission of hearsay evidence in the interests of justice and that there are no formal jurisdictional impediments to admissibility, as there are in other cases, such as where necessity arises from the unavailability of a witness. I doubt that the lack of discussion is “for the obvious reason” as the Commissioner suggests, given that r 7.30 does not apply to criminal proceedings. However, I agree with the Commissioner’s submission that the Law Commission report provides support for his argument that the interests of justice (under s 20 and r 7.30) support the admission of hearsay evidence where the makers of the statements face a real threat of retaliation.
[131] In rejecting Mr Doyle’s admissibility challenge on this ground, I accept that I need to assess the weight to be given to such evidence, and to take the inevitable limitations associated with it, into account in determining whether the Commissioner has proven his claim to the civil standard. However, I reject the submission of the respondents that I should address each disputed item of hearsay evidence in terms of the controlling test of the interests of justice (as set out in their substantial and lengthy schedules of objection). This is not a criminal trial and such an approach would not be at all practical – to a large extent, the only tenable approach is a broad brush one.
[132] Finally on the issue of admissibility under r 7.30, I conclude that the evidence at issue clears the gateways under ss 7 and 8 of the Evidence Act. The evidence is clearly relevant and of significant probative value. Certainly, the evidence is adverse to the respondents’ case, but there is no credible risk of unfair prejudice that might outweigh the probative value of the evidence. The overall thrust of the evidence, pointing decisively in one direction, provides a high degree of assurance of its reliability.
71 Law Commission Te Arotake Tuarua i te Evidence Act 2006/The Third Review of the Evidence Act 2006 (NZLC R142, 2024) at ch 3.
[133] In conclusion, I find that it is in the interests of justice to admit the disputed hearsay evidence. It accordingly forms part of the overall evidence that I analyse and consider below.
Admissibility under s 18
[134] The Commissioner also contends that the hearsay statements at issue are admissible under s 18 of the Evidence Act. That is because the circumstances relating to the making of the statements provide reasonable assurances that they are reliable and that the makers of the statements are unavailable as witnesses.
[135] The critical issue to address is whether, as the Commissioner contends, the subpoenaed witnesses, mostly Head Hunters, are “unavailable” because they are effectively beyond compulsion.
[136] The Commissioner makes two key submissions on this issue, and he says these were the reasons why he did not seek to obtain affidavits from the statement-makers in the first instance:
(a)The statement-makers have been involved in offending in concert with other Head Hunters and there is evidenced loyalty amongst co-conspirators and fellow gang members. There is little utility, therefore, in calling these individuals as witnesses because they would, essentially, be unwilling to talk.
(b)Any Head Hunter who gives evidence against the gang risks retaliation against them in the form of serious physical, life-threatening harm. There is a very high risk of witness intimidation.
[137] It is the Commissioner’s case that there is no practical mechanism to enforce the statement makers’ attendance at court because they face or have faced the real prospect of intimidation. In support of that submission, the Commissioner relies upon evidence given in this case by senior police officers (including evidence from Inspector Kevin McNaughton and an affidavit from Detective Sergeant Beal, who describes the circumstances of attempting to subpoena Mr Coyle) and by a former
Head Hunter. He also relies upon evidence contained in a number of recent court decisions, including R v McFarland72 and R v Kahui.73 Those decisions relate to the sentencing of patched Head Hunters, Mr Terrence McFarland and Mr Aaron Hiley, for offending which included significant witness intimidation.
[138] I am satisfied, given the evidence before me, that a proper evidential basis for the conclusion of witness intimidation and the submission of “effectively beyond compulsion” is made out as a matter of fact. However, despite this factual finding, the legal question remains as to whether or not a witness being “beyond compulsion” because of intimidation or fear of retaliation falls within the statutory definition of “unavailable as a witness”.
[139] Section 16(2) of the Evidence Act contains a definition of “unavailable as a witness”. A person is unavailable if they:
(a)are dead;
(b)are outside of New Zealand in circumstances where it is not reasonably practicable for them to be a witness;
(c)are unfit to be a witness because of age or physical or mental condition;
(d)cannot without reasonable diligence be identified or found; or
(e)are not compellable to give evidence.
