Commissioner of Police v Robinson
[2021] NZHC 1856
•22 July 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2014-485-008678
[2021] NZHC 1856
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
HUGH JAMES ROBINSON
First Respondent
AND
SVETLANA ROBINSON
Second Respondent
AND
JAMIE DANIEL ROBINSON
Third Respondent
AND
ROADING CONSULTANTS AND APPLICATORS LIMITED
Fourth Respondent
AND
MASHA HOLDINGS LIMITED
Fifth Respondent
AND
AORANGI FAMILY TRUST
Sixth Respondent
Intituling continued over leaf
Hearing: 30 June 2021 Appearances:
K South for Applicant
A M S Williams and K E Bucher for Respondents and Third Interested Party
Judgment:
22 July 2021
JUDGMENT OF DUNNINGHAM J
COMMISSIONER OF POLICE v ROBINSON [2021] NZHC 1856 [22 July 2021]
AND BANK OF NEW ZEALAND LIMITED
First Interested Party
AND
MALTECH PROPRIETARY LIMITED
Second Interested Party
AND
HIGH PERFORMANCE HEALTH LIMITED
Third Interested Party
AND
PETER GEOFFREY ROBINSON
Fourth Interested Party
AND
BULLER DISTRICT COUNCIL
Fifth Interested Party
This judgment was delivered by me on 22 July 2021 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Introduction
[1] The first, second, third, fourth, fifth and sixth respondents, and the third interested party (the respondents), apply for an order that these proceedings be dismissed or stayed pursuant to rr 15.1 or 15.2 High Court Rules 2016. The application asserts the delay between seeking a without notice restraining order in July 2014, and the filing of an application for civil forfeiture orders on 3 December 2019, amounts to an abuse of process and/or is inordinate and/or has prejudiced the respondents to such an extent that the respondents can no longer obtain a fair trial.
[2] The Commissioner opposes the application, saying when the history of the proceedings is considered, there is no inordinate or inexcusable delay, nor any special prejudice, and the interests of justice require the forfeiture application be heard and determined.
Background
[3] Before discussing the arguments, it is necessary to set out the history of these proceedings to give some context to the parties’ positions, and to show how a delay of more than five years arose between filing the without notice application for a restraining order and filing the substantive application for civil forfeiture orders.
[4] On 7 July 2014, the Commissioner applied to the High Court in Wellington for a without notice restraining order. The Court granted the without notice restraining order on the following day. The order restrained the following residential properties:1
(a)45b Carlyle Street, Sydenham, Christchurch;
(b)1 Palazzo Lane, Riccarton, Christchurch;
(c)5 Bridge Street, Reefton, Buller;
(d)16 Stanley Street, Sydenham, Christchurch.
[5] The properties were owned variously by the first, second, fourth and fifth respondents and the fourth interested party. The grounds for the application included that the respondents had unlawfully benefitted from significant criminal activity being the first and third respondents’ involvement in the distribution of controlled drugs.
[6] On 14 July 2014, an application for an on notice restraining order was filed in the High Court in Wellington. On 6 August 2014 the respondents filed a document in response. While they did not oppose the making of an on notice restraining order, they made reference to the fact that Mr Hugh Robinson (Mr Robinson) and his son, Jamie Robinson (the first and third respondents), would be involved in the criminal trials arising out of Operation Nebraska, and their lawyer was “instructed to not oppose the forfeiture hearing being set down after the Operation Nebraska trials are completed”. The on notice orders were made, without opposition on 15 August 2014.
1 Restraining orders were also sought in respect of a property at 7 Herald Street, Reefton but that application was abandoned when it was discovered the fifth respondent was no longer the owner of that property.
[7] The Commissioner and the respondents then negotiated over the intended sale of the family home of the first and second respondents at 1 Palazzo Lane, Christchurch with the Commissioner obtaining a restraining order, by consent, over proceeds of sale totalling more than $500,000. Orders varying the restraining orders were made to facilitate the sale and release of funds.
[8] On 30 July 2015 the on notice restraining order was extended, by consent, for a further period of one year. At this stage, the criminal trial involving Mr Robinson and his son Jamie Robinson had still not taken place.
