Commissioner of Police v Duncan

[2023] NZHC 2482

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2010-470-933

[2023] NZHC 2482

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ROYCE ALLAN DUNCAN

First Respondent

AND

ALISON JUSTINE DUNCAN

Second Respondent

AND

KENNEDY O’CONNOR WILLIAMS

Third Respondent

AND

NATIONAL BANK OF NEW ZEALAND

Fourth Respondent

Hearing:

25 July 2023

Appearances:

M R Harborow for the Applicant

W T Nabney for the First Respondent

No appearance by or on behalf of the third and fourth Respondents

Judgment:

5 September 2023

JUDGMENT OF POWELL J

This judgment was delivered by me on 05 September 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v ROYCE ALLAN DUNCAN [2023] NZHC 2482 [5 September 2023]

[1]                  In 2011 Andrews J made a profit forfeiture order against Mr Duncan in the sum of $1,872,963.00 (“the profit forfeiture judgment”).1 In accordance with the judgment a large amount of property which had been restrained was sold but only $304,882.50 was recovered, leaving a shortfall of $1,568,080.50.

[2]                  Not long after the orders were made Mr Duncan pleaded guilty to and was sentenced for serious drug-related offending for which he received 15 years’ imprisonment.2 He was released on parole in 2018.

[3]                  On 15 December 2021 the Police executed a search warrant at Mr Duncan’s address in Tauranga. $37,222 in cash was seized along with a firearm (a pistol), assorted ammunition, small quantities of drugs, and drug utensils. Mr Duncan was subsequently convicted and sentenced for unlawful possession of the pistol.

[4]                  The Official Assignee seeks leave to enforce the profit forfeiture judgment against Mr Duncan. Specifically a sale order is sought to enable the Official Assignee to retain the $37,222 found during the execution of the search warrant and currently held by the Police. Leave is required because more than six years have elapsed since the profit forfeiture judgment.3

[5]The application for leave to enforce the judgment is opposed by Mr Duncan.

The case for Mr Duncan

[6]                  Mr Duncan has deposed that he had received a bequest of $48,000 from his father and the $37,222 seized by Police represents the balance of that sum following a number of transactions undertaken by Mr Duncan involving buying and selling a motorcycle and various cars, as well as taking into account monies expended renovating/rebuilding Mr Duncan’s home and general living costs. Mr Nabney, on behalf of Mr Duncan, submitted that I should exercise my discretion not to allow

1      Commissioner of Police v Duncan HC Tauranga CIV-2010-470-000933, 11 October 2011 at [163(b)].

2      R v Duncan [2013] NZHC 193 at [73].

3      High Court Rules 2016, r 17.9(2)(b).

enforcement to give Mr Duncan the opportunity to get on with his life utilising money that was not in any way tainted.

Discussion

[7]                  There is no dispute that the profit forfeiture order is a judgment and creates a debt that remains outstanding. In particular s 55(4) of the Criminal Proceeds (Recovering) Act 2009 (“the Act”) provides:

A profit forfeiture order is enforceable as an order made as a result of civil proceedings instituted by the Crown against the person to recover a debt due to it, and the maximum recoverable amount is recoverable from the respondent by the Official Assignee on behalf of the Crown as a debt due to the Crown.

[8]                  Section 83(4) of the Act likewise makes it clear that in the event a profit forfeiture order is not satisfied by the sale of specified property the Official Assignee may recover:

… by any lawful means, the balance of the maximum recoverable amount that remains due to the Crown, after the Crown is paid a sum less than the maximum recoverable amount under the provision.

[9]The Court of Appeal noted in Harrison v Commissioner of Police:4

[50] The wording is clear. The profit forfeiture order is to be treated as a judgment debt due to the Crown recoverable by the Official Assignee. And in our view, contrary to the reasoning adopted in Doorman, the other requirements in s 55 should not be interpreted, particularly in light of the legislative purpose, as qualifying or in any way restricting those words.

…

[52] Nowhere in the Act does it say that the s 83 process [being the sale of specific property] is the only means of enforcing the judgment debt created by virtue of the profit forfeiture order. That is to say, nowhere in the Act does it say that the only means of enforcing the debt is by realising the assets specified in the order. On the contrary, s 83(4) specifically provides that if the Official Assignee’s disposal of the specified property results in the Crown being paid less than the maximum recoverable amount, the Official Assignee is not prevented from recovering by any lawful means the balance of the maximum recoverable amount that remains due to the Crown.

[52] Drawing all these strands together, we conclude that under the Act a profit forfeiture order is designed to do two things: first it creates the debt — which is the maximum recoverable amount — and secondly the order

4      Commissioner of Police v Harrison [2021] NZCA 540, [2022] 2 NZLR 339.

identifies any property to be disposed of if it is proposed to utilise the enforcement mechanism under s 83. The latter is the context in which the obligation under s 52 to specify property in the application for a profit forfeiture order should be understood. The debt can however also be enforced utilising other available enforcements mechanisms outside the Act, whether the property was in existence at the time the forfeiture order was made and specified in the order or is after acquired property

[10]              Given that position I accept Mr Harborow’s submissions that the source of the monies presently in issue is effectively irrelevant. Even if it was relevant, I am satisfied that there is no mention of any bequest at the time the monies were seized by Police. On the contrary, Mr Duncan’s explanations on the day the search warrant was issued and his explanations subsequently given were inconsistent. His later explanations were similar to those considered and rejected by Andrews J.5 I consider the circumstances at the time the cash was discovered, being found along with the pistol, drugs and drug-paraphernalia is simply not consistent with any lawful purpose given Mr Duncan’s previous history.

[11]              In the event, it is not necessary to reach a final conclusion on the provenance of the money. It is clear that the profit forfeiture orders give rise to a debt owing to the Official Assignee and the source of the money is therefore irrelevant. In the circumstances, it would be antithetical to the purpose of the legislation to decline to grant leave. Instead it is appropriate to permit the Official Assignee to retain on behalf of the Crown the monies seized by Police.

Decision

[12]              Leave is granted to enforce the profit forfeiture judgment. The Sheriff at Tauranga is authorised to seize the sum of $37,222 belonging to Royce Allan Duncan currently held in the New Zealand Police Trust account.

[13]The money seized is to be allocated:

(a)To satisfy the costs and expenses executing this order; and

5      See, for example, Commissioner of Police v Duncan, above n 1, at [33]–[37], [154] and [161].

(b)To discharge a portion of the judgment debt owed by Royce Allan Duncan to the Crown under the profit forfeiture order made by Andrews J on 11 October 2011 under the Criminal Proceeds (Recovery) Act 2009.

Powell J

Solicitors:

Meredith Connell, Auckland

Counsel:
W Nabney