[140] As noted, the Law Commission’s Third Review of the Evidence Act 2006 addresses the issue of a possible reform to s 18, which would involve an extension of the categories of unavailability.74 In its Issues Paper, the Law Commission addressed the possibility of introducing two additional sub-categories of unavailability: “when a person has been intimidated by or on behalf of the defendant” and “when a person fears retaliation if they give evidence”.75 The former of these suggested sub-categories
72 R v McFarland [2007] NZCA 449.
73 R v Kahui [2020] NZDC 6621.
74 Law Commission Te Arotake Tuarua i te Evidence Act 2006/The Third Review of the Evidence Act 2006 (NZLC R142, 2024) at [3.19]; see also Law Commission: Te Arotake Tuarua i te Evidence Act 2006/The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at [3.40].
75 Law Commission Te Arotake Tuarua i te Evidence Act 2006/The Third Review of the Evidence Act 2006 (NZLC R142, 2024)at [3.19]; see also Law Commission Te Arotake Tuarua i te Evidence Act 2006/The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at [3.40].
fell away in the Report, given the potential difficulties with proving intimidation.76 The latter category, however, was retained with the recommendation that s 18 be amended to include a new ground for admitting a hearsay statement in a criminal proceeding where:77
a.the maker of the statement has a reasonable fear of retaliation if they give evidence and they do not intend to give evidence because of that fear; and
b.it is in the interests of justice to admit their hearsay statement.
[141] In its review, the Law Commission noted the “fear-based approach” taken in the equivalent legislation of England and Wales. In that jurisdiction, a court may give leave for a statement to be admitted as evidence if a person does not give oral evidence “through fear”.78
equipment and was sentenced to six months’ home detention. Charges against Mr Tau Daly were withdrawn.
171 Mr Raumati’s prior convictions include burglary (2012), wounding with intent to cause grievous bodily harm (2002), unlawfully takes motor vehicle (2002), and theft (1990).
172 Charge dismissed as complainant departed New Zealand before trial. Stephen Daly’s prior convictions include aggravated assault (2010), supplying methamphetamine (2012), theft (1999) and a litany of driving offences between 2003 and 2019. Mr Maaka’s prior convictions include possession of cannabis for supply (2013), demanding with intent to steal (2006), theft (2004), aggravated robbery (2001), burglary (2000), and receiving (1998).
173 Mr Collett: pleaded guilty to charges of possession of cannabis for supply and unlawful possession of a restricted weapon. He was sentenced to 200 hours community work. Mr Collett’s criminal history includes convictions for cultivating cannabis (2015), numerous offences for unlawful possession of firearms (2015, 2013, 2007), aggravated robbery (1991), attempted arson (1985), theft (1985), and burglary (1985). Mr Dunn pleaded guilty to possession of methamphetamine and utensils, and was sentenced to 40 hours community work.
Date Event Judgment reference February–November 2011 Operation Ark: An investigation into importation, production and distribution of class B and C controlled drugs.
Jamie Cameron, Christopher Chase and various associates were involved.174
R v Chase [2015] NZHC 317. March 2012 Operation Magnet: An investigation into conspiracy to commit aggravated robbery against an Asian female.
Joshua Ashby, Steven Tainui (patched HHs), Dwayne Tonihi (prospect), and James Sturch were involved.175
April 2012 “Taxing” against cannabis advocacy group, the Daktory, by Falco Maaka (patched HH).176 10 July 2003–7 May
2012
Mr Doyle owned a 2002 Harley Davidson with the registration 68USH. August 2013 Operation Clarence: An investigation into two incidents of (respectively) aggravated robbery and demanding with intent to steal.
Christopher Glassie, Netana Harmer, Andrew Mangi (patched HHs), Joshua Neild and Robert Williams (associates) were involved.177
R v Glassie [2017] NZDC 26166.
174 Mr Cameron: convicted on a representative charge of importing a Class C controlled drug, and 12 charges of sale and possession for sale of a Class C controlled drug. He was sentenced, in February 2015, to eight years’ imprisonment. However, Mr Cameron’s conviction was quashed in 2017 by the Supreme Court. Nonetheless, Mr Cameron pleaded guilty to an agreed statement of facts before the retrial. Mr Chase was convicted on two charges (one representative) of importing a Class C controlled drug and 12 charges of sale and possession for sale of a Class C controlled drug. He was sentenced to 10 years’ imprisonment.
175 Messrs Ashby, Tainui, Tonihi, and Sturch: all pleaded guilty to conspiracy to commit aggravated robbery. Mr Ashby was sentenced to six months’ home detention; Mr Tainui to 10 months’ home detention; Mr Tonihi to six months’ home detention and Mr Sturch to six months’ home detention.