[9] On 12 August 2016 the on notice restraining order was again extended for a further period of one year by consent. Again, the trial had not occurred.
[10] On 19 October 2016, Mr Robinson was convicted on the following charges following his jury trial:
(a)conspiracy to sell a Class C controlled drug, namely Benzylpiperazine (BZP);
(b)four charges of possession of BZP for supply;
(c)unlawful possession of a firearm; and
(d)unlawful possession of explosives.
[11] Following his conviction, Mr Robinson appealed to the Court of Appeal.2 On appeal, Mr Robinson challenged the pre-trial ruling admitting expert evidence by Ms Melanie van der Pol which analysed Mr Robinson’s financial activity and the financial affairs of his company. Her evidence was relied on to demonstrate that the large quantity of cash which Mr Robinson had access to could not be accounted for by the legitimate sales activity of High Performance Health (HPH), a health food and supplement business run by Mr Robinson. In particular, her evidence demonstrated how Mr Robinson set out to disguise, or launder, cash generated by the illegal sale of
2 Robinson v R [2017] NZCA 347.
BZP through his business and other bank accounts, and through purchasing properties. This was to rebut the defence case that the drugs seized through a search warrant were simply forgotten leftovers from previously legal manufacture, which Mr Robinson knew nothing about, and which belonged to his son Jamie Robinson.
[12] The Commissioner considered it was appropriate to await the outcome of the Court of Appeal hearing so he knew whether a retrial would be ordered with Ms van der Pol’s evidence excluded, before pursuing an application for forfeiture orders.
[13] On 4 August 2017 the on notice restraining order was again renewed with the consent of the respondents.
[14] Also on 14 August 2017 the Court of Appeal issued its judgment dismissing Mr Robinson’s appeal against conviction. This fact was not communicated to Detective Senior Sergeant McGowan, the manager of the Southern Asset Recovery Unit based in Christchurch, who was the contact point within the police for these proceedings. It was only in August 2018, when the on notice restraining order again needed to be renewed (and which was renewed with the consent of the respondents), that the Commissioner became aware that the appeal had been dismissed a year earlier.
[15]On 24 October 2018, the parties filed a joint memorandum stating:
(a)counsel for the first respondent had recently been instructed (new counsel was Mr Williams who still represents the respondents);
(b)the parties intended to engage in resolution discussions and required time for those discussions to take place; and
(c)the applicant was preparing forfeiture proceedings and expected to be in a position to file those proceedings in the New Year if the matter was not capable of resolution.
[16] In late 2018, the file was transferred to the Christchurch Crown Solicitor’s office from the Wellington Crown Solicitor’s office and that firm has had carriage of the file ever since.
[17]On 12 December 2018, the parties filed a further joint memorandum saying:
… resolution discussions have commenced and are ongoing. The parties require further time to continue [those] discussions. If resolution is not possible by 31 January 2019 … [t]he Commissioner expects to be in a position to file the forfeiture proceedings by 30 April 2019. …
[18] On 14 May 2019, and after settlement negotiations had failed to reach resolution, a minute was issued by the High Court recording that the Commissioner intended to pursue forfeiture orders.
[19] On 12 August 2019, the restraining order was again extended with the consent of the respondents.
[20] On 2 August 2019, Mr Robinson was examined by the Commissioner pursuant to an examination order. The Commissioner explains that this was done “as part of the finalisation of his case”. In terms of what the Commissioner calls “unexplained income”, Mr Robinson claimed in the course of being examined that he had “affidavits” and “bank records” which would support his version of events.
[21] On 11 November 2019, the respondents gave notice that they opposed any further extension of the restraining order. On 3 December 2019, the Commissioner filed the application for civil forfeiture orders.
[22] On 14 February 2020, the respondents were directed to file any stay application by 6 March 2020, with the case to be called in the list on 23 March 2020. No application was filed by that date and the call-over was vacated. The on notice restraining order was again renewed by consent.
[23] On 31 July 2020, the respondents filed the application to stay or strike out the proceedings.
[24] It is in the context of that chronology of events that the respondents make their application to dismiss or stay the proceedings.
