Commissioner of Police v Malcolm

[2013] NZHC 132

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV 2010-483-27 [2013] NZHC 132

THE COMMISSIONER OF POLICE

Applicant

v

WAYNE PUHI MALCOLM

Respondent

Hearing:         4 February 2013 (AVL Conference) Counsel:   L C Rowe for Applicant

Respondent in Person

Judgment:      5 February 2013

JUDGMENT OF RONALD YOUNG J

[1]      The Commissioner of Police seeks to renew a previous restraining order made  on  25 May 2010  and  subsequently  renewed  on  a  number  of  occasions restraining Mr Malcolm’s use of two bank accounts.

[2]      Mr Malcolm appeared for himself and opposed the order sought but also advised he wished to obtain a lawyer.  Mr Malcolm was, however, able to identify

his grounds of his opposition to the application.

THE COMMISSIONER OF POLICE V WAYNE PUHI MALCOLM HC WANG CIV 2010-483-27 [5 February

2013]

[3]      The original restraining order was made on 25 May 2010 for twelve months. Extensions  were  granted  in  May 2011,  November 2011  and  May 2012.    Those extensions were because of a significant delay in Mr Malcolm’s sentencing.  It was accepted by Mr Malcolm’s then counsel and the Commissioner that it would not be appropriate to attempt to resolve whether the money, the subject of the restraining orders, should be forfeited until after sentencing.

[4]      Sentencing took place on 15 October 2012 but is the subject of an appeal by the  Crown.    The  prosecutor  now  accepts  there  has  been  some  delay  in  the preparation of the application for a profit forfeiture order but says the application will now be attended to and seeks only one further and final extension of the order until 25 May 2013.

[5]      Mr Malcolm complains that the restraining order has now been in place for

two and a half years’ and it will be three years if the current application is granted.

[6]      I am not prepared to extend the restraining order for a further six months. The Police now need to move quickly.  The matter has been significantly delayed.  I am prepared to extend for one final time, and I stress it must be final, the current restraining order until 31 March 2013.  This should be ample time for the Police to make an application for a profit forfeiture order.  If they have then done so, a further extension may be necessary until a merits hearing can be held.

[7]      Should Mr Malcolm obtain counsel then I would be prepared to hear any further  challenge,  based  on  new  grounds,  to  the  extension  of  the  orders  to

31 March 2013.

Ronald Young J

Solicitors:

L C Rowe, Crown Solicitor, Armstrong Barton, Wanganui, email:  [email protected]

W P Malcolm, Wanganui