176 Mr Maaka’s criminal history is annexed to Detective Dooley’s Affidavit at Exhibit 3. He has convictions for various assaults (23 convictions between 2004 and 2019), manufacturing methamphetamine (2017), demanding with intent to steal (2012), unlawful taking motor vehicle (2005 and 2010), and aggravated robbery (2005).
177 Mr Glassie: convicted of demanding with intent to steal and aggravated robbery, and was sentenced to three years and three months’ imprisonment. Mr Harmer was convicted of unlawful possession of an offensive weapon, demanding with intent to steal, and aggravated robbery, and was sentenced to three years and two months’ imprisonment. Mr Mangi was convicted of demanding with intent to steal, theft, and aggravated robbery, and was sentenced to two years and 11 months’ imprisonment. Mr Neild was convicted of demanding with intent to steal and
Date Event Judgment reference October 2013 Operation Salt: An R v Griffin DC Rotorua CRI- investigation into the extortion 2013-063-003671, 11 of the B family. December 2014. Thomas Hutchinson (patched R v Mulitalo DC Rotorua CRI- HH), Michael Griffin and 2013-003-003671, 11 Vaiola Mulitalo (associates) December 2014. were involved.178
R v Hutchinson DC Rotorua
CRI-2013-063-003671, 11 December 2014. October 2013–May 2014 Operation Genoa: An investigation into the manufacture and supply of methamphetamine and ephedrine. Michael Cavanagh and David O’Carroll (patched HHs) were involved.179 26 August 2014 Mr Doyle acquired 2014 Volkswagen T5 Multivan vehicle. July–December 2014 Operation Easter: An R v Harding [2016] NZHC 2069.
R v Harding [2017] NZHC 675.R v Rogers [2016] NZHC 1103.
investigation into the manufacture and supply of methamphetamine. Brownie Harding, Jayden Hura, Anthony Mangu, Kiata Sonny Pene, Elijah Rogers (all patched HHs), and Evanda Harding (associate) were involved.180
sentenced to six months’ home detention. Mr Williams was convicted of demanding with intent to steal and aggravated robbery, and was sentenced to two years and three months’ imprisonment.
178 Mr Hutchinson: pleaded guilty to demanding with intent to steal, unlawful possession of a firearm and unlawfully being in an enclosed yard. He was sentenced to two years and three months’ imprisonment. Mr Griffin pleaded guilty to demanding with intent to steal and unlawfully being in an enclosed yard. He was sentenced to six months’ home detention and ordered to pay $3,300 in reparation. Mr Mulitalo pleaded guilty to demanding with intent to steal, unlawful possession of a firearm and unlawfully being in an enclosed yard. He was sentenced to two years and three months’ imprisonment.
179 Mr Cavanagh: convicted on one charge of supplying ephedrine, five charges of money laundering, unlawful possession of a pistol, and dishonestly obtaining a document. He was sentenced to five years and 10 months’ imprisonment. Civil forfeiture orders were made over assets worth approximately $3.7 million associated with Mr Cavanagh and his partner. Mr O’Carroll was convicted of three charges of manufacturing methamphetamine, and sentenced to 16 years and five months’ imprisonment. Various property associated with Mr O’Carroll were forfeited following proceedings under the CPRA.
180 Mr Brownie Harding: pleaded guilty to six charges of manufacturing methamphetamine, three charges of supplying methamphetamine, one charge of possession of methamphetamine for supply, and one charge of participating in an organised criminal group. He was sentenced to 28 years and six months’ imprisonment.
Date Event Judgment reference October–December 2014 Operation Gakarta: An investigation into the manufacture and supply of methamphetamine.
David O’Carroll (patched HH) was involved.181
March–June 2015 Operation Sylvester: An investigation into the manufacture and distribution of methamphetamine.
William Hines, Te Here Maihi Maaka, Travis Sadler (all patched HHs), Thomas Gordon Edwardson (prospect), and Peter Atkinson (associate) were involved.182
Mr Hura: pleaded guilty to five charges of manufacturing methamphetamine and one charge of participating in an organised criminal group. He was sentenced to 16 years and eight months’ imprisonment.
Mr Mangu: pleaded guilty to three charges of manufacturing methamphetamine, five charges of offering to supply methamphetamine, conspiring to supply methamphetamine, and participating in an organised criminal group. He was sentenced to 15 years’ imprisonment.
Mr Pene: found guilty, following a jury trial, of one charge of manufacturing methamphetamine and one charge of participating in an organised criminal group. He was sentenced to nine years’ imprisonment.