The legal principles
[25] The parties agree on the legal principles applying to an application for an order dismissing a proceeding for want of prosecution. Those principles were summarised in Lovie v Medical Assurance Society New Zealand Ltd as follows:3
the applicant must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable, and that it has seriously prejudiced the defendant. Although these considerations are not necessarily exclusive, and at the end one must always stand back and have regard to the interests of justice, … if the application is to be successful, the applicant must commence by proving the three factors listed.
[26] While Lovie identifies three relevant considerations; inordinate delay, that is inexcusable, and which seriously prejudices the defendant, the overriding consideration is whether justice can be done at the trial despite the delay.4
The respondent’s submissions
Is there inordinate delay?
[27] Mr Williams submits that all three criteria are met in this case, thus warranting the stay or dismissal of the proceedings. Mr Williams points out more than five years elapsed between the making of the restraining orders and the eventual filing of the application for a forfeiture order. This is contrary to the intention noted by Mander J in Commissioner of Police v Jiang, that restraining orders are short term measures:5
[17] Restraining orders are temporary measures. They are “interim orders of limited duration”, intended “to preserve property while the Crown is gathering evidence to support an application for forfeiture”.
Mr Williams says the intention that restraining orders be of limited duration is reinforced by s 37 of the Criminal Proceeds (Recovery) Act 2009 (the Act), which
3 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC) at 248.
4 Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA) at 579.
5 Commissioner of Police v Jiang [2016] NZHC 2782 (footnotes omitted).
provides that a restraining order expires one year after the day on which it is made. It requires an application to the Court under s 41 of the Act to extend it.
[28] Mr Williams submits the delay of almost five and a half years before the application for civil forfeiture orders was eventually filed inevitably qualifies as “inordinate delay”. This is demonstrated by the comments of Ronald Young J in Commissioner of Police v Malcolm, where a restraining order had been on foot for nearly three years while criminal proceedings were completed.6 In the face of opposition to a further extension, Young J was only prepared to extend the restraining order for a further month, saying “this should be ample time for the Police to make an application for a profit forfeiture order”.7 Given the time from filing the restraining order application to filing the application for a civil forfeiture order was less in Malcolm than in this case, but was still described as being “significantly delayed”, the delay here must be inordinate delay in terms of r 15.2.
Was the delay excusable?
[29] In terms of whether the delay was excusable, Mr Williams initially submitted that no excuse had been offered by the applicant for the delay. In oral submissions, Mr Williams accepted that the delay prior to resolution of the criminal proceedings was explicable, but the delay from the release of the Court of Appeal’s decision to the filing of the civil forfeiture order application, was not. In particular, he rejected the suggestion that delays caused by the Commissioner’s lawyers (in particular by failing to advise the outcome of the appeal), or by “operational constraints” as outlined in the evidence of Detective Senior Sergeant McGowan, amounted to a “reasonable excuse”.
[30] In terms of delay caused by legal advisers, Mr Williams relied on the following observation in Lovie v Medical Assurance Society New Zealand Ltd:8
In these circumstances, to be sustainable any excuse would need to be convincing. But putting it baldly and without any intention of being unkind, the explanation was simply that plaintiffs’ counsel was busy and gave other work priority. This provides no excuse for either the barrister or his instructing solicitors. Thus the question of prejudice becomes critical.
6 Commissioner of Police v Malcolm [2013] NZHC 132.
7 At [6].
8 Lovie v Medical Assurance Society New Zealand Ltd, above n 2, at 253.
[31] Mr Williams also pointed to the case of Birkett v James, where Lord Diplock said:9
Where an action is dismissed for want of prosecution the fault must lie either with the plaintiff or with his solicitors or both. Which of them is to blame for the inordinate and inexcusable delay does not affect the prejudice caused to the defendant, which is the justification for the dismissal of the action; …
[32] Relying on these cases, Mr Williams says that the operational commitments outlined in Detective Senior Sergeant McGowan’s affidavit, including evidence of the other large cases relevant staff members were dealing with at the time, cannot amount to a reasonable excuse, nor can delays caused by the Commissioner’s lawyer.
