Commissioner of Police v Doyle
[2021] NZHC 1783
•14 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2149
[2021] NZHC 1783
BETWEEN THE COMMISSIONER OF POLICE
Applicant
AND
WAYNE STEPHEN DOYLE
First Respondent
HARATA RAEWYN PAPUNI
Second Respondent
Hearing: 14 July 2021 Appearances:
M Harborow and C Purdon for Applicant
R Mansfield QC and S L Cogan for Respondents
Judgment:
14 July 2021
Reasons:
15 July 2021
REASONS FOR JUDGMENT OF LANG J
[on application for adjournment of the civil fixture]
This judgment was delivered by me on 15 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Meredith Connell, Auckland
THE COMMISSIONER OF POLICE v DOYLE [2021] NZHC 1783 [14 July 2021]
[1] The Commissioner contends that the respondents, Mr Doyle and Ms Papuni, derived substantial financial benefits from significant criminal activity. This includes drug dealing, benefit fraud, money laundering and other forms of property and dishonesty offences. In this proceeding the Commissioner of Police seeks civil forfeiture orders against the respondents under the Criminal Proceeds (Recovery) Act 2009 (the Act).
[2] The proceeding is currently scheduled to be the subject of a trial of three weeks duration commencing on 23 September 2021. On 21 June 2021 Mr Doyle and Ms Papuni applied for an adjournment of the trial. The Commissioner opposed the trial being adjourned.1
[3] At the conclusion of the hearing on 14 July 2021 I made an order vacating the fixture on 23 September 2021 and directing a new trial of four weeks duration commencing on 11 July 2022. I also directed the respondents to file and serve their evidence no later than 15 October 2021.
[4]I now give reasons for those decisions.
Grounds of application
[5] On the respondents’ behalf Mr Mansfield advances three grounds that he contends justify an adjournment:
(a)The evidence filed on the Commissioner’s behalf contains significant portions of inadmissible evidence and objections to these need to be determined before the respondents serve their evidence.
(b)The respondents wish to pursue an application for leave to appeal to the Court of Appeal against dismissal of their application for an order requiring the Commissioner to file and serve a particularised statement of claim.
1 The application was made in a memorandum filed by the respondents’ counsel dated 21 June 2021. Given the need to deal with the application urgently I did not require a formal application and notice of opposition to be filed.
(c)The respondents require further time to prepare and file their evidence.
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.
Application for leave to appeal to Court of Appeal
[7] This issue arises because the applicants filed an application seeking an order requiring the Commissioner to file a fully particularised statement of claim. Their application was dismissed by Brewer J in a judgment delivered on 27 May 2021.2 Brewer J subsequently dismissed an application by the respondents for leave to appeal to the Court of Appeal.3 The respondents say they should be given an opportunity to seek leave to appeal directly from the Court of Appeal. They do not wish to file and serve their evidence before this issue is determined.
[8] I do not consider this constitutes a valid ground for adjourning the current fixture. This Court has delivered its decision on the respondents’ application and it stands unless and until the Court of Appeal reverses it. If that should happen, or if the Court of Appeal should grant leave to appeal, the viability of the existing fixture would obviously need to be reconsidered. As matters currently stand, however, it would be premature to vacate the fixture to provide the respondents with an opportunity to pursue their application for leave to appeal to the Court of Appeal.
2 Commissioner of Police v Doyle [2021] NZHC 1209.
3 Commissioner of Police v Doyle (No. 2) [2021] NZHC 1619.
Further time is required to prepare the respondents’ evidence
The argument for the Commissioner
[9] The Commissioner considers the respondents have had ample opportunity to prepare their evidence in opposition to the application. Mr Harborow points out that the Commissioner’s evidence was filed and served on 9 May 2020. On 6 September 2020 Gault J made directions requiring the respondents to file and serve their evidence in opposition no later than 31 March 2021. He also directed the Commissioner to file and serve any evidence in reply no later than 30 June 2021.
[10] The respondents did not file and serve their evidence by 31 March 2021. The Commissioner then sought amended timetabling directions. On 21 April 2021 Moore J directed the respondents to file and serve their evidence in opposition by 14 June 2021. He directed the Commissioner to file and serve any evidence in reply no later than 16 August 2021.