Mr Rogers: pleaded guilty to six charges of manufacturing methamphetamine, four charges of offering to supply methamphetamine, four charges of conspiring to supply methamphetamine, possession of materials with intent, possession of precursor substances with intent, possession of equipment with intent, unlawful possession of explosives and participating in an organised criminal group. He was sentenced to 19 years’ imprisonment.
Mr Evanda Harding: pleaded guilty to two charges of possessing pseudoephedrine for supply and one charge of possessing methamphetamine for supply. Subsequently found guilty, following a jury trial, of two charges of manufacturing methamphetamine and one charge of participation in an organised criminal group. He was sentenced to nine years and six months’ imprisonment.
181 Charges against him were ultimately dropped.
182 Mr Hines: found guilty of manufacturing methamphetamine, possession of methamphetamine for supply, possession of materials, five counts of unlawful possession of firearm, unlawful possession of ammunition, and participation in an organised criminal group. He was sentenced to 18 years and six months’ imprisonment, reduced to 17 years on appeal.
Mr Te Here Maihi Maaka: found guilty of manufacturing methamphetamine, possession of methamphetamine for supply, possession of materials, five counts of unlawful possession of a firearm, unlawful possession of ammunition, and participating in an organised criminal group. He was sentenced to 16 years and two months’ imprisonment, reduced to 14 years and eight months on appeal.
Mr Sadler: found guilty of manufacturing methamphetamine, possession of methamphetamine for supply, possession of materials, five charges of unlawful possession of a firearm, possession of ammunition and participating in an organised criminal group. He was sentenced to 18 years and two months’ imprisonment, reduced to 16 years and 8 months on appeal.
Mr Edwardson: found guilty of supplying methamphetamine, procuring methamphetamine, possession of methamphetamine for supply, possession of materials, five charges of unlawful possession of a firearm, possession of ammunition and participating in an organised criminal group. He was sentenced to six years’ imprisonment.Mr Atkinson: convicted of manufacturing methamphetamine and attempting to manufacture methamphetamine, and was sentenced to 17 years’ imprisonment.
Date Event Judgment reference August 2015–March 2016 Operation Bunk: An investigation into the manufacture and supply of controlled drugs.
Francee Page and Graham Te Awa (then patched HHs), Roger Al-Hachache, Saba Khalifeh and Gerrard Parkes (associates) were involved.183
R v Al Hachache [2017] NZHC 1929.
R v Parkes [2017] NZHC 3077.
February 2016 Operation Sisal: An investigation into the kidnapping and manslaughter of Jindarat Prutsiriporn. R v Paleaaesina [2017] NZHC 1038.
R v Brown [2017] NZHC 1241.
Tevita Fungupo, Becoylee Paleaaesina (patched HHs), Joseph Haurua, Tafito Vaifale (prospects), Luigi Havea and Panepasa Havea (associates) were involved.184
March–April 2016 Operation Arrow: An investigation into methamphetamine offending by Phillip McFarland.185 28 February 2011–17 Ebony Doyle replaces Mr March 2017 Doyle as sole director of Russell Street Enterprises until the company was removed from the Companies Office Register.
183 Mr Page: convicted of supplying methamphetamine and possession of methamphetamine for supply, and was sentenced to five years and three months’ imprisonment.
Mr Al-Hachache: convicted of four charges of supplying methamphetamine, supplying ephedrine, and possession of ephedrine for supply. He was sentenced to eight years’ imprisonment.
Mr Parkes: convicted of 10 charges of supplying methamphetamine, possession of methamphetamine for supply, and possession of a precursor substance. He was sentenced to 11 years’ imprisonment.
Mr Khalifeh: charged with offering to supply methamphetamine. However, the charge was ultimately withdrawn.
184 Mr Paleaaesina: pleaded guilty to kidnapping. He was sentenced to 12 months’ home detention. Mr P Havea: pleaded guilty to kidnapping. He was sentenced to three years and eight months’ imprisonment.
Mr L Havea: found guilty of kidnapping and manslaughter. He was sentenced to 10 years and three months’ imprisonment.
Mr Vaifale: found guilty of kidnapping and manslaughter. He was sentenced to seven years and 10 months’ imprisonment.
Mr Haurua: found guilty of kidnapping and manslaughter. He was sentenced to six years and six months’ imprisonment.185 Upon searching Mr McFarland’s home address in April 2016, Police found five grams of methamphetamine, along with cannabis, firearms, stolen property, and diaries and ledgers which refer to payments made to the HH. He was charged with possession for supply and convicted of possession simpliciter. He was sentenced to one month’s imprisonment.