[33] Similarly, Mr Williams submits that delays while the parties were discussing settlement does not excuse the applicant’s delay. In New Zealand Industrial Gases Ltd v Andersons Ltd, McCarthy J made the following observation:10
The second question is whether this delay was excusable and here we differ from the learned judge in the Court below who thought that over some of the time that was so because of the intimations from Mr Collins that settlement in some very small sum might be achieved. We place less weight on these observations, though we think it fair to say that though Mr Collins was growing impatient at the procrastination, he gave little evidence that he believed the action was dead, and indeed as late as December 1967 was prepared to sign a praecipe to set down. But fundamentally it was the plaintiff’s job to press on, and we think it failed lamentably and inexcusably over the whole of this period. We are not prepared to mince words about that.
[34] Likewise, in Nikau Holdings Ltd v Bank of New Zealand, Master Thompson struck out proceedings pursuant to r 478 of the High Court Rules in force at the time.11 In Nikau Holdings the proceeding was not issued until three to four years after the events in question, and it then took nearly nine years for a praecipe to be filed. In respect of the argument that some of the delay resulted from settlement negotiations, Master Thompson said “[a]nyway it is settled law that entering into settlement negotiations cannot excuse a plaintiff’s failure to progress his case to trial in an expeditious manner.”12
9 Birkett v James [1977] 3 WLR 38 (CA) at 51-52.
10 New Zealand Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58 (CA) at 62.
11 Nikau Holdings Ltd v Bank of New Zealand (1997) 11 PRNZ 254.
12 At 261.
[35] In Mr Williams’ submission, the adjournments which were sought by consent for the purposes of advancing settlement negotiations should not be excluded when considering whether there has been inexcusable delay in filing the application for civil forfeiture orders.
Is there serious prejudice to the respondents?
[36] The key plank to Mr Williams’ argument on behalf of the respondents is that the delay has caused serious prejudice, particularly as outlined in the affidavits of Mr Hugh Robinson and his wife Svetlana Robinson.
[37] Mr Robinson’s affidavits outline that the following witnesses have now passed away or are otherwise unavailable:
(a)Duncan McFarlane (died 30 December 2010);
(b)Nancy Emms (died 16 May 2017);
(c)Ernest Madden (died 22 October 2018);
(d)Alistair Barr (died 17 January 2019);
(e)Guy Devereaux (died 9 February 2019);
(f)Alene Robinson (died 1 August 2019);
(g)Barbara Gutry (died 22 October 2019);
(h)James Robinson (died 25 May 2021, but prior to that had dementia); and
(i)David Gutry (died 5 June 2021);
(j)Murray Wright (suffering from anxiety and unwilling to give evidence).
[38] Mr Williams points out that the Commissioner is seeking civil forfeiture orders on the basis that Mr Robinson unlawfully benefited from significant criminal activity and on the basis that the property proposed to be forfeited is tainted property because it was acquired directly or indirectly from significant criminal activity. However, Mr Robinson opposes the orders sought on the grounds that he did not profit from significant criminal activity, nor was the property he owned tainted property. The property was purchased from funds which were legitimate. He explains that he had both cash sales from his business and he had a:
… group of friends who over many years would borrow money from one another for the purpose of making investments. From time to time, I would borrow money from them or sell items to them to assist me in making investments, on other occasions I would lend money or purchase items to enable them to do so.
[39] He also gives evidence that some of the cash sums came from the sale of three paintings owned by his wife, purportedly by Pablo Picasso, Salvador Dali and Raoul Dufy, along with sale of jewellery his wife inherited.
[40] Mr Robinson deposes that each of the witnesses would have given evidence as to the sources and legitimacy of the funds which were used to acquire the property, which is clearly relevant to the respondents’ case at trial. The evidence they would have been able to give is summarised in Mr Robinson’s affidavits as follows:
(a)Guy Devereaux would have been able to testify that he purchased bulk synthetic cannaboid products for cash from 2010 to March 2013 (before they were made illegal);
(b)Alistair Barr would have testified to the authenticity and sale of paintings purchased from Mr Robinson’s wife Svetlana Robinson. While these paintings were purchased by David Gutry, they were later sold to Alistair Barr.
