Commissioner of Police v Read

[2015] NZHC 729

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-001070 [2015] NZHC 729

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

GARY JOHN READ First Respondent

PHILLIPA KAREN WILSON Fourth Respondent

Hearing:	(On the papers)
Counsel:	Richard Jenson for the Applicant Bill Nabney for the First Respondent Andrew Speed for the Fourth Respondent
Judgment:	16 April 2015

JUDGMENT OF MOORE J

This judgment was delivered by me on 16 April 2015 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

COMMISSIONER OF POLICE v READ & ANOR [2015] NZHC 729 [16 April 2015]

Introduction

[1]      The parties seek this Court’s approval under s 95 of the Criminal Proceeds

(Recovery) Act 2009 (“the Act”) to approve a settlement.

[2]      The  background  is  that  on  22  May  2013  the  Commissioner  filed  an originating application seeking orders for the forfeiture of a number of items, including a painting by Ian Scott, entitled, “One Tree Hill” (“the Painting”).

[3]      On 31 October 2013 the fourth respondent, Ms Wilson, filed a notice of opposition to the application.  This specifically referred to the Painting and her claim that she was a joint owner with her former partner, the first respondent, Gary John Read.

Settlement arrangement

[4]      Ms Wilson and the Commissioner of Police have now reached a settlement in relation to the Painting.  The settlement proposes Ms Wilson is granted relief from forfeiture on the basis that:

(a)       she pays $500 to the Crown by 1 April 2016; and

(b)      the arrangement referred to above is in full and final settlement of

Ms Wilson’s claim in her own capacity in relation to the Painting.

Section 95 of the Act

[5]      Under  s  95  of  the  Act  any  settlement  agreement  reached  between  the

Commissioner and another party is required to be approved by this Court.

[6]      This  Court  must  approve  settlement  if  it  is  satisfied  the  settlement  is consistent with:

(a)       the purposes of the Act; and

(b)      the overall interests of justice.

[7]      As this Court has previously observed, Parliament has entrusted the Court with a supervisory jurisdiction to ensure that settlements are consistent with the parliamentary  intention.1     One  of  the  primary  purposes  of  the  Act  is  the establishment of a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity.2

[8]      The parties submit that the settlement arrived at between them is “consistent

with the purposes of the Act and the overall interests of justice”.

[9]      In particular, the parties submit that the settlement arrangement is consistent with the purposes of the Act in that:

(a)      it provides for the loss of property by the first respondent, Mr Read, which represents part of the value of the first respondent’s unlawfully derived income (s 3(1)(b) of the Act);

(b)it  diminishes  the  profit  obtained  by the  first  respondent  from  the criminal activity (s 3 (2)(a) of the Act); and

(c)      the loss of the property to the first respondent has the potential to deter significant criminal activity in the future (s 3(2)(b) of the Act).

[10]     I am satisfied that in all the circumstances this settlement is consistent with the  purposes  and  scheme  of  the Act  and  is  in  the  overall  interests  of  justice. Furthermore, there will be a saving of time and cost if the matter is resolved by consent without the need for a hearing in relation to this aspect of the current proceedings.

[11]     I thus approve the settlement in terms of s 95 of the Act.

1      Commissioner of Police v Know-All Group Limited & Anor, High Court Auckland, CIV-2010-

404-403, 7 November 2011, per Brewer J at [11].

2      Criminal Proceeds (Recovery) Act 2009, s 3(1)(a).

[12]     Accordingly, I make the following orders:

(a)      the Painting is not to be included in any civil forfeiture under this proceeding, provided that Ms Wilson pays $500 into a bank account nominated by the Official Assignee by 5:00 pm on 1 April 2016 (“the Payment”);

(b)      that on receipt of the Payment the Official Assignee is to transfer the

Painting to Ms Wilson;

(c)      that if Payment is not made within the stipulated time the Painting is to be realised as part of the profit forfeiture order made against the first respondent in this proceeding with the Crown to pay the applicant

50 per cent of the amount received from the sale of the Painting up to a value of $2,000;

(d)that any profit forfeiture order made against the first respondent in this proceeding includes a declaration that the funds remaining after the distribution to Ms Wilson referred to above at (c) will be included in that order should the Payment not be made; and

(e)       there  is  no  issue  as  to  costs  in  this  proceeding  between  the

Commissioner and Ms Wilson regarding her claim to the Painting.

[13]     The conditions set out above should be the final orders of this Court in this

proceeding in relation to Ms Wilson’s claim for relief in her own capacity.

Moore J

Solicitors:
Crown Solicitor, Tauranga
Mr Nabney, Tauranga

Mr Speed, Auckland