Date Event Judgment reference 13 December 2002–
28 July 2017 &
2 August 2017–
9 August 2017
Mr Doyle owned a Holden VT, registration KSR558 (later changed to East 88). 25 September 2017 Termination of Operation Coin. 22 December 2017 Venning J makes without notice restraining orders. Commissioner of Police v Doyle [2017] NZHC 2308. 3 May 2018 Powell J grants Commissioner of Police v Commissioner’s application Doyle HC Auckland CIV- for restraining orders (dated 28 2017-404-2149, 3 May 2018 September 2017) in respect of (Minute of Powell J). real estate, bank funds and cash, and vehicles held by the Doyle entities and/or Mr Doyle. August 2019–May 2020 Operation Nest Egg: An investigation into supply of methamphetamine.
Brodie Collins-Haskins, Cruz Tamatea and Charlie-Dene Taueki (all Mongols members) were involved in supplying methamphetamine to HH.
April 2020–February 2021 Operation Parore: An investigation into supply of methamphetamine.
Tamati Morrison (patched HH), Cody Jessup and Sione Puloka (associates) were involved.186
R v Morrison [2022] NZDC 26034.
R v Jessup [2022] NZDC 19697.
R v Puloka [2022] NZDC 17073.
26 and 31 August 2021 Tucker & Co Retainer, containing $34,500.00, and Dominion Law Retainer, containing $174,611.60 seized. 24 February 2022 Venning J grants orders as sought in Restraint Application in relation to retainer funds. Commissioner of Police v Doyle HC Auckland CIV- 2017-404-2149, 24 February
2022 (Minute of Venning J).
186 Mr Morrison: pleaded guilty to charges of possession of methamphetamine for supply, offering to supply methamphetamine and supplying methamphetamine. He was sentenced to four and a half years’ imprisonment.
Mr Jessup: pleaded guilty to charges of possession of methamphetamine for supply and 2 charges of supplying methamphetamine. He was sentenced to nine months’ home detention.
Mr Puloka: pleaded guilty to money laundering, resisting arrest, and failing to carry out obligations under the Search and Surveillance Act 2012. He was sentenced to 80 hours’ community work.
SCHEDULE 2
PATCHED HEAD HUNTERS NAMED IN EVIDENCE
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history Ashby, Joshua Michael Paul Williams Magnet Convicted of conspiring to commit aggravated robbery, and sentenced to six months’ home detention. Cavanagh, Michael John Grant Sowter Genoa Convicted on one charge of supplying ephedrine, five charges of money laundering, unlawful possession of a pistol, and dishonestly obtaining a document. He was sentenced to five years and 10 months’ imprisonment. Civil forfeiture orders were made over assets worth approximately $3.7 million associated with Mr Cavanagh and his partner. Cleven, Peter187 Darryl James Brazier Mexico Charged in 1999–2000 with supplying methamphetamine and cannabis. He was found not guilty. Collett, Bryan Wayne Megan Goldie Two Tonne Mr Collett pleaded guilty to charges of possession of cannabis for supply and unlawful possession of a restricted weapon. He was sentenced to 200 hours community work. Mr Collett has an extensive criminal history including convictions for cultivating cannabis (2015), numerous offences for unlawful possession of firearms (2015, 2013, 2007), aggravated robbery (1991), attempted arson (1985), theft (1985), and burglary (1985). Daly, Stephen (also known as Stephen Delahoya) Hamish MacDonald Morepork One of three Head Hunters charged with the kidnapping of Mr X. Charge dismissed as Mr X left for China and did not give evidence. David Hamilton N/A Stephen Daly pleaded guilty to one charge of possession of equipment and was sentenced to six months’ home detention. Stephen Daly has a lengthy criminal history, including theft (1999), aggravated assault (2010), supplying methamphetamine (2012), and a litany of driving offences between 2003 and 2019. Daly, Tau Te Hamiora David Hamilton N/A Acted together with Stephen Daly and Tony Spice in suspected manufacturing of methamphetamine in 2008. Charges were ultimately withdrawn. Has 17 criminal convictions, mostly for low- level driving and disorderly offences. He
received his first and only sentence of imprisonment to date in 2013, which was six
