Commissioner of Police v Doyle
[2023] NZHC 2911
•18 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002149
[2023] NZHC 2911
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
WAYNE STEPHEN DOYLE
First Defendant
HARATA RAEWYN PAPUNI
Second Respondent (deceased)
Hearing: 9 October 2023 Appearances:
M R Harborow and C R Purdon for Applicant
R M Mansfield KC and S L Cogan for First Respondent
Judgment:
18 October 2023
JUDGMENT OF ANDREW J
[Subpoenaed witnesses]
This judgment was delivered by Justice Andrew on 18 October 2023 at 11.30 am
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date………………………..
COMMISSIONER OF POLICE v DOYLE [2023] NZHC 2911 [18 October 2023]
Introduction
[1] The Commissioner of Police applies for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009. This includes a profit forfeiture order against Mr Wayne Doyle in the sum of $12,400,793.00.
[2] The Commissioner alleges that Mr Doyle is the president and senior leader of the Head Hunters motorcycle gang, an organised criminal group said to engage in drug dealing and violent property offending for profit. The role of Mr Doyle in the Head Hunters is a critical issue in this case.
[3] 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 he has not been charged with or convicted of any further criminal offence.
[4] 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 benefited from a variety of significant criminal activity conducted by others, in particular patched members of the Head Hunters. Whether Mr Doyle knowingly benefited from significant criminal activity by others is another critical issue in the case.
[5] In addressing this critical issue, the Commissioner has filed numerous affidavits from police officers and others which contain, as annexures, out of court statements by members and associates of the Head Hunters. In the months preceding trial, the Commissioner obtained, and commenced the service of, a total of 18 subpoenas on these persons whose out of court statements are relied upon by him.
[6]The out of court statements include:
(a)intercepted communications to which a subpoenaed witness was a party;
(b)statements made to Police by a subpoenaed witness, whether pursuant to an examination order1 or otherwise; and
(c)relevant notes of evidence from adjunct criminal trials.
[7] The respondents challenge the admissibility of these out of court statements, contending that they are inadmissible hearsay.
[8] After noting that the substance of the evidence from the subpoenaed witnesses confirms that the Head Hunters are an organised criminal group engaging in criminal offending for profit, the Commissioner’s memorandum of 12 October 2023 records:
For obvious reasons, the Commissioner did not attempt to obtain affidavits from the Subpoenaed Witnesses. The Commissioner could not vouch for the truthfulness of their testimony in Court proceedings against a patched member of the Head Hunters, let alone the President. Instead, the Commissioner relies on their out of Court statements – made in circumstances which establish their reliability.
[9] That memorandum further records the reason for issuing subpoenas was to respond to any application that might be made to exclude those statements as hearsay.
[10] The Commissioner intends to make these subpoenaed witnesses available for cross-examination. It would then be for counsel for the respondents to elect whether to cross-examine. The respondents oppose that proposal, contending that this is an improper attempt by the Commissioner to try and cure, at a very late stage, the evidential difficulties, particularly hearsay, contained in the evidence.
[11] This judgment addresses the issue of whether the Commissioner can adopt the procedure he proposes.
Background
[12] In his judgment of 15 July 2021 declining an application for an adjournment of this proceeding, Lang J held:2
1 Pursuant to the Criminal Proceeds (Recovery) Act 2009, s 107.
2 Commissioner of Police v Doyle [2021] NZHC 1783.
Challenges to admissibility of evidence
[6] I do not consider this issue warrants an adjournment of the trial. This is a civil proceeding and as such will be tried before a Judge and not a jury. A Judge will be able to identify those passages in the Commissioner’s affidavits that are objectionable because they amount to submission or unsubstantiated opinion. As Mr Harborow points out for the Commissioner, these are issues that would ordinarily be dealt with at trial. Alternatively, if a pre-trial hearing is necessary this could be arranged within a short period of time.
[13] The respondents raised admissibility concerns regarding the Commissioner’s evidence in 2021, but foreshadowed applications were not pursued.3 On 26 April this year the Commissioner wrote to counsel for the respondents seeking engagement and clarification on issues of admissibility. The Commissioner expressly sought an indication from the respondents’ lawyers as to which persons, whose out of court statements the Commissioner relies upon, would be required for cross-examination. No response was received to the Commissioner’s letter.
[14] In his pre-trial minute of 5 October 2023, Venning J addressed the Commissioner’s application to produce three prisoners, being three of the 18 subpoenaed witnesses. His Honour declined to make orders to produce those prisoners and recorded Mr Mansfield’s objection to “a further 17 witnesses” being subpoenaed to give evidence. Venning J also referred to the requirements of rr 9.7(5) and 9.7(6) of the High Court Rules 2016.
Analysis and decision
[15] The Commissioner contends that it would somewhat surprising if the Commissioner was prevented from addressing hearsay objections by making witnesses available for cross-examination. However, the procedure proposed by the Commissioner is not the correct procedure prescribed by the High Court Rules for making a witness available for cross-examination.
