Commissioner of Police v Hansen

[2025] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-001539

[2025] NZHC 1850

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRIAN EDWARD HANSEN

First Respondent

AND

KTCANDO LIMITED

Second Respondent

Hearing:	On the papers at Auckland
Judgment:	8 July 2025

JUDGMENT OF POWELL J

[Without notice application for restraining and further orders]

This judgment was delivered by me on 8 July 2025 at 2.30 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v BRIAN EDWARD HANSEN [2025] NZHC 1850 [8 July 2025]

[1]    The Commissioner of Police (Commissioner) applies without notice pursuant to ss 22, 24, and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) as follows:

1The Commissioner of Police (Commissioner) applies to this Court without notice for the following orders under the Criminal Proceeds (Recovery) Act 2009 (Act) and the High Court Rules 2016 (Rules):

(a)restraining orders under ss 24 and/or 25 of the Act, as set out in paragraph 2 below; and

(b)further orders to facilitate the Official Assignee taking and maintaining custody and control of particular property under ss 33, 34 and 35 of the Act, as set out in paragraph 3 below;

on the grounds set out in paragraphs 4 – 6 below.

RESTRAINING ORDERS

2Restraining orders under ss 24 and/or 25 of the Act:

The following property (collectively, Property) shall not be disposed of or dealt with, by any person other than as provided for in this order, and is to be under the Official Assignee’s custody and control:

(a)2024 Tesla Model 3 Long Range All Wheel Drive EV Saloon, registration QJW665 (Tesla), registered person KTCANDO Limited;

(b)2021 Swift Eccles 635 Caravan, registration number 83A83 (Caravan), registered person KTCANDO Limited;

(c)2001 Mercedes-Benz Sprinter 413CDI Motorhome, registration number BUBAHA (Motorhome), registered person Brian Edward Hansen;

(d)8.9 metre Regal 2665 Launch, named KTCANDO2 (Launch), and trailer, registration 23N30 (Trailer), registered person for Trailer Brian Edward Hansen; and

(e)2008 Jaguar XK 4.2 Convertible, registration LYZ674 (Jaguar), registered person Brian Edward Hansen.

FURTHER ORDERS

3Further orders to facilitate the Official Assignee taking and maintaining custody and control of the Property, under ss 33, 34 and 35 of the Act:

(a)Members of the Police and of the Official Assignee’s office may go onto and into property, provided there are reasonable grounds to believe the Property (and any keys) will be located there, including specifically:

(i)5 Dowd Place, Flat Bush, Auckland; and

(ii)B Block, 18 Ormiston Road, East Tamaki, Auckland.

(b)In the event members of the Police and/or Official Assignee’s office are unable to identify any other functioning and roadworthy vehicle that could be utilised by Mr Hansen for matters necessary for the care of Katie Hansen, the Tesla will remain in Mr Hansen’s possession for his use.

[Footnotes omitted]

[2]    A detailed memorandum has been filed in support of the application, together with no less than five affidavits in support.

[3]    The present case is somewhat unusual. The evidence filed by the Commissioner discloses that the first respondent, Brian Hansen, is a 77-year-old pensioner receiving superannuation and living in a Housing New Zealand Property. Mr Hansen is responsible for caring for his daughter Katie Hansen. Ms Hansen is currently 39 years-old and has a high needs intellectual disability that requires constant care. As a result of her disability, Ms Hansen is entitled to various benefits and streams of Government funding, including individualised funding (IF), which is the subject of the present proceedings. Mr Hansen is also the sole shareholder and one of two directors of the second defendant, KTCANDO Limited, which was named on the IF claim forms as having provided support to Ms Hansen.

[4]    While there is no dispute that Mr Hansen has provided appropriate care to  Ms Hansen, it is contended by the Commissioner that the terms of the IF made it clear that a parent, spouse, or person residing with the disabled person was not allowed to claim funding payments  for  themselves.  The  Commissioner’s  position  is  that  Mr Hansen was well aware of this requirement, but the amounts he invoiced against the IF on behalf of and KTCANDO Ltd were principally for the time he spent caring for Ms Hansen rather than for the payment of third party carers.

[5]    As a result, Mr Hansen was charged with obtaining by deception.1 The charge went to trial in March 2025 and Mr Hansen was found not guilty. It does not appear that either of Ministry of Health, or the Ministry of Disabled People had made any attempt to recover all or any of the IF sums advanced to Mr Hansen.

