Commissioner of Police v Marshall

[2021] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-377

[2021] NZHC 2316

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

EVELYN DAWN MARSHALL

First Respondent

DAVID SIMON MARSHALL
Second Respondent

ZACH MARSHALL

Third Respondent

Hearing:

On the papers

Appearances:

N Walker / J Pridgeon for Applicant N T C Batts for First Respondent

M J Taylor-Cyphers for Second Respondent S Wimsett for Third Respondent

Judgment:

6 September 2021

JUDGMENT OF LANG J

[on application for leave to appeal to Court of Appeal]

This judgment was delivered by me on 6 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COMMISSIONER OF POLICE v MARSHALL [2021] NZHC 2316 [6 September 2021]

[1]    In this proceeding the Commissioner seeks asset and profit forfeiture orders against the respondents under the Criminal Procedure (Recovery) Act 2009 (CPRA). At trial the Commissioner seeks to rely in part on statements made during examinations of the three respondents undertaken after the Commissioner had obtained orders under s 107 of the CPRA.

[2]    The respondents acknowledge they made self-incriminating statements during the examinations. They contend these are rendered inadmissible by both the Evidence Act 2006 and the CPRA. They therefore sought an order requiring the Commissioner to provide redacted transcripts of the interviews that excluded their incriminating statements.

[3]    In a judgment delivered on 19 July 2021 I dismissed the respondents’ application.1 The respondents now seek leave to appeal to the Court of Appeal against this decision.

Relevant principles

[4]    Leave is required under s 56(3) of the Senior Courts Act 2016 because the proposed appeal relates to an interlocutory decision. In Ngai Te Hapu Inc v Bay of Plenty Regional Council the Court of Appeal confirmed that considerations similar to the principles applicable to applications under the former 24G of the Judicature Act 1908 remain relevant to applications for leave under s 56(3).2 The Court observed:3

We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

[5]    The principles governing interlocutory appeals were also very recently reviewed by the Court of Appeal in Tomar v Tomar.4 In that case the Court approved the approach taken by Fitzgerald in Finewood Upholstery Ltd v Vaughan.5 This recognises that the requirement for leave to appeal serves as a filtering mechanism to

1      Commissioner of Police v Marshall [2021] NZHC 1819.

2      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

3 At [17].

4      Timar v Tomar [2021] NZCA 419.

5      At [6], citing Finewood Holstery Ltd v Vaughan [2017] NZHC 1679 at [13].

ensure that unmeritorious appeals against interlocutory orders do not necessarily delay the proceedings in which the orders were made. The Court of Appeal acknowledged that the following considerations have been recognised as relevant on an application for leave to appeal:6

(a)A high threshold exists.

(b)The applicant must identify an arguable error of law or fact.

(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d)The circumstances must warrant incurring further delay.

(e)The ultimate question is whether the interests of justice are served by granting leave.

[6]    In Greendrake v District Court of New Zealand the Court of Appeal also applied the principles referred to in Finewood.7

The issue

[7]    The issue for which the respondents seek leave to appeal arises out of the wording used in ss 164 and 165 of the CPRA. They provide as follows:

164Admissibility of evidence

(1)        No evidence that is lawfully obtained under section 105 or 107 is inadmissible by reason only of the fact that it was so obtained.

(2)This section is subject to section 165.

165Admissibility of self-incriminating statements

(1)A self-incriminating statement made orally by a person (whether or not the statement is recorded in writing) in the course of answering any question, or supplying any information, or producing any

6 At [6].

7      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

document, or providing any explanation, as required under section 105 or 107, may be used in evidence against that person only in a prosecution for an offence under section 108 of the Crimes Act 1961 (which relates to perjury) or under this Act in relation to any evidence given by the person that is inconsistent with the statement.

(2)Despite subsection (1), any statement made in relation to—

(a)a refusal or failure to answer any question, supply any information, produce any document, provide any explanation, or comply with any other requirement may be used in evidence against that person in any prosecution for any offence under section 152 arising from that refusal or failure:

(b)the answering of any question in a way that is false or misleading in a material particular, or the supply of any information, or the production of any document, or the providing of any explanation that is false or misleading in a material particular, may be used in evidence against that person in any prosecution for any offence under section 152 arising from that act.

[8]    In the present case there is no dispute that the Commissioner examined the respondents lawfully using the orders he obtained under s 107 of the CPRA. For that reason, as I noted in my judgment, s 164(1) appears to provide a complete answer to the respondents’ argument.8 However, the respondents rely on the fact that s 164(2) makes s 164(1) expressly subject to s 165. The respondents contend that s 165 prescribes the only circumstances in which the Commissioner may use self- incriminating statements obtained in examinations under ss 106 and 107 of the CPRA. These do not include forfeiture proceedings under the CPRA.

Decision

[9]    Several factors favour the granting of leave. First, I acknowledged in my judgment that the wording of s 165(1), and in particular the use of the word “only”, meant that the respondent’s submission is capable of argument.9 The wording of the section makes it arguable that evidence obtained under ss 105 and 107 may be used in the types of prosecutions specified in s 165 but for no other purpose whatsoever, including civil proceedings under the CPRA.

8      Commissioner of Police v Marshal, above n 1, at [11].

9 At [13].

[10]   Secondly, I accept that the issue is likely to have importance for proceedings other than the present. It is also novel, with counsel being unable to find any other case in which it has been raised. Thirdly, the issue is narrow and ought to be capable of argument before the Court of Appeal without undue delay.

[11]   However, two factors suggest leave should not be granted. First, I found that the interpretation for which the respondents argued would result in an outcome that was wholly inconsistent with the purpose of the CPRA.10 In effect it would deny the Commissioner the ability to use information obtained in examinations conducted lawfully under ss 107 and 107 in subsequent forfeiture proceedings. This underpinned my conclusion that the restrictions contained in s 165 applied only to criminal prosecutions. I held that Parliament could not have intended the restriction in s 165 to apply also to civil proceedings involving applications for forfeiture orders under the CPRA.11 I consider this factor weakens the argument for the respondents considerably.

[12]   Secondly, the respondents appear to acknowledge that the application for forfeiture orders does not rely wholly on the statements made by the respondents during their examinations. The Commissioner can point to other evidence, including the fact that the respondents have now been convicted and sentenced on charges relating to drug-related activity.

[13]   Had the challenged statements been determinative of the present proceeding I would have granted leave to appeal. It seems to me, however, that it is better at this stage for the proceeding to be determined at trial. If the respondents are not satisfied with the outcome they can exercise their general right of appeal against the substantive judgment, including reliance by the Commissioner on the statements made during the examinations. If the Court of Appeal concludes the statements ought to have been excluded it will then be able to assess whether the Commissioner nevertheless adduced sufficient other evidence to obtain the forfeiture orders he seeks. Any other approach runs the risk that the Court of Appeal will be required to consider two appeals rather than one.

10 At [13].

11 At [14].

Result

[14]The application for leave to appeal is dismissed.

Lang J