Commissioner of Police v Gray

[2015] NZHC 377

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002553 [2015] NZHC 377

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ANTONY FREDERICK GRAY Respondent

Hearing:	(On the papers)
Counsel:	Katie Hogan for the Applicant Paul Dacre QC for the Respondent
Judgment:	6 March 2015

JUDGMENT OF MOORE J

This judgment was delivered by  on 6 March 2015 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

Mr Dacre QC, Auckland

COMMISSIONER OF POLICE v GRAY [2015] NZHC 377 [6 March 2015]

[1]      The parties seek this Court’s approval under s 95 of the Criminal Proceeds

(Recovery) Act 2009 (“the Act”) to approve a settlement.

[2]      The background is that on 20 June 2013 various restraining and forfeiture orders were made in respect of the following property:

(a)       $80,5000 Whitehills Cash; (b)   $215 Gray Cash;

(c)       $34,642.41 ASB proceeds; (d)  Porsche;

(e)       Range Rover; and

(f)       Holden.

[3]      Mr Antony Frederick Gray, the respondent, filed a notice of opposition on

18 June 2013 but did not file any evidence in opposition.

[4]      Interested parties have been served and have taken no steps in the proceeding. Following the making of the restraining orders on 20 June 2013 the vehicles have been sold.  As at 17 February 2015 a total of $177,507.92 (including interest) was held by the Official Assignee.

[5]      The Commissioner’s application was adjourned at various times pending resolution of the criminal proceedings involving Mr Gray as a defendant.  He was later  convicted  of  numerous  offences  on  17  October  2014  and  sentenced  on

21 November 2014.

[6]      Mr Gray and the Commissioner of Police have now reached a settlement which includes the following:

(a)       Mr  Gray will  abandon  his  opposition  to  the  application  for  asset forfeiture orders;

(b)the Commissioner of Police will abandon his application for a profit forfeiture order; and

(c)       costs will lie where they fall.

[7]      One minor complication is that in the course of sentencing Mr Gray the District Court Judge purported to forfeit the Whitehills Cash and the Gray Cash under s 32 of the Misuse of Drugs Act 1975.  It appears that the Judge was not aware of the present proceedings.  Counsel for the Commissioner and Mr Gray, in a joint memorandum, submit that the purported forfeiture under the Misuse of Drugs Act was ultra vires and of no effect and that the Whitecalls Cash and Gray Cash should be made the subject of asset forfeiture orders under the Act.   In any event, both counsel are agreed that the net effect is the same irrespective of the source of the jurisdiction; the cash will go to the Crown.

[8]      Under  s  95  of  the  Act  a  settlement  agreement  reached  between  the

Commissioner and another party is required to be approved by this Court.

[9]      This Court must approve settlement if it is satisfied it is consistent with: (a)  the purposes of the Act; and

(b)      the overall interest of justice.

[10]     As this Court has previously observed, Parliament has entrusted the Court with a supervisory jurisdiction to ensure that settlements are consistent with the

parliamentary  intention.1     One  of  the  primary  purposes  of  the  Act  is  the

1 Commissioner of Police v Know-All Group Limited & Anor, High Court Auckland, CIV-2010-404-

403, 7 November 2011, per Brewer J at [11].

establishment of a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity.2

[11]     The parties submit that the settlement arrived at between them is “consistent

with the purposes of [the] Act and the overall interests of justice”.

[12]     In particular, the parties submit that:

(a)      there will be a saving of time and especially cost if the matter can be resolved by consent without a need for hearing;

(b)on  the  balance  of  probabilities  the  restrained  assets  are  tainted property because they have wholly (or in part) been acquired as a result of significant criminal activity and/or directly or indirectly derived from significant criminal activity.

[13]     I am satisfied that in all the circumstances the settlement is consistent with the purposes and scheme of the Act and the overall interests of justice.   In those circumstances this Court is required to approve the settlement.

[14]     Accordingly, I make the following orders upon settlement being approved namely:

(a)       the following property vests in the Crown absolutely and is to be in

the Official Assignee’s custody and control:

(i)       $80,500 cash sized by Police on 17 April 2013 from Mr Gray’s

home address of 307 Whitehills Road, Waitoki;

(ii)$215.00 cash sized by Police on 17 April 2013 from Mr Gray at the time of his arrest for several matters including supplying methamphetamine  and  possession  of  methamphetamine  for

supply;

2 Criminal Proceeds (Recovery) Act 2009, s 3(1)(a).

(iii)     A total  of  $34,642.41  seized  from ASB  accounts  12-3035-

0430055 suffix 51 and 57 in the name of Mr Gray on 19 April

2013;

(iv)2003 Porsche Cayenne S registration GUH712, VIN number WP1ZZZPZ4LA45862 registered to Mr Gray, currently outstanding;

(v)2003 Landrover Range Rover registration GUH711 registered to Samantha Jodi Adriaanse, located on 22 April 2013 at 307

Whitehills Road, Waitoki;

(vi)     2008 Holden SSV Utility registration GNG999, VIN number

6G1EP42H39L170307 registered to William James Cosgrove, currently outstanding; and

(b)      costs lie where they fall.

Moore J