187 Now deceased.
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history months’ imprisonment for driving whilst disqualified. Dunn, David Rodney Honan Twickers Convicted of three charges of offering to supply methamphetamine and one charge of offering to supply MDMA. He was sentenced to one year and six months’ imprisonment. Megan Goldie Two Tonne Search of Mr Dunn’s address found two grams of methamphetamine, a glass pipe and $8,710 cash. Mr Dunn pleaded guilty to possession of methamphetamine and utensils, and was sentenced to 40 hours community work. Prior convictions include unlawful possession of firearm (2007, 2014, 2018), possession of methamphetamine for supply (2013), receiving (1993, 2010, 2012), supplying methamphetamine (2008), supplying ecstasy (2008), manufacturing Class B drug (2003), conspiring to deal in Class B drug (2003), theft (1993) and rape (1993). Fungupo, Tevita188 Shaun Allen Vickers Sisal Involved in the kidnapping and death of Jindarat Prutsiriporn. He was not charged. Glassie, Christopher David Hale Crosby Clarence Convicted of aggravated robbery in relation to the “taxing” of James Botrill for allegedly selling cannabis. A 1997 Nissan Laurel Cellencia was taken, and demanding with intent to steal, relating to the “taxing” of Natasha Frehner for using the Head Hunters name without authority — nothing was ultimately taken due to Police interruption.
He was sentenced to three years and three months’ imprisonment.
Harding, Brownie Andrew Cecil Dunhill Easter Mr Harding pleaded guilty to six charges of manufacturing methamphetamine, three charges of supplying methamphetamine, one charge of possession of methamphetamine for supply, and one charge of participating in an organised criminal group. He was sentenced to 28 years and six months’ imprisonment. Harmer, Netana David Hale Crosby Clarence Convicted of unlawful possession of an offensive weapon, demanding with intent to steal, and aggravated robbery. He was sentenced to three years and two months’ imprisonment. Hines, William John Grant Sowter Sylvester Convicted of manufacturing methamphetamine, possession of methamphetamine for supply, possession of precursor substances with intent to manufacture methamphetamine, five counts of unlawful possession of firearm, unlawful
possession of ammunition, and participation in an organised criminal group. Sentenced to 18
188 Prospect at the time of Operation Sisal, has since been patched.
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history years and six months’ imprisonment, reduced to 17 years on appeal. Hura, Jayden Andrew Cecil Dunhill Easter Pleaded guilty to five charges of manufacturing methamphetamine and one charge of participating in an organised criminal group.
He was sentenced to 16 years and eight months’ imprisonment.
Hutchinson, Thomas Bernadette Monica Marie Kelly Salt Pleaded guilty to demanding with intent to steal, unlawful possession of a firearm, and unlawfully being in an enclosed yard. He was sentenced to two years and three months’ imprisonment. Maaka, Falco Geoffrey Kevin Dooley N/A Convicted and sentenced to three months’ imprisonment for speaking threateningly. Mr Maaka’s criminal history include convictions for various assaults (23 convictions between 2004 and 2019), manufacturing methamphetamine (2017), demanding with intent to steal (2012), unlawful taking motor vehicle (2005 and 2010), and aggravated
robbery (2005).
Maaka, Te Here Maihi Hamish MacDonald Morepork Charges dismissed in respect of Morepork due to Mr X’s flight to China. John Grant Sowter Sylvester Convicted of manufacturing methamphetamine, possession of methamphetamine for supply, possession of materials, five counts of unlawful possession of a firearm, unlawful possession of ammunition, and participating in an organised criminal group. Sentenced to 16 years and two months’ imprisonment, reduced to 14 years and eight months on appeal. Previous convictions include possession of cannabis for supply (2013), demanding with intent to steal (2006), theft (2004), aggravated robbery (2001), burglary (2000), and receiving
(1998).
Mangi, Andrew David Hale Crosby Clarence Convicted of demanding with intent to steal, theft and aggravated robbery. He was sentenced to two years and 11 months’ imprisonment. Mangu, Anthony Andrew Cecil Dunhill Easter Convicted of three charges of manufacturing methamphetamine, five charges of offering to supply methamphetamine, conspiring to supply methamphetamine, and participating in an organised criminal group. He was sentenced to 15 years’ imprisonment with a MPI of seven and a half years. Marsh, Dwayne Rodney Honan Twickers Convicted of conspiring to manufacture methamphetamine; three charges of supplying methamphetamine, three charges of conspiring to supply methamphetamine, 10 charges of
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history offering to supply methamphetamine, and one charge of conspiring to supply MDMA. He was sentenced to 10 years’ imprisonment. McFarland, Phillip189 Raymond Mark Sunkel Arrow Charged with possession of methamphetamine for supply and convicted of possession simpliciter and sentenced to one month’s imprisonment. Mr McFarland has extensive, previous convictions including cultivating cannabis (1982, 1986), possession of cannabis plant for supply (1986), and burglary (1972, 1974, 1975,
1979, and 1981)
Morrison, Tamati Andrew Stevenson
Ross Barnett
Nest Egg
Parore
Played a leading role in Operation Parore offending — instructed and directed Cody Jessup and Sione Puloka to transact drug deals in the Wellington area. Also received methamphetamine from members of the Mongols gang (Operation Nest Egg). Convicted of charges of possession of methamphetamine for supply, offering to supply methamphetamine, and supplying methamphetamine, and was sentenced to four and a half years’ imprisonment. Mr Morrison’s prior convictions include obstructing the course of justice (2018), suppling methamphetamine (2017), theft (2011
and 2012), and burglary (2010).
