Commissioner of Police v McLean

[2022] NZHC 968

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-19

[2022] NZHC 968

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to s 95 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DONALD JOHN McLEAN

First Respondent

AND

LISA MELANIE McLEAN

Second Respondent

AND

DONALD JOHN MCLEAN and LISA

MELANIE MCLEAN as Trustees of the MCLEAN-MCGOWAN FAMILY TRUST

Third Respondents

AND

AYDEN PAUL WATT

Fourth Respondent

AND

NICHOLAS EDWARD SUSZKO

Fifth Respondent

AND

SARAH JONES

Sixth Respondent

AND

JULIE-ANNE JONES

Interested Party

AND

WESTPAC BANK NZ LIMITED

Interested Party

AND

KIWIBANK LIMITED

Interested Party

Appearances:

R D Smith for Applicant

A L Pinnock for the First, Second and Third Respondents S A Saunderson-Warner for Fourth Respondent

COMMISSIONER OF POLICE v DONALD JOHN McLEAN [2022] NZHC 968 [9 May 2022]

C T Patterson for Fifth Respondent

N M Laws for Sixth Respondent

Judgment:

9 May 2022

(Determined on the papers)

JUDGMENT OF OSBORNE J

[1]                 The Court has previously made restraining orders under the Criminal Proceeds (Recovery) Act 2009 affecting the property of the respondents.

[2]                 The orders cover property owned by the fifth respondent, Nicholas Edward Suszko as follows:

(a)a residential property at 28 Nottingham Crescent, Calton Hill, Dunedin, described in record of title as Lot 9 and Lot 20 Block 11, DP2162 (the property); and

(b)a 2006 Dodge Charger Daytona, registration DODG06 (the vehicle).

[3]                 The Commissioner of Police and Mr Suszko have since entered into a settlement as to the property and the vehicle.

[4]                 The Commissioner and Mr Suszko request that the Court, under s 95 of the Act, approve the settlement.

The jurisdiction

[5]Section 95 of the Act 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.

[6]                 It is recognised that the Court may consider approval of a settlement reached following the making of a restraining order without the need for a formal forfeiture application — a joint memorandum from the parties (or counsel) sufficiently engages s 95 of the Act.1

Discussion

[7]                 Counsel have by their memorandum identified that the Commissioner’s claim that Mr Suszko unlawfully benefitted from significant criminal activity are disputed. They have further recorded a number of ways (including in relation to forensic accounting) in which Mr Suszko has cooperated with the Commissioner’s investigation and has provided relevant information. They record also that Mr Suszko’s health has been affected by the existence of this proceeding and a settlement will assist Mr Suszko in that regard.

[8]                 It is common ground as between the respondents and the Commissioner that no respondent other that Mr Suszko has an interest in the property or the vehicle.

[9]                 The proposed settlement involves the payment of $10,000 by Mr Suszko to the Commissioner.

[10]              I am satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice.

1      Commissioner of Police v Saunders [2021] NZHC 3479 at [2].

Order

[11]I approve the following settlement, namely:

(a)Nicholas Edward Suszko is to pay to the Commissioner of Police the settlement sum of $10,000 within two working days after the date of this judgment;

(b)immediately upon the Commissioner’s receipt of the settlement sum:

(i)the Commissioner is to file and serve a Memorandum confirming receipt of the settlement sum (such Memorandum to be served also on the Official Assignee);

(ii)the Commissioner, at his cost, is to have Mr Suszko’s 2006 Dodge Charger Daytona transported to Dunedin to enable Mr Suszko to collect it upon its arrival in Dunedin.

(c)upon the filing of the Commissioner’s Memorandum referred to at (b)(i) above, the restraining order made by this Court on 13 April 2021 will be, without further order of the Court, rescinded to the extent the order (at paragraph [4](d) and [4](i)) relates to the residential property of Mr Suszko at 28 Nottingham Crescent, Calton Hill, Dunedin, described in record of title as Lot 9 and Lot 20, Block 11, DP2162 and to Mr Suszko’s 2006 Dodge Charger Daytona, registration DODG06;

(d)upon the filing of the Commissioner’s Memorandum referred to at (b)(i) above, those parts of the Commissioner’s on notice application dated 17 May 2021 as relate to Mr Suszko’s said property and said vehicle will, without further direction, stand dismissed;

(e)as between the Commissioner and Mr Suszko, there is no order as to the costs and disbursements of this proceeding; and

(f)there is an order finally suppressing the amount of the settlement sum referred to in this judgment. For the avoidance of doubt, the suppression order affects neither the fact there has been a settlement nor the settlement arrangements (other than the amount of the settlement sum).

Osborne J

Solicitors:

Crown Solicitor, Dunedin Solomons, Dunedin

Counsel: A L Pinnock, Barrister, Dunedin S Saunderson-Warner, Barrister, Dunedin Lateral Lawyers Limited, Auckland Counsel: C T Patterson, Barrister)

Ross Dowling Marquet Griffin, Dunedin