Commissioner of Police v Marshall
[2021] NZHC 1819
•19 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-377
[2021] NZHC 1819
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
EVLYN DAWN MARSHALL
First Respondent
DAVID SIMON MARSHALL
Second RespondentZACH MARSHALL
Third Respondent
Hearing: On the papers Appearances:
N Walker / J Pridgeon for Applicant N Batts for First Respondent
M J Taylor-Cyphers for Second Respondent S Wimsett for Third Respondent
Judgment:
19 July 2021
JUDGMENT OF LANG J
[on admissibility of evidence]
This judgment was delivered by me on 19 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Kayes Fletcher Walker, Manukau
COMMISSIONER OF POLICE v MARSHALL [2021] NZHC 1819 [19 July 2021]
[1] The Commissioner of Police considers the respondents in this proceeding have derived substantial financial benefits from significant criminal activity in the form of dealing in drugs and tax evasion. In this proceeding the Commissioner seeks asset and profit forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (CPRA).
[2] The Commissioner obtained orders under s 107 of the CPRA requiring all three respondents to be examined regarding issues the Commissioner believed to be relevant to the proceeding. Specialist Investigators attached to the Auckland Asset Recovery Unit of the Financial Crime Group subsequently examined the respondents separately at the Pukekohe and Manukau Police Stations on 8, 13 and 20 July 2020.
[3] The Commissioner has now filed an affidavit by Mr Marius Germishuyzen, one of the Specialist Investigators who interviewed the respondents. This annexes transcripts of the examinations as an exhibit. The respondents say that these contain incriminating statements that are excluded from admission under both the Evidence Act 2006 and the CPRA. They therefore seek an order requiring the Commissioner to provide a redacted transcript that excludes the incriminating statements.
The statutory provisions governing admissibility of evidence
[4] The admissibility of evidence is governed by the Evidence Act 2006. The primary test for admissibility is that of relevance. All relevant evidence will be admissible in a proceeding unless it is inadmissible or excluded under either the Evidence Act or any other Act.1 Evidence will be relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.2
[5] There is no dispute in the present case that the statements made by the respondents during their examinations are relevant to the issues the Court will be required to decide in determining the Commissioner’s application for forfeiture orders. The issue is whether the statements are rendered inadmissible by the Evidence Act and/or the CPRA. The respondents say they were required to make self-incriminatory statements under compulsion because of the examination orders the Commissioner
1 Evidence Act 2006, s 7(1).
2 Section 7(3).
obtained under s 107 of the CPRA. They say this means the statements are excluded from admission under both the Evidence Act and the CPRA.
[6] Section 60 of the Evidence Act 2006 effectively codifies the common law privilege against self-incrimination. It provides:
60 Privilege against self-incrimination
(1)This section applies if—
(a)a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a Police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b)the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2)The person—
(a)has a privilege in respect of the information and cannot be required to provide it; and
(b)cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
(3)Subsection (2) has effect—
(a)unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and
(b)to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.
…
(5) This section is subject to section 63.
[7]Section 63 of the Evidence Act provides:
63Replacement of privilege with respect to disclosure requirements in civil proceedings
(1)This section applies to a person who is required by an order of the court made for the purposes of a civil proceeding—
(a)to disclose information; or
(b)to permit premises to be searched; or
(c)to permit documents or things to be inspected, recorded, copied, or removed; or
(d)to secure or produce documents or things.
(2)The person does not have the privilege provided for by section 60 and must comply with the terms of the order.
(3)No evidence of any information that has directly or indirectly been obtained as a result of the persons compliance with the order may be used against the person in any criminal proceeding, except in a criminal proceeding that concerns the falsity of the information.
Section 107 of the CPRA relevantly provides as follows:
107 Power to require attendance before Commissioner, production of documents, etc
(1)If an application is made under section 106, the Judge may, if satisfied that the Commissioner has reasonable grounds to apply for the examination order, make an order that the person do 1 or more of the things specified in subsection (3) at the time and place specified in the order.
(2)An order under subsection (1) must contain the following particulars:
(a)the provision under which the order is made:
(b)a description of the information that is sought:
(c)a description of the document or documents production of which is sought:
(d)a description of the property or other thing or type of property or other thing to which the document or documents are believed to relate.
(3)The things referred to in subsection (1) are—
(a)to attend before the Commissioner:
(b)to answer questions with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation or to any proceedings under this Act:
(c)to supply any information specified in the [order] with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation or to any proceedings under this Act:
(d)to produce for inspection any documents that are specified in the [order] and that the Commissioner has reason to believe are in the persons possession or control and may be relevant to the investigation or to any proceedings under this Act.
…
(7) Any person who is required to attend before the Commissioner under this section must, before being required to comply with any requirements imposed under this section, be given a reasonable opportunity to arrange for a lawyer to accompany him or her.
[9] Section 163 of the CPRA removes the ability of a person being examined under s 107 from declining to answer questions on the grounds that the answers may be incriminatory:
163 Privilege against self-incrimination no excuse
No person is excused from answering any question, supplying any information, producing any document, or providing any explanation under section 105 or 107 on the ground that to do so would or might incriminate or tend to incriminate that person.
[10] Sections 164 and 165 then govern the admissibility of statements and other evidence obtained using an examination conducted in accordance with an order made under s 107. 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 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.
