Commissioner of Police v Griffiths

[2019] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-605

[2019] NZHC 1748

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DAVID ROBERT GRIFFITHS

First Respondent

VICTORIA JULIAN
Second Respondent

RYA JEAN EMSHOFF

Third Respondent

Hearing:	On the papers
Appearances:	K E Hogan for Commissioner of Police J Hudson for Second Respondent
Judgment:	24 July 2019

JUDGMENT OF LANG J

[on application for approval of settlement of claim]

This judgment was delivered by me on 24 July 2019 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COMMISSIONER OF POLICE v GRIFFITHS [2019] NZHC 1748 [24 July 2019]

[1]                In this proceeding the Commissioner of Police (the Commissioner) seeks forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondents.

[2]                The Commissioner’s claims against the first and third respondents have now been resolved. The Commissioner and the second respondent, Ms Julian, now seek the Court’s approval under s 95 of the Act to a settlement of the litigation as between themselves.

Background

[3]                The Commissioner filed the proceeding initially seeking restraining orders against property owned by the respondents after the termination of an investigation into the manufacture and supply of methamphetamine by a group of offenders in the wider Auckland area. All three respondents were ultimately charged with and convicted of offending uncovered during the investigation.

[4]                A property attributed to Ms Julian and situated at 5 Matakawau Road, Awhitu has been subject to a restraining order since the commencement of the proceeding. The Commissioner contends that this is tainted property in terms of the Act because it was wholly or partly acquired or derived from the sale of controlled drugs and/or tax evasion.1 The property was recently sold under the authority of orders made by the Court with the consent of the parties, and the Official Assignee holds the net sum of

$85,511.72 from the sale.

The proposed settlement

The proposed settlement provides as follows:

(a)The restraining orders are to be varied to enable the sum of $4,000 to be returned to Ms Julian.

(b)An asset forfeiture order is to be made in relation to the balance of the proceeds of sale.

1      Criminal Proceeds (Recovery) Act 2009, s 5(1).

(c)The Commissioner will forego his application for a profit forfeiture order in the sum of $1.438 million against Ms Julian.

(d)Costs in relation to the present proceeding will lie where they fall.

[5]                The Commissioner is not aware of any other assets belonging to Ms Julian that could be realised to satisfy the profit forfeiture order that he seeks.

Decision

[6]                I am satisfied that the proposed settlement reflects the primary purpose of the Act, which is to provide for the forfeiture of property derived directly or indirectly from significant criminal activity, or property representing the value of a person’s unlawfully derived income.2

[7]                I addition, the settlement represents a sensible resolution of the claim against Ms Julian. It demonstrates that the Commissioner is taking a pragmatic approach to resolution of the proceeding notwithstanding the apparent strength of his case. Although it enables Ms Julian to retain a small proportion of the sale proceeds there is little point in the Commissioner proceeding to trial and obtaining a profit forfeiture order against her that could never be satisfied from restrained or other assets.

[8]                The settlement also allows both parties to achieve certainty as to the outcome of the proceeding, and will result in a significant saving of legal costs for the Commissioner because he will not now need to go to trial on his claim against Ms Julian.

Result

[9]                I approve the proposed settlement under s 95 of the Act, and make orders as sought in para 15(b) of the joint memorandum of counsel dated 16 July 2019.

Lang J

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

Solicitors:

Crown Solicitor, Auckland