(c)Duncan McFarlane would have testified that he purchased jewellery from Svetlana Robinson in exchange for cash and motor vehicles.
(d)Ernest Madden was a car dealer who had numerous transactions with Duncan McFarlane which involved jewellery Duncan McFarlane had purchased from Svetlana Robinson’s inheritance.
(e)Barbara Gutry could corroborate her husband’s testimony that he had lent money to Jamie Robinson to purchase 16 Stanley Street, Sydenham, and she would support her husband David Gutry’s evidence that he purchased three paintings for cash from Svetlana Robinson’s inheritance.
(f)Nancy Emms was Mr Robinson’s mother and would have given evidence about the existence and sale of jewellery from Svetlana Robinson’s inheritance from Russia.
(g)Alene Robinson was Mr Robinson’s stepmother and would have given evidence in support of the existence of the sale of jewellery that Svetlana Robinson had inherited.
(h)James Robinson was Mr Robinson’s father. Mr Robinson would have been able to affirm the legitimacy of Svetlana Robinson’s inheritance. He had seen the artwork and other assets left to her and would give evidence of this.
(i)Murray Wright is Jamie Robinson’s father-in-law. Mr Robinson says that Mr Wright suffers from “debilitating anxiety”. But for this condition he would have given evidence to say that he lent Jamie Robinson $50,000 towards the purchase of 16 Stanley Street, Sydenham on 2 July 2013. This sum was transferred directly from his bank account to the trust account of Hill Lee and Scott, Solicitors. Because of his anxiety, when he was interviewed by Detective Bull, he misrepresented the true amount of the loan, saying it was $40,000 when the bank transfer clearly shows $50,000.
(j)David Gutry would have given evidence about a number of transactions which are relevant to the case, and in addition would support Mr Robinson’s evidence that he, Mr Gutry, and their friends would lend money to one another on the basis of a gentleman’s agreement.
[41] In addition, Mr Robinson says that other witnesses, because of age, would now struggle to remember the transactions for the purpose of Court proceedings. For example, he says Fritz Petersen, who is 75 years of age, borrowed money off Mr Robinson in 2012 and later returned it, but he cannot now remember any details about this, and Reginald Edmonds, who was present when Duncan McFarlane bought jewellery off Mr Robinson, would now struggle to recall this, because of his age.
[42] Mr Williams strongly rejects the Commissioner’s contention that Mr Robinson has had ample opportunity both when defending the criminal charges he faced, and as a consequence of the restraint proceedings, to marshal his witnesses and gather evidence to present in Court. Mr Robinson’s position is that the charges he was facing, which involved possession of firearms, possession of Class B controlled drugs and conspiracy to supply Class B controlled drugs, did not require him to prove the legitimacy of his assets. Because the Commissioner was not required to prove that supply had in fact occurred, much of the evidence which Mr Robinson intended to adduce for the forfeiture application, would have been irrelevant or inadmissible in the criminal proceedings. Mr Williams says Mr Robinson cannot be criticised for not having called, during his criminal trial, the witnesses he now intends to call, as the ambit of the civil forfeiture order proceedings are quite different from the criminal proceedings he went through in 2016.
[43] Mr Robinson also cannot be criticised for not obtaining the evidence in advance of civil forfeiture order proceedings being brought (and incurring costs in doing so), as it was not inevitable that such proceedings would follow the restraining order. In short, Mr Williams submits the applicant’s failure to make the application for forfeiture orders in a timely manner has meant Mr Robinson is now deprived of the ability to call evidence from key witnesses in his defence. In those circumstances, he cannot get a fair trial.
[44] Mr Robinson also outlines the prejudice caused to him by the ongoing presence of the restraining order. He says it has limited his ability to rent out the properties he and related parties own, causing loss of income, has limited his business opportunities, including to market an anti-inflammatory product called Theragold more widely, and has had a general impact on his and his wife’s standard of living and health.