[11] The proceeding came before the Court again on 21 June 2021. The minute issued by Nation J on that date contains the following paragraph:
[7] Mr Mansfield said, in any event, the respondent would have been under difficulty in complying even with the suggested extension of the time for them to file affidavits. He says the respondents have engaged a private investigator who is assisting in the assessment of what, I accept, must be very detailed and complex evidence that the Commissioner relies on. Mr Mansfield says they were anticipating they would need at least another four weeks to complete the evidence they have to file.
[12] Mr Harborow contends the history of the proceeding to date demonstrates that the respondents have consistently failed to comply with timetable directions made by the Court and that they have now had ample opportunity to provide evidence in opposition to the Commissioner’s claim. He submits the Court should make “unless” orders prohibiting the respondents from defending the Commissioner’s claim unless they file and serve their evidence no later than 23 July 2021. In that event the Commissioner would accept a truncated date by which to file and serve his evidence in reply. This would enable the fixture commencing on 23 September 2021 to be maintained.
The argument for the respondents
[13]Mr Doyle has filed an affidavit in which he deposes:
5.4However, even if Brewer J’s judgment is the final word on the Commissioner’s case, there is simply not enough time to prepare the Respondents’ evidence in the remaining time available.
5.5The Respondents do not have the same extensive powers and resources that the Commissioner has. Our resources are very limited. I have been working closely with a private investigator, Tim McKinnel, to prepare the Respondent’s evidence. I have today asked him for his updated estimate as to how much longer he needs to complete the evidence with me. Mr McKinnel advises that, realistically, he needs at least until Friday, 17 September 2021.
5.6We have done the best we can to complete the evidence on time given the time and resources available to us, and the nature and breadth of the Commissioner’s case. If the Commissioner’s application is successful, the outcome will significantly impact on many people. The Court can be assured that we are taking our opposition very seriously.
5.7I simply ask for a reasonable opportunity to prepare the Respondent’s evidence, after being forced by the Commissioner to wait until 27 May 2021 for an answer to what the Commissioner’s case is. The Respondents had been asking for this since 25 September 2020.
[14] If the respondents cannot file and serve their evidence until 17 September 2021 the fixture commencing on 23 September 2021 plainly cannot proceed.
Context
[15] I accept Mr Mansfield’s submission that, regardless of any timetable directions the Court has made in the past, the present application needs to be viewed in context.
[16] The proceeding commenced on 20 September 2017 when the Commissioner successfully applied on a without notice basis for restraining orders over property owned by the respondents. This included cash held in bank accounts, a motor vehicle, four residential properties and a building used as clubrooms by the Head Hunters Motorcycle Club. The restraining orders were subsequently extended on four occasions, the latest being on 9 April 2021.
[17] The complexity and breadth of the Commissioner’s application for forfeiture orders is reflected by the fact that it took nearly three years for the Commissioner to file and serve his application for civil forfeiture orders. The application relies upon evidence obtained in no less than 16 different police operations undertaken between 1999 and 2016. The Commissioner will also rely on evidence obtained during investigations undertaken by the Ministry of Social Development and the Charities Commission.
[18] In addition, the Commissioner relies on evidence located during the execution of search warrants on nine separate addresses. The police have also conducted examinations under s 107 of the Act on no fewer than 20 separate individuals, including the respondents. Furthermore, the Commissioner’s case involves an analysis of the financial affairs of Mr Doyle and entities associated with him that covers a period of approximately 20 years.
[19] These factors have resulted in the Commissioner filing no fewer than 23 separate affidavits in support of the application for forfeiture orders. Some of these are relatively straightforward but several relate to issues that are of considerable complexity.
[20] The fact that neither respondent has been charged with any of the criminal activity alleged in the present proceeding also adds another dimension to the case. It means the Commissioner must establish the existence of significant criminal activity. That would not be the case where the criminal activity alleged in forfeiture proceedings has already been established through criminal proceedings.
