Commissioner of Police v O'Carroll

[2025] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-0492 [2025] NZHC 1634

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  COMMISSIONER OF POLICE

Applicant

AND  DAVID GERRARD O’CARROLL

Respondent

On the papers:          19 June 2025

Counsel:M R Harborow and N V Narayanan for applicant C S Fredric for respondent

Date of judgment:     19 June 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 19 June 2025 at 12.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

C S Fredric, Barrister, Auckland Meredith Connell, Auckland Tucker & Co, Auckland

COMMISSIONER OF POLICE v O’CARROLL [2025] NZHC 1634 [19 June 2025]

[1]                   As duty judge, I have the Commissioner’s now-unopposed 12 March 2024 application for restraining and other orders in respect of Mr O’Carroll’s specific holdings of cryptocurrency.

[2]                 The application is supported by 11 March 2024 affidavits of police officers essentially contending the cryptocurrency to be tainted property (as obtained from significant criminal activity), and Mr O’Carroll to have unlawfully benefited from significant criminal activity, being the importation of and/or dealing in class A drugs, including cocaine and methamphetamine.1

Law

[3]                 If I am satisfied I have reasonable grounds to believe the cryptocurrency to be tainted property, or Mr O’Carroll unlawfully benefited from significant criminal activity, I may make a restraining order in respect of all or part of his property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.2

Discussion

[4]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.3 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of five years or more, or offending obtaining property with a value exceeding $30,000.4

[5]                 I am satisfied, on the basis of the affidavits, I have reasonable grounds to believe  both  the  cryptocurrency  is  tainted  property  and,   by  its  possession,    Mr O’Carroll unlawfully benefited from significant criminal activity in drug offending. The latter previously has been established in decisions of this and the District Courts.5 Fundamentally, Mr O’Connor has no legitimate source of revenue as would permit his accumulation of the cryptocurrency.

1      Misuse of Drugs Act 1975, s 6(1)(a) and (c). Maximum penalty: life imprisonment.

2      Criminal Proceeds (Recovery) Act, s 25.

3      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

4      Criminal Proceeds (Recovery) Act, s 6(1).

5      For example, R v O’Carroll [2015] NZHC 2404.

[6]                 I see no reason not to exercise my residual discretion, precisely to preserve the cryptocurrency if to be forfeited to the Crown, to make the restraining order sought.

Result

[7]                 I order in terms of subpara 1(a) of the Commissioner’s 12 March 2024 application.

—Jagose J