Dismissal for abuse of process
[45] Alternatively, the respondents submit that the proceedings should be dismissed pursuant to r 15.1(1)(d). He points out that abuse of process can take many forms and one potential ground of abuse of process is where a party has, commenced or pursued a proceeding in relation to a claim that is so stale that a fair trial is now impossible and “justice could no longer be done”.13
[46] For the same reasons as are relied on to support the application for dismissal for want of prosecution, Mr Williams submits that to allow the proceedings to continue would be an abuse of the Court processes.
The applicant’s submissions
Is there an inordinate delay?
[47] The Commissioner accepts there has been delay, but does not consider there has been inordinate delay in this case. Ms South points out that Mr Robinson emphatically denied that he was responsible for BZP manufacture or sale after it became unlawful, and he blamed the possession of all items on his son and on inadvertent possession without any intention of supply. He disputed the evidence of Melanie van der Pol regarding his financial transactions which countered this defence and he called his own trial evidence about where his surplus funds had come from. In those circumstances, the Commissioner considered it was appropriate to wait the result of the criminal prosecution before proceeding with the forfeiture application. As Ms South says, the outcome of the criminal case would have a direct impact on the manner and scope in which the forfeiture application was cast. She also notes that the
13 A C Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.05].
respondents were explicit that they consented to the forfeiture proceedings being dealt with after the criminal proceedings.
[48] Ms South points out that it was not appropriate to file the application in advance of the criminal trial and then seek amendments later. Indeed, s 47 of the Criminal Proceeds (Recovery) Act 2009 prohibits the Commissioner from amending an application to include additional property unless specified circumstances arise. Furthermore, she points out that requiring the Commissioner to file and prosecute the forfeiture application ahead of a criminal jury trial would inevitably spark justified complaint on the part of the respondents that their right to silence was being abrogated by the need to give evidence in a civil context in order to defend their assets.
[49] In Ms South’s submission, the operative delay is between August 2017, when the Court of Appeal dismissed Mr Robinson’s appeal against conviction, and 3 December 2019 when the application was filed. This is a delay of two years and three months. However, in that time a number of events took place:
(a)Mr Robinson was a sentenced prisoner at the beginning of this period until his parole on 26 February 2018;
(b)the restraining order was renewed in 2018 by consent;
(c)the file was transferred to the Christchurch Crown Law Office in late 2018;
(d)good faith settlement negotiations were on foot from late 2018 until late 2019;
(e)the restraining order was renewed in July 2019 by consent;
(f)Mr Robinson was examined in August 2019.
[50] In Ms South’s submission this cannot be described as delay which was materially longer than the time which was usually regarded by the Courts and the
profession as an acceptable period of time, although she accepts that the overall delay is unsatisfactory.
Was the delay excusable?
[51] The Commissioner’s submissions on whether the delay is excusable rely, in part, on the submissions made in support of saying the delay was not inordinate. In addition, Ms South submits that any delays were not deliberate or the result of laziness. While there was a lack of communication for one year with the Commissioner, between the outcome of the appeal and when a further extension was sought for the restraining order, in all other stages, the Commissioner was diligent and consistent in his efforts to resolve and finalise the case.
[52] Furthermore, there were other significant operational demands on the Southern Asset Recovery Unit, with five other significant files that were being dealt with by a staff of five at the time the Robinson file was being prepared.
Is there serious prejudice to the respondents?
[53] The Commissioner submits the respondents cannot claim serious or incurable prejudice in this case as a result of the delay. The starting point is the evidence which is sought to be called regarding the sale of paintings and jewellery which Svetlana Robinson inherited, along with cash loans, is still available as Mr Robinson, his wife and his son are still available to give evidence. Thus, the crux of the evidence they seek to call can still be adduced from them as the primary witnesses. What the respondents really complain about is their impaired ability to call corroborative evidence of those transactions from people they know.
[54] In addition, the significance of any prejudice needs to be seen in the context of the criminal trial and the issues raised in it as well as the fact Mr Robinson was on notice of the Commissioner’s intention to seek forfeiture orders since 2014, and yet failed to obtain affidavits or witness statements from that time onwards. Ms South notes that only one of the witnesses proposed to be called, David Gutry, was called at the criminal trial, despite the importance of that occasion from Mr Robinson. Ms South also notes that one proposed witness, Duncan McFarlane, died in 2010, so
there is no prejudice occasioned through the Commissioner’s delay in respect of that witness.