Decision
[11] The sole ground on which the respondents contend the incriminating statements are inadmissible is that they were obtained during examinations undertaken pursuant to orders made under s 107. There is no dispute that those orders were lawfully made. Section 164(1) would therefore appear to provide a complete answer to the respondents’ argument. However, the respondents rely on the fact that s 164(2) makes s 164(1) expressly subject to s 165 of the CPRA. They contend s 165 prescribes the only circumstances in which the Commissioner may use self-incriminating statements obtained in examinations under ss 106 and 107. These do not include forfeiture proceedings under the CPRA.
[12] The wording used in s 165(1) makes it clear that it applies only to criminal prosecutions. It provides that information obtained using the procedure under ss 106 and 107 may only be used in a prosecution for an offence under s 108 of the Crimes Act 1961 (perjury) or an offence under the CPRA relating to evidence given by the person that is inconsistent with information provided earlier during an examination. Section 165(2) then extends the ability to use the information in prosecutions for offences under s 152 of the CPRA. These create offences for failing to comply with an order under s 107 and providing false or misleading statements or documents during a s 107 examination.
[13] The use of the word “only” in s 165(1) leaves open the argument relied upon by the respondents in the present application. It can be argued that evidence obtained under ss 105 and 107 may be used in the types of prosecution specified in s 165 but
for no other purpose whatsoever. This would preclude it being used in civil proceedings under the Act. However, the primary purpose of the CPRA is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity or that represents the value of a person’s unlawfully derived income.3 The ability of the Commissioner to obtain an examination order under s 107 is consistent with that purpose, as is the qualified removal of the right to claim privilege against self-incrimination. It would produce an absurd outcome, and one that is wholly inconsistent with the purpose of the CPRA, if the Commissioner could obtain relevant information using an examination under s 107 and then be prevented from using it to obtain forfeiture orders by virtue of s 165.
[14]That unsatisfactory outcome can be avoided by restricting the application of s
165 to the use the Commissioner may make of information obtained in s 107 examinations in criminal prosecutions. Parliament cannot have intended it to apply also to civil proceedings involving applications for forfeiture orders under the CPRA.4 I consider s 165 mirrors the approach taken in ss 60(2)-(3) and s 63 of the Evidence Act. Those sections do not prevent self-incriminatory evidence from being used in civil proceedings but significantly restrict the use that can be made of them in criminal proceedings.
[15] There is an issue in any event as to whether the statements made by the respondents during their examinations can properly be regarded as self-incriminatory. The privilege the respondents assert applies only to self-incriminatory statements. Their argument is based on the premise that, because they acknowledged involvement in drug-related activity during the examinations, the statements are therefore self- incriminatory. That premise needs to be examined in greater detail.
[16] There is no definition of the term “incriminate” or “self-incriminate” in the CPRA. However, s 4 of the Evidence Act defines those terms as follows:
Incriminate means to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
3 Criminal Proceeds (Recovery) Act 2009, s 391.
4 Section 10 of the CPRA provides that applications relating to asset forfeiture orders and profit forfeiture orders are civil proceedings.
self-incrimination means the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence
I consider these to be appropriate definitions for the purposes of the CPRA as well.
[17] The issue then becomes whether the information the respondents provided during their examinations amounts to the provision of information that is reasonably likely to lead to, or increase the likelihood of, them being prosecuted for a criminal offence. In Singh v R the Supreme Court held that the use of the word “likely” in s 60 of the Evidence Act showed that Parliament intended to confine the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”.5 I see no reason to take a different approach when interpreting the CPRA.
[18] I consider this question must be answered in the negative. The respondents have already been prosecuted and convicted under the offence provisions of the Misuse of Drugs Act 1975 for drug-related activities. Any further prosecution based on admissions they made during the examinations would relate to the same type of activity and would be laid under the same Act. Section 165 of the CPRA prescribes a narrow range of offences for which statements made in an examination conducted under s 107 may be used as evidence. These do not include charges laid under the Misuse of Drugs Act 1975. As a result, the statements made during the examinations cannot be used as evidence in support of any further charges that might laid under that Act. This means the statements do not constitute information that is reasonably likely to lead to, or increase the likelihood of, the respondents being prosecuted for a criminal offence. It follows that they are not self-incriminatory statements for the purposes of either the Evidence Act or the CPRA.
[19] Finally, Ms Taylor-Cyphers advances an argument on Mr Marshall Senior’s behalf that the statements made by the respondents have low probative value and this is outweighed by their unfairly prejudicial effect. She therefore submits the evidence should be excluded under s 8(2) of the Evidence Act. This submission places insufficient weight on the fact that the Commissioner will only be able to obtain civil
5 Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [31].
forfeiture orders if he can establish that the respondents derived benefits from significant criminal activity. The statements made by the respondents during the examinations about their involvement in drug-related activity is plainly relevant to that issue. The admission of the evidence will not unduly prolong the trial or have any unfairly prejudicial effect on the proceeding. This means there are no grounds to exclude the evidence under s 8(2).
[20] For these reasons I am satisfied that the evidence obtained during the examinations is admissible in support of the Commissioner’s application for forfeiture orders.
Result
[21]The application is dismissed.
Lang J
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