1      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.

[6]    Notwithstanding the not guilty verdict and the absence of any other attempt to recover the monies at issue, the Commissioner submits:

(a)There are reasonable grounds to believe that Mr Hansen has been involved in significant criminal activity.

(b)The significant criminal activity relied on for the application is dishonestly using a document under s 228 of the Crimes Act 1961 and/or obtaining by deception under s 240 of the Crimes Act 1961, which in the circumstances of the alleged offending would both carry a maximum imprisonment of five years or more and therefore falls within the definition of significant criminal activity.2

(c)There are reasonable grounds to believe that:

(i)The property is tainted property pursuant to s 5 of the Act, and that is been wholly or in part acquired or derived from significant criminal activity; and/or

(ii)Mr Hansen has “unlawfully benefitted from significant criminal activity” as defined in s 7 of the Act; and

(iii)Mr Hansen has interest in the property.

[7]    It is not necessary for the purposes of deciding the without notice application to form a view as to whether the property that is subject to the application is tainted or whether Mr Hansen has otherwise unlawfully benefitted from significant criminal activity, notwithstanding the initial impression is that the application does seem to be attempting to use the legislation beyond what it was intended to do. This is because s 22 of the Act provides that orders can only be obtained without notice:

… if the Court is satisfied that there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given...

2      As defined in s 6 of the Criminal Proceeds (Recovery) Act 2009.

[8]    Given the draconian nature of this type of application, it is obviously important that the requirements of s 22(1) are observed.3 This is of particular importance given that neither the Commissioner nor the Official Assignee appears to have the resources to look after the assets sought to be restrained. The result is the Court receives many applications from the Commissioner to allow restrained assets to be sold to avoid equity in those assets being eroded by ongoing holding costs.

[9]    In sharp contrast to the quantity of evidence put forward in support of the Commissioner’s allegations in respect of the property, the evidence relied on to satisfy the Court that “there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given” is limited to a single paragraph in the affidavit of Raquel Wilson filed in support of the application. This states:

I consider it necessary to make this application for restraining orders without notice to prevent the respondents from dealing with the property subject to the application. The vehicles, by their nature, are readily disposable and may be moved or hidden with ease.

[10]   Counsel attempts to elaborate on this evidence, albeit in the absence of any discernible evidential foundation, by submitting:

The Property includes property that can be readily disposed of. Vehicles, being portable property, are particularly vulnerable and can be transported or hidden with ease. The Commissioner submits there is a risk that Mr Hansen could deplete the value of the Property if he was given notice of the Application without restraining and further orders first being in place.

The Commissioner further notes that the nature of the significant criminal activity relates to fraudulent activity involving public funds, over an extended period of time. Mr Hansen is evidently not someone who can be trusted when it comes to adhering to rules and proper process.

The Commissioner submits these matters render it appropriate for the Application to be initially determined on a without notice basis. As required by the Act, the Commissioner will act swiftly regarding the subsequent on notice application.

3      The Court of Appeal has discussed that without notice applications of this type “trench upon natural justice”, and likewise that, given the applicant is the state, the Court must be alive to the risk of “its jurisdiction ... being conscripted to the service of any arbitrary or unfair action by the state”. Rae v Commissioner of Police [2023] NZCA 4 at [47], citing Jennings v Crown Prosecution Service [2005] EWCA Civ 746, [2005] 4 All ER 391 at [56].

[11]   Together, neither the statement by Ms Wilson, nor the submissions of counsel, comes remotely close to satisfying me that there is any risk of the proposed restrained property being destroyed, disposed of, altered, or concealed. If the statements were sufficient, it would mean that all moveable property could appropriately be restrained without notice at any time.

[12]   Moreover, in this case, Mr Hansen is well aware of the allegations. He successfully defended the charge brought against him in the District Court and in the course of that prosecution was cross-examined regarding his acquisition of a number of the proposed restrained assets. There is no evidence that he has taken any steps whatsoever to hide or otherwise dispose of the assets at issue.

[13]   Given this position, it is clear that the Commissioner’s application cannot proceed on a without notice basis and the application is dismissed. Should the Commissioner wish to proceed further, it must proceed on-notice.

[14]No issue of costs arises.

Powell J