Commissioner of Police v O'Carroll

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

CaseChat Overview and Summary

The case of Commissioner of Police v O’Carroll before the High Court of New Zealand involved an application by the Commissioner of Police seeking restraining and other orders against Mr. David Gerrard O’Carroll’s specific holdings of cryptocurrency. The Commissioner contended that the cryptocurrency was tainted property derived from significant criminal activity, specifically the importation and/or dealing in class A drugs such as cocaine and methamphetamine. The application was supported by affidavits from police officers who asserted that Mr. O’Carroll had unlawfully benefited from these criminal activities.

The legal issues before the court were whether the cryptocurrency was tainted property and if Mr. O’Carroll had unlawfully benefited from significant criminal activity. Under the Criminal Proceeds (Recovery) Act 2009, the court could make a restraining order if it was satisfied on reasonable grounds that the property was tainted or that the respondent had unlawfully benefited from significant criminal activity. The court had to determine if these conditions were met based on the affidavits provided.

The court found that it was satisfied on reasonable grounds that the cryptocurrency was indeed tainted property and that Mr. O’Carroll had unlawfully benefited from significant criminal activity in drug offending. This conclusion was based on the established findings from previous cases and the lack of a legitimate source of revenue that could explain the accumulation of the cryptocurrency. Therefore, the court exercised its discretion to make the restraining order as sought by the Commissioner, ensuring the cryptocurrency would be preserved if ultimately to be forfeited to the Crown.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established