[55] In any event, she notes that at his examination on 27 August 2019, as to the sources of his cash sums, and the funding of 16 Stanley Street, Mr Robinson emphatically claimed that the witnesses had “all given [him] affidavits”. This is quite contrary to his current claim that he needs the oral evidence of these witnesses.
[56] Ms South says the submission that the evidence at Mr Robinson’s criminal trial was addressing completely different issues from those that arise in the current proceedings is inaccurate. The criminal trial did turn on the legitimacy of cash bankings and funds that paid for assets as evidence which countered his assertion he had nothing to do with the supply of controlled drugs. This was the whole point of Ms van der Pol’s evidence which Mr Robinson challenged on appeal. It was also the reason Mr Robinson called seven witnesses to try and explain the legitimacy of his cash resources. In that regard, Mr Gutry gave evidence at that trial and there is no reason why that evidence cannot be adduced as hearsay evidence.
[57] In summary, Ms South submits while there are aspects of delay, it is not at a level that can be described as inordinate, and in the circumstances, as outlined, the delay is excusable. In any event, the actual prejudice to the respondents is limited. The Court is not deprived of the evidence which is central to the respondents’ case and justice can be done at trial despite the delay. As it is in the public interest to deal with the allegation that the respondents have unlawfully benefited by at least $1,400,000 as a result of the significant criminal activity, it is in the interests of justice for the application to be heard and determined.
Discussion
Was there inordinate and inexcusable delay?
[58] The considerations of inordinate and inexcusable delay are linked, as the word “inordinate” means “excessive”,14 and that carries with it the implication that the delay
14 Catherine Soanes and Angus Stevenson (eds) Concise Oxford English Dictionary (11th ed, Oxford University Press, Auckland, 2004) at 733.
is unjustified or unwarranted. Excusable delay will not, generally, be inordinate delay. Thus, while the delay between filing the restraining order application and filing the civil forfeiture order application is acknowledged to be significant, the real issue is whether it is inexcusable.
[59] In my view, and Mr Williams accepted this in submissions, the delay until the conclusion of the criminal proceedings was clearly excusable. The respondents actively sought this delay, for obvious reasons. The respondents would have been prejudiced if the application for civil forfeiture orders had gone ahead while they were defending the criminal proceedings, particularly as the respondent’s right to silence would have been compromised.
[60] I also accept that the Commissioner’s case could not reasonably be finalised until the criminal proceedings had concluded. Evidence may have emerged in the case which contradicted the Commissioner’s claims, necessitating an amendment to the Commissioner’s case. It was sensible for the Commissioner to hold off filing the application for civil forfeiture orders until the criminal case was concluded, and the respondents’ claims that the cash sums received by them and used to acquire property were tested in that forum.
[61] The delay which is not excused is the delay between the delivery of the Court of Appeal’s decision on Mr Robinson’s criminal appeal, and the application for an extension of the restraining orders made a year later. While this is explained by a communication failure, there was a clear failure on the part of the Commissioner’s advisors to keep the Commissioner informed.
[62] However, I do not consider the Commissioner can be criticised for the delays from August 2018 onwards, as these are reasonably explained.
[63] First, there was a natural hiatus when Mr Williams was instructed as counsel for the respondents in late 2018. He needed to acquaint himself with the file and then to see if settlement was possible before the respondents had to address an application for civil forfeiture orders.
[64] While I accept that the fact of settlement discussions is not ordinarily accepted as an excuse for delay, in the cases relied on by the respondents there was no suggestion in those that the defendant had agreed to a delay. In my view, the circumstances in the present proceedings are different. A joint memorandum was filed confirming the parties’ agreement to settlement discussions, and, at least for some period, to a delay by the Commissioner in filing the civil forfeiture order application. This is also indicated by the continuing consent to the restraining orders.