[16] These are Part 19 (originating application) proceedings that have proceeded by way of affidavit evidence.
3 Affidavit of Wayne Doyle sworn 12 July 2021 and Memorandum of Counsel for Respondents dated 25 July 2021.
[17] Rule 9.74 of the High Court Rules expressly refers to the cross-examination of a person who has sworn an affidavit, with r 19.14 confirming that this rule applies to a proceeding commenced by originating application.4 It cannot be used to cure any evidential defect (i.e. hearsay) that the respondents have raised. None of the subpoenaed persons have provided a sworn affidavit, nor have they been asked to do so. Likewise, there is no r 9.75 application (person refusing to make affidavit) before the Court or any real basis for considering an application of that kind. Indeed, the Commissioner has expressly disavowed any reliance upon r 9.75.
[18] It is clear from the Commissioner’s case that from the outset he has intended to rely upon out of court statements by third parties. As noted above, that evidence is important in this case in establishing the critical element of whether Mr Doyle has knowingly benefited from the significant criminal offending of others (i.e. third parties). The Commissioner’s proposal cannot and will not somehow convert these out of court statements into the sworn, first-hand testimony of the subpoenaed witnesses. They would each need to swear, whether in an affidavit or on oath in the witness box, that the factual bases of their out of court statements were in fact true and correct. However, I understand that the Commissioner does not intend to proceed on that basis. He now makes it clear that he could not vouch for the truthfulness of their testimony against Mr Doyle in court proceedings and instead relies on the out of court statements.
[19] It may be that the relevant information the subpoenaed witnesses have in this proceeding has already been filed in documentary form, as the Commissioner submits. However, the rules do not permit simply making them available for cross-examination in circumstances where they have not filed affidavits themselves and where r 9.75 is not invoked.
[20] The Commissioner has an obligation to file affidavit evidence in admissible form in accordance with r 9.76(1)(d)(i) of the High Court Rules, which expressly applies to Part 19 applications.5 I accept, as is the case here, that he may seek to rely
4 I note also that r 19.10(1)(i) provides that the rules governing affidavits in r 7.29 apply to proceedings commenced by originating application, and accordingly rules 9.75 to 9.88 are applicable.
5 Commissioner of Police v Cheng [2023] NZHC 606 at [23].
on s 18 of the Evidence Act 2006 and any other relevant provision to persuade me that the out of court statements are admissible and can be relied upon. Those are matters for me to determine as part of my substantive judgment.
[21] It is regrettable that counsel for the respondents did not respond to the Commissioner’s communication of 26 April 2023 seeking engagement on the issue of admissibility and in particular the issue of the out of court statements. However, as Cooke J held in Commissioner of Police v Cheng, r 9.11 of the High Court Rules does not apply to evidence filed in support of originating applications under Part 19.6 I agree with the following conclusions of Cooke J:7
The short point response to this argument is that r 9.11 of the High Court Rules does not apply to evidence filed in support of originating applications under Part 19. Rule 19.10 specifies what other rules apply to originating applications. Rule 19.10(1)(i) provides that the rules governing affidavits in r 7.9, and accordingly rr 9.75–9.88 are applicable. That does not include r 9.11. That is not to say that parties should not signal well in advance of a hearing any admissibility concerns in a Part 19 proceeding as the Court said in Drake.8 A party taking the other by surprise at the hearing is unlikely to be treated sympathetically. But the Commissioner has an obligation to file only admissible evidence in support of an application in accordance with r 9.76(1)(d)(i) which does expressly apply to Part 19 applications. The admissibility issue here was also not a confined one. It affected much of the evidence which had been provided in support of the application.
[22] It may be that, in principle, r 9.75 could be available to the Commissioner. However, the rule only applies where there has been a refusal to make an affidavit and there would of course need to be an evidential basis for the Court to come to that conclusion. In any event, given the Commissioner’s indication that he could not vouch for the truthfulness of their testimony and the apparent likelihood that many of the witnesses would not attend Court and/or answer any questions, there would appear to be little utility in that approach. This might lead to delay and complication arising from the Commissioner having to seek declarations that the witnesses are hostile, as well as the need to address possible discovery applications seeking disclosure of statements made by the witnesses that contradict the particular statements relied upon by the Commissioner.
6 Commissioner of Police v Cheng, above n 5.
7 Commissioner of Police v Cheng, above n 5, at [37].
8 Commissioner of Police v Drake [2017] NZHC 2919.
[23] I record that I will accept the further evidence filed by the Commissioner from Constable Aaron Morris and Constable Simon Beale addressing the service of the subpoenas and discussions with some of the witnesses about the giving of evidence. The Commissioner, as he sees fit, can rely on those affidavits for the purpose of making submissions on admissibility.
Result
[24] I direct that the Commissioner cannot proceed as proposed, namely to make the subpoenaed witnesses available for cross-examination to address any hearsay objections made by the respondents.
[25] That disposes of the current application before the Court. Whether there are other ways the Commissioner can confront and address hearsay objections made by the respondents is for the Commissioner to consider and advance.
Andrew J
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