Commissioner of Police v Jones

[2022] NZHC 79

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-471

[2022] NZHC 79

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to ss 43, 44 and 55 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ELIZABETH ANNE JONES

First Respondent

AND

DANIEL GARY FRENCH

Second Respondent

AND

AMY-LEIGH WARD

Third Respondent

AND

SHARYN LOUISE WARD

Third Interested Party

AND

ANTHONY DAVID WARD

Fourth Interested Party

Counsel:

K South for Applicant

C Mo for Third Respondent and Third and Fourth Interested Parties

Judgment:

3 February 2022

(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 3 February 2022 at 4.15 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date

COMMISSIONER OF POLICE v JONES [2022] NZHC 79 [3 February 2022]

[1]                  The Court has previously made a restraining order under the Criminal Proceeds (Recovery) Act 2009 affecting property of the third respondent, Amy-Leigh Ward.1

[2]                  The Commissioner of Police and Ms Ward have since entered into a settlement as to a sum of money to be forfeited to the Crown.

[3]                  The Commissioner and Ms Ward request that the Court, under s 95 of the Act, approve the settlement.

The jurisdiction

[4]Section 95 of the Act provides:

95High Court must approve settlement between Commissioner and other party

(1)The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)A settlement does not bind the parties unless the High Court approves it.

(3)The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)the purposes of this Act; and

(b)the overall interests of justice.

[5]                  It is recognised that the Court may consider approval of a settlement reached following the making of a restraining order without the need for a formal forfeiture application — a joint memorandum from the parties (or counsel) sufficiently engages s 95 of the Act.2

Discussion

[6]                  Counsel have by their (revised) memorandum referred to the affidavits filed by the Commissioner in support of the application for restraining orders. They have

1      Commissioner of Police v Jones [2020] NZHC 2628.

2      Commissioner of Police v Saunders [2012] NZHC 3479 at [2].

identified the background circumstances by which the Commissioner assessed, for the purposes of s 53 of the Act, the unlawful benefit derived by Ms Ward from significant criminal activity. They record that Ms Ward and the third and fourth interested parties do not agree with every aspect of the allegations made by the Commissioner but recognise the benefit to all parties in settling matters upon the proposed basis.

[7]                  I am satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice.

Order

[8]I approve the following settlement, namely:

(a)The value of the benefit determined in accordance with s 53 Criminal Proceeds (Recovery) Act 2009 is, as the case requires:

(i)in relation to the third respondent $275,000; and

(ii)the maximum recoverable amount in relation to the third respondent is $275,000;

(b)The third respondent and the third and fourth interested parties shall within 15 working days from the date of this order pay the sum of

$275,000 into the bank account of the Official Assignee;

(c)The Commissioner of Police, upon receiving confirmation of the receipt of the sum of $275,000 in clear funds by the Official Assignee, shall forthwith file a memorandum notifying the Court that the terms of settlement, as hereby approved, have been met and confirming that the restraining order in relation to the following property shall be rescinded by the Court;

(i)all interests in their residential property at 62 Denise Crescent, Hornby, Christchurch described in Certificate of Title CB13F/65 registered in the name of Amy-Leigh Ward, Anthony

David Ward and Sharyn Louise Ward (excluding any interest of Westpac New Zealand Limited, as mortgagee).

(d)there is no order as to costs and disbursements; and

(e)upon the filing of the memorandum referred to at [8](c) above, the file is to be referred to the Duty Judge for the rescinding of the identified order (without further application or submission).

Osborne J

Solicitors:

Raymond Donnelly & Co, Christchurch Saunders & Co, Christchurch