Commissioner of Police v Krishnan

[2023] NZHC 1207

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000269

[2023] NZHC 1207

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

YUVARAJ KRISHNAN

Respondent

KRISHNAN KUPPEN

Interested Party

Hearing:

On the papers

Counsel:

M Harborow and E Watt for the Applicant

S Cullen for the Respondent and Interested Party

Judgment:

23 May 2023

REDACTED JUDGMENT OF GORDON J

This judgment was delivered by me on 23 May 2023 at 2 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Meredith Connell, Auckland S Cullen, Barrister, Auckland

COMMISSIONER OF POLICE v KRISHNAN [2023] NZHC 1207 [23 May 2023]

[1]    In this proceeding the Commissioner of Police (Commissioner) seeks forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) in relation to a property which is currently restrained under the Act.

[2]    The Commissioner, the respondent Yuvaraj Krishnan, and the interested party, Krishnan Kuppen, now seek the Court’s approval under s 95 of the Act, of an agreement reached between them.

Background

[3]    The background to the proceeding is conveniently summarised in the joint memorandum of counsel for the three parties dated 17 May 2023. This section of my judgment draws from that summary.

[4]    The proceeding commenced following a Police investigation into Mr Krishnan for forgery, use of forged documents, altering and using documents with intent to deceive, dishonestly using documents and perjury.

[5]    The events giving rise to those charges were that Mr Krishnan had produced various forged documents in support of his applications for jobs in the medical profession. He successfully obtained two jobs. One role was as a COVID-19 contact tracer and one was as a doctor, namely as a Clinical Research Fellow. Mr Krishnan saw patients and prescribed medications when he was not qualified to do so.

[6]    Mr Krishnan derived unlawful benefits by way of wages received from the Auckland District Health Board and Counties Manukau District Health Board as a result of using forged documents when applying for the roles referred to above. Those wages total approximately $135,183.

[7]    The Commissioner made an application on 10 February 2023 without notice for restraining orders in respect of a property at [redacted], registered to Mr Krishnan and Mr Krishnan’s father, Mr Kuppen (the Apartment). That application was granted on 15 February 2023. An on notice application was made on 17 February 2023 and was granted, without opposition, on 28 February 2023.

Proposed settlement

[8]The proposed settlement is on the following terms:

(a)assets forfeiture orders under s 50 of the Act be made by consent over a sum of $135,183.59 (the Settlement Sum), representing the amount of the unlawful benefits, in full;

(b)the Settlement Sum is to be paid by way of a scheme of payments, made up of four payments over four months from the date of approval of the settlement by the Court;

(c)the restraining order over the Apartment will be varied to permit further borrowing against it for the exclusive purpose of enabling Mr Krishnan to raise the Settlement Sum;

(d)upon the Official Assignee providing written confirmation that the Settlement Sum has been paid in full, the restraining order over the Apartment is to be lifted and is to be removed from the record of title of the Apartment (in the event the Settlement Sum is not paid within time, the Official Assignee will sell the Apartment to obtain it);

(e)Mr Krishnan is to abandon all claims he may have, under the Act or otherwise, to any of the property to be forfeited or to any of the other restrained property;

(f)the settlement is in full and final settlement of the proceedings brought by the Commissioner against Mr Krishnan under the Act; and

(g)costs will lie where they fall.

Court approval – statutory provision

[9]Section 95 of the Act governs settlements and 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.

Discussion

[10]   I am satisfied that the proposed settlement recognises the primary purpose of the Act, which is to provide for forfeiture of property derived directly or indirectly from significant criminal activity, or property representing the value of a person’s unlawfully derived income.1 I am also satisfied that the settlement is consistent with the overall interests of justice. The following reasons (which are acknowledged by counsel) support my decision on the two criteria in s 95(3):

(a)the Commissioner considers he has a strong case to demonstrate that Mr Krishnan has unlawfully benefited from his criminal activity, particularly as Mr Krishnan pleaded guilty to, and has now been sentenced for, the criminal charges in the parallel criminal case;

(b)the settlement ensures Mr Krishnan’s unlawful benefit is forfeited, in full;

(c)for his part, Mr Krishnan acknowledges he has derived unlawful benefits from his criminal activity, in the form of wages paid to him following his fraudulent applications for the roles referred to above. He

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

accepts he has been advised about the legal impact of the Act, particularly with regard to the presumption in favour of the Commissioner’s stated unlawful benefit quantum;

(d)the settlement appropriately  recognises  the  innocent  interests  of  Mr Kuppen as Mr Krishnan is first given the opportunity to raise the Settlement Sum before any sale of the Apartment;

(e)an agreed settlement allows the parties to have certainty and control as to the outcome;

(f)there will be a saving of time and cost if the matter can be resolved by consent without the need for further hearings.

Result

[11]   Given that I am satisfied of the two matters in s 95(3) of the Act, I must approve the settlement. I make the following orders.

Assets forfeiture orders under s 50(1) of the Act

[12]   The sum of $135,183.59 (Settlement Sum) vests in the Crown absolutely and is in the Official Assignee’s custody and control.

Additional orders necessary and convenient for giving effect to the assets forfeiture order made in respect of the Settlement Sum under s 59 of the Act

[13](a) the Settlement Sum must be paid to the Official Assignee by way of a scheme of payments, made up of four equal payments over four months from the date of these orders, and the last payment must be made before 5 pm on the date that is four months from the date of these orders;

(b)the restraining order over [redacted] (the Apartment) is varied to permit borrowing against it for the exclusive purpose of enabling Mr Krishnan to raise the Settlement Sum;

(c)upon the Official Assignee providing written confirmation to the parties that the Settlement Sum has been paid in full, the restraining order over the Apartment is lifted and the Official Assignee must then arrange for the restraining order to be removed from the record of title of the Apartment;

(d)in the event the Settlement Sum is not paid in full before 5 pm on the date that is four months from the date of these orders, the Official Assignee must, as soon as is reasonably practicable, sell the Apartment at its fair market value and deal with the proceeds of sale in the following way:

(i)first, deduct the Official Assignee’s actual costs in effecting the sale (including, if applicable, any decontamination costs);

(ii)second, repay any borrowings secured against the property;

(iii)third, forfeit up to $135,183.59 to ensure the Settlement Sum is forfeited pursuant to the assets forfeiture order in paragraph [12] above;

(iv)finally, return the balance to Mr Krishnan and Mr Kuppen;

(e)in the event the Official Assignee sells the Apartment pursuant to paragraph [13](d) above, the restraining order made by Woolford J on 28 February 2023 is extended for one year from 28 February 2024 so as to allow the Official Assignee to complete the sale.

Costs

[14]   Costs lie where they fall in relation to all matters between the Commissioner, Mr Krishnan and Mr Kuppen.

[15]In addition I record the following agreed terms of settlement:

(a)Mr Krishnan abandons all claims he may have, under the Act or otherwise, to any of the property to be forfeited or any of the other restrained property; and

(b)the settlement is in full and final settlement of the proceedings brought by the Commissioner against Mr Krishnan under the Act.

[16]   For the sake of completeness I confirm that once the orders are sealed the proceeding will be at an end.

Gordon J