Commissioner of Police v Matthews

[2020] NZHC 3534

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-71

[2020] NZHC 3534

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under sections 22, 24, 25,

35, 58 and 80

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

CRAIG WAYNE MATTHEWS

Respondent

BRITTANY NATALIE ROSLYN MORGAN

First Interested Party

TINOROA AARON MATHEW HORUA- TIMOTI

Second Interested Party

MICHAEL TAMARAPA
Third Interested Party

WAYNE SELWYN DESMOND MATTHEWS

Fourth Interested Party

On the papers:
Counsel:	G J C Carter for Applicant
Judgment:	24 December 2020

JUDGMENT OF CHURCHMAN J

THE COMMISSIONER OF POLICE v CRAIG WAYNE MATTHEWS [2020] NZHC 3534 [24 December 2020]

[1]                 By application dated 23 December 2020, the applicant has, on a without notice basis, applied for restraining and further orders (prior to civil forfeiture orders) under ss22, 24, 25, 35, 58 and 80 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]The orders are sought on the grounds that:

(a)there are reasonable grounds to believe that the respondent has unlawfully benefitted from significant criminal activity and that he has an interest in the property sought to be restrained;

(b)there are reasonable grounds to believe that the property is tainted property;

(c)it is appropriate to make the further orders to ensure that:

(i)the value of the property is preserved and not dissipated or adversely affected before civil forfeiture can be determined; and

(ii)members of the Police and Official Assignee’s office can enter the Property and locate and seize the Property to ensure that restraining orders can be effectively enforced.

[3]The application is made on a without notice basis on the grounds that:

(a)the Act expressly permits such an application to be made without notice;

(b)the respondent has unlawfully benefitted from significant criminal activity;

(c)there are reasonable grounds to believe the property is tainted;

(d)there is a risk that the proposed restrained property might be destroyed, deposed of, altered or concealed if notice were given to any or all of the

persons who, to the applicant’s knowledge, had an interest in the proposed restrained property.

[4]                 In addition to the application, the applicant filed a memorandum of counsel setting out the basis for the various applications and for urgency along with an affidavit of Detective Sergeant Nicola Jane Holroyd which set out in detail the relevant factual background and the grounds upon which the applications were sought.

[5]The applicant also filed a draft order to be sealed.

Analysis

[6]                 Having reviewed all of the documentation filed by the applicant, I am satisfied that it is appropriate for this application to have been made on a without notice basis for the reasons set out in the application.

[7]                 I am satisfied that the information placed before the Court provides an evidential basis for the drawing of an inference that the respondent has unlawfully benefitted from significant criminal activity; that the property sought to be restrained represents the proceeds of such activity, and that the respondent has effective control over the property.

[8]                 I am further satisfied that the “other orders” sought by the Commissioner being an order allowing the Police and Official Assignee to go onto property/vehicles and take custody and control of those assets, together with orders as to how the restrained property is to be dealt with by the Commissioner and the Official Assignee are necessary.

Restraining and effective control orders

[9]                 The Court makes restraining orders under s 24 and/or s 25 of the Act as follows:

(a)The following property (collectively, the Property) shall not be disposed of, or dealt with, by any person other than as provided for in this order and is to be under the Official Assignee’s control and custody:

(i)an orange 2014 Ford Ranger TD Wildtrack Utility motor vehicle including ignition keys, registration plate number HSB873, registered to Brittany Natalie Roslyn MORGAN, and under the effective control of the respondent (the Ranger);

(ii)a red 2011 Holden Commodore sports wagon, station wagon motor vehicle including ignition keys, registration plate number FTK286, registered in the name of Tinoroa Aaron Mathew HORUA-TIMOTI, and under the effective control of the respondent (the Holden);

(iii)a black 2008 Holden Commodore club sport motor vehicle including ignition keys, registration plate number HGG482, registered in the name of Michael William TAMARAPA, and under the effective control of the respondent (the Holden Clubsport);

(iv)a black 2008 Harley Davidson Night Train road bike including ignition keys, registration plate number B4TUF, registered in the name of Wayne Selwyn Desmond MATTHEWS, and under the effective control of the respondent (the Harley Davidson);

(v)all funds held in an ANZ bank account in the name of the respondent Mr C W Matthews, which had a balance of

$63,424.60 on 20 December 2020.

[10]Effective control orders under s 58 of the Act are made as follows:

(a)The following property is, for the purposes of this application to be treated as though the respondent had an interest in it:

(i)the Ranger;

(ii)the Holden;

(iii)the Holden Clubsport; and

(iv)the Harley Davidson.

[11]              Further orders in relation to the Property under ss 33, 34 and 35(e) and 102 of the Act are made as follows:

(a)Members of the Police and of the Official Assignee’s office may go onto and into property and vehicles to take custody and control of the aforementioned Property (including keys) described in [9] hereof if there are reasonable grounds to believe the property (including keys) will be located on or in that property.

[12]              Further orders to preserve the value of the Property under ss 33, 34 and 35 of the Act are made as follows:

(a)The Property to which this order applies is not to be disposed of, or dealt with, other than as is provided for in the restraining order.

[13]              A further order to regulate the manner in which the Official Assignee may exercise his or her powers under ss 35(e)(i)-(v)(i) and 80 of the Act is made as follows:

(a)The Property to which this order applies is to be in the Official Assignee’s custody and control.

[14]The draft sealed order filed together with the application is approved.

Churchman J

Solicitors:
BV&A, The Practice, Palmerston North for Applicant