O’Carroll, David John Grant Sowter Genoa Convicted of three charges of manufacturing methamphetamine, and sentenced to 16 years and five months’ imprisonment, with a MPI of six years and nine months. Various property associated with Mr O’Carroll was forfeited following proceedings under the CPRA. Gakarta Investigated Mr O’Carroll for suspected manufacture and supply of methamphetamine. Over $1 million cash was found at Mr O’Carroll’s house, but criminal charges were ultimately dismissed. Page, Francee190 Andrew Cecil Dunhill Bunk Convicted of supplying methamphetamine and possession of methamphetamine for supply. He was sentenced to five years and three months’ imprisonment. Paleaaesina, Becoylee191 Shaun Allen Vickers Sisal Pleaded guilty to kidnapping. Sentenced to 12 months’ home detention. Pene, Kiata Sonny Andrew Cecil Dunhill Easter Found guilty of one charge of manufacturing methamphetamine and one charge of
189 Now deceased.
190 Former patched member.
191 Prospect at the time of Operation Sisal, has since been patched.
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history participating in an organised criminal group. He was sentenced to nine years’ imprisonment. Raumati, Patrick192 Nicholas Corley N/A Jointly charged with Steven Tainui in a robbery against Mr Y in January 2010. As Mr Y did not give evidence, the charge against Mr Raumati was dismissed. Mr Raumati has an extensive criminal history, including for burglary (2012), wounding with intent to cause grievous bodily harm (2002), unlawfully takes motor vehicle (2002), and theft (1990, 1996, and 2002).
Between 2005 and 2006, and then 2009–2014, he paid a total $34,200 to the TWTTIN Trust, using “rent” related references, despite declaring no income during 2013–2015, and being in prison from 2012 to 2016.
Rogers, Elijah Andrew Cecil Dunhill Easter Pleaded guilty six charges of manufacturing methamphetamine, four charges of offering to supply methamphetamine, four charges of conspiring to supply methamphetamine, possession of materials with intent, possession of precursor substances with intent, possession of equipment with intent, unlawful possession of explosives, and participating in an organised criminal group. He was sentenced to 19 years’ imprisonment with a MPI of nine and a half years. Sadler, Travis John Grant Sowter Sylvester Convicted of manufacturing methamphetamine, possession of methamphetamine for supply, possession of precursors for manufacture of methamphetamine, five charges of unlawful possession of a firearm, unlawful possession of ammunition, and participating in an organised criminal group. He was sentenced to 16 years and eight months’ imprisonment. Mr Sadler’s extensive criminal history includes convictions for unlawfully taking a motor vehicle (1996, 1997, 2000, and 2011), receiving
(1999 and 2011), theft (1997, 2001, 2003, and
2009), and burglary (1996, 1997, 2003, and
2009).
Spice, Tony Donald193 David Hamilton N/A Pleaded guilty to two charges of possessing equipment and materials, and was sentenced to 18 months’ imprisonment. Mr Spice’s prior convictions include receiving (2009) and burglary (1998).
192 Former patched member.
193 Former patched member.
Name Affidavit Deponent Operation Name Convictions, sentence, and criminal history Tainui, Steven Nicholas Corley N/A Jointly charged with Mr Raumati in a robbery against Bryan O’Neil in January 2010. As Mr Y did not give evidence, the charge was dismissed. Michael Williams Magnet Pleaded guilty to conspiracy to commit aggravated robbery. He was sentenced to 10 months’ home detention. Te Awa, Graham Andrew Cecil Dunhill Bunk Mr Te Awa was one of the beneficiaries of the Operation Bunk drug offending, by receiving payments from the syndicate in return for protection by the HHMC.