[21] It also needs to be borne in mind that the Commissioner is seeking to obtain forfeiture orders over property having a current total value of approximately $10 million. The stakes are therefore high and the respondents stand to lose assets having very significant value if they cannot successfully counter the Commissioner’s claims.
[22] Furthermore, I accept Mr Mansfield’s submission that it will not be a straightforward matter for the respondents to defend the proceedings. The Commissioner does not contend they were personally responsible for all the criminal
activity that produced the financial benefits they are alleged to have received. Much of that activity is alleged to have been undertaken by others, with a portion of the proceeds being paid to Mr Doyle. The Commissioner alleges Mr Doyle has then used these funds to acquire much of the property that is currently subject to the restraining orders. In order to respond to the application Mr Doyle is therefore effectively required to identify legitimate sources for the funds used to acquire that property.
[23] On the other hand I accept that an adjournment would inevitably be frustrating for the Commissioner. He obviously considers the respondents have been dilatory in their approach to this proceeding and this has resulted in unacceptable delay. However, the property in respect of which the Commissioner seeks forfeiture orders remains subject to the restraining orders and is unlikely to decline in value with the passage of time. The reverse is likely to be the case. It therefore cannot be said that an adjournment would cause any material prejudice to the Commissioner.
Decision
[24] My greatest concern lies in the fact that, as the passage set out at above4 shows, counsel then appearing for the respondents advised Nation J on 21 June 2021 that the respondents’ affidavits could be filed and served within approximately four weeks. The affidavit Mr Doyle has filed in support of the present application is to contrary effect. It now seems that the respondents’ evidence will not be completed until at least 17 September 2021.
[25] During the hearing before me Mr Mansfield submitted that the Minute issued by Nation J on 21 June 2021 does not capture the point he was endeavouring to make. This was that, if the trial was required to proceed on 23 September 2021, it would be necessary for the respondents’ affidavits to be filed and served within four weeks. Mr Mansfield says that he was not thereby accepting this could be achieved.
[26] Given the breadth and complexity of the issues the respondents are required to confront in their evidence I cannot say that the evidence contained in Mr Doyle’s affidavit is false or misleading. I have little option but to accept what he has said on
4 At [11].
oath. I am therefore required to proceed on the basis that the respondents will not be able to complete the preparation of their evidence in opposition to the Commissioner’s application until mid-September 2021.
[27] In part the explanation for the delay that has occurred may flow from the respondents’ application for orders seeking discovery and requiring the Commissioner to file and serve a particularised statement of claim. They filed this on 25 September 2020 and it resulted in the Commissioner providing four separate tranches of discovery between November 2020 and February 2021.
[28] The application for an order requiring the Commissioner to file and serve a particularised statement of claim was initially resolved in December 2020 when counsel for the Commissioner agreed to provide further particulars of the Commissioner’s claims. It then took until 8 March 2021 for the Commissioner to send the respondents a 22- page letter setting out the particulars on which the Commissioner relies. This did not satisfy the respondents. They resurrected their application, and this resulted in the judgments delivered by Brewer J in May and June 2021. It is possible in my view that the respondents may have become side-tracked by these issues and concentrated on them rather than on preparing their evidence in opposition to the Commissioner’s claim.
[29] Regardless of the reasons why the respondents have not yet filed and served their evidence I am satisfied it is no longer practicable to maintain the current trial date. The interests of justice require an adjournment of the fixture to enable the respondents to complete the preparation of their evidence. I therefore vacated the fixture at the conclusion of the hearing on 14 July 2021. In its place I have allocated a fixture of four weeks duration commencing on 11 July 2022.
[30] As I have already observed, I have directed that the respondents are to file and serve their affidavits in opposition to the Commissioner’s claim no later than Friday 15 October 2021. I do not make “unless” orders at this stage but I record my advice to Mr Mansfield that, if the respondents do not comply with this direction, it is highly likely the Court will make “unless” orders when the matter is next called.
Next event
[31] The proceeding is to be listed for mention in the Duty Judge List on Monday 18 October 2021 at 10 am to ensure the respondents’ evidence has been filed and served. Directions can be given at that time for the filing and service of the Commissioner’s evidence in reply and any other pre-trial directions that need to be made.
Lang J
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