[65] From the point the settlement discussions broke down, I accept that the Commissioner acted reasonably expeditiously. There was an application for an order for examination of Mr Robinson, which was clearly relevant to the preparation of the application for profit forfeiture orders.15 Three and a half months after the examination took place, the forfeiture application was filed.
[66] Ironically, the subsequent delays have been the result of the respondent’s delay. On 14 February 2020, Osborne J directed that any stay application be filed and served by 6 March 2020. The application itself was only filed on 31 July 2020 and the supporting affidavits not served until 3 September 2020. Any loss of witnesses after this date, cannot be attributed to the applicant.
[67] In summary, the delay was significant, but largely excusable, although a year of it was not adequately explained. Nevertheless that, on its own would not justify granting the application if justice can still be done.
Is there serious prejudice to the respondent?
[68] In my view, the application turns on whether there is such serious prejudice to the respondents as a result of the delay, that it is appropriate to dismiss or stay the proceedings. As Eichelbaum J said in Lovie v Medical Assurance Society NZ Ltd, “[a]n overriding consideration is whether justice can be done despite the delay”.16
[69] Before discussing Mr Robinson’s ability to conduct his defence, I note he gives evidence that the ongoing restraining orders have restricted their ability to rent the
15 Under s 106 Criminal Proceeds (Recovery) Act 2009.
16 Lovie v Medical Assurance Society New Zealand Ltd, above n 2, at 253.
properties and caused them financial hardship. However, I accept the Commissioner’s submission that the orders did not prevent them from renting the properties and collecting that rental, nor have the orders affected their employment opportunities. Any other hardship can be addressed, if it meets the statutory threshold, in the context of the civil forfeiture order application.
[70] The respondents’ defence is that the property and money that is restrained can be shown to have come from legitimate sources and is not in any way linked to the offending Mr Robinson was convicted of.
[71] The first issue is whether, taken at face value, the witnesses could give evidence which is relevant to the respondents’ defence. I accept that, at least superficially, the unavailable witnesses could confirm that:
(a)the jewellery and artworks existed;
(b)they were sold by Mr Robinson for cash sums; and
(c)he obtained cash in other ways, for example, through undocumented loans from friends, or by the sale of synthetic cannabis products before they were made illegal.
[72] However, the Commissioner challenges the utility of this evidence in a number of ways:
(a)most of the evidence was not thought of sufficient utility for Mr Robinson to call it in the criminal proceedings where the source of the large sums of cash he had access to, was in issue;
(b)some of the witnesses have convictions themselves including for drug and dishonesty offending (Fritz Peterson, Reginald Edmonds, Guy Devereaux, Alistair Barr and Ernest Madden) and their credibility is questionable;
(c)the scope of some witnesses’ evidence appears to have changed over time, or is inherently implausible (for example, David Gutry’s evidence that he purchased the paintings without having them checked for authenticity, did not know where they came from, or who the artists were, and relied on a verbal valuation from Mr Robinson at the time he purchased them).
[73] An application for stay or dismissal of the proceedings is not a mini trial and this Court cannot resolve issues of credibility in this type of hearing. However, I accept the Commissioner’s submission that the key witnesses, who can attest to Svetlana Robinson owning and selling the paintings and jewellery, and to the other alleged financial dealings, are still available. This is not a case where the primary witnesses are lost through the delay.
[74] Furthermore, it is clear that a number of the relevant transactions involve third parties who are still available, or where there should be a paper trail to demonstrate the source or the destination of the funds. For example, when Mr Robinson was examined on 27 August 2019, and was asked to explain the source of the $430,000 which funded the purchase of 16 Stanley Street, he explained this as follows:
(a)$8,000 deposited by Murray Coates, who was Mr Robinson’s office manager, this money came from his mother-in-law Jeanette Healey. Mr Robinson also stated “I’ve got an affidavit supporting this … and she can produce bank records”.
(b)$5,000 from Aleksey Kiroshka, being repayment of money Mr Robinson had lent his mother.
(c)$2,000 from the Global Commodities account.
(d)$5,000 from Global Commodities from the sale of a car.
(e)$5,000 “a loan from Dave Gutry”, which Mr Robinson guaranteed.
(f)$6,