SCHEDULE 3 - MSD BENEFITS RECEIVED
All MSD benefits received by Wayne Stephen Doyle from 5 May 1994 to 11
December 2017
Benefit Duration Amount Received Income Tested Asset tested Unemployment benefit194 5 May 1994–12 August
1996
$87,445.63 Community wage jobseeker195 27 March 2001–30 June
2001
Unemployment benefit196 1 July 2001–24 May 2002 Jobseeker support197 17 February 2014–
10 December 2017
Domestic purposes benefit198 24 May 2002–15 July
2013
$150,387.14 Sole parent support199 15 July 2013–17 February
2014
$9,156.47 Special Benefit200 28 March 2003–
3 November 2003
$3,598.57 Temporary Additional Support201 13 March 2007–
11 December 2017
$32,654.15 Unsupported Child Benefit202 4 February 2002–6 May
2002
$145,003.18 28 February 2005–1
January 2007
Emergency Benefit203 3 March 1997–
8 July 1997
$4,373.46 Temporary GST Assistance204 1 October 2010–
31 March 2011
$146.12 Accommodation Supplement205 5 May 1994–
11 December 2017
$125,664.43 Family Tax Credit206 3 March 1997–19
November 2017
$69,681.32 Special Needs Grant207 26 March 2001 $322.40
194 Social Security Act 1964 (as at 10 May 1996), ss 58–59, and sch 9.
195 Social Security Act 1964 (as at 30 March 2001), ss 89–100, and sch 9.
196 Social Security Act 1964 (as at 1 July 2001), ss 89, 90, 97–99A, and sch 9.
197 Social Security Act 1964 (as at 27 September 2010), ss 3(1) and 89, and sch 9.
198 Social Security Act 1964 (as at 27 September 2010), ss 3(1) and 27H, and schs 16 and 17.
199 Social Security Act 1964 (as at 27 September 2010), ss 27B and 70A, and sch. 16 and 17.
200 Social Security Act 1964 (as at 3 November 2003), s 61G.
201 Social Security Act 1964 (as at 27 September 2010), ss 61G.
202 Social Security Act 1964 (as at 27 September 2010), s 29 and sch 4.
203 Social Security Act 1964 (as at 28 July 1997), s 61.
204 “Temporary GST Assistance Programme” (9 September 2010) 115 New Zealand Gazette 3098.
205 Social Security Act (as at 27 September 2010), s 61EC and sch 18.
206 Income Tax Act 1994, ss KD 1–KD 9; and Income Tax Act 2007, ss MC 2–MC 8 and subpart MD.
207 “Special Needs Grant Programme” (28 January 1999) 8 New Zealand Gazette 202.
9 May 2017 $148.20 Total Paid
$628,581.07
SCHEDULE 4
RESTRAINED PROPERTY OF THE DOYLE ENTITIES
Entity
Description of entity
Property owned by entity
TWTTIN Trust
Charitable trust, registered on 13 May 2008. Charities Services Registration number: CC24331.
Funds formerly held in ASB bank account 12-3036-0718675
(suffixes 00, 05, 06, 10–14, 72,
73).
East 88 PHL
Company incorporated by Mr Doyle in 2002. Mr Doyle is sole director, principal shareholder, and sole signatory to company’s bank accounts.
232 Marua Road, Mount Wellington, Auckland.
East 88 Finance
Company incorporated by Mr Kevin Smith, solicitor, in 2003. Mr Doyle replaced Mr Smith as sole director and shareholder of
the company in 2006.
Funds formerly held in ASB bank account 12-3036-
0791637-00.
Russell St Trust
Trust
13 Russell Street, Ponsonby, Auckland.
44 Seabrook Avenue, Hobsonville, Auckland.
Russell St Enterprises
Company incorporated by Mr Doyle in October 2009, with Ebony Doyle appointed director. Shareholdings held by Mr Doyle and his children, Ebony and Cassino Doyle.
Anglo Pacific (AP) Bloodstock Trust
Trust
159 Penrose Road, Penrose, Auckland.
39 Tunis Road, Panmure, Auckland.
NB: The Commissioner has also obtained restraining orders over personal property of Mr Doyle, including a 2014 Volkswagen T5 Multivan motor vehicle and legal retainers, being funds held on account by instructing solicitors. On 3 May 2018, approximately $275,329.70 cash, located by Police at 232 Marua Road on 25 September 2017, also became the subject of a restraining order.
- AGLC
- Commissioner of Police v Doyle [2024] NZHC 2392
- Case
- [2024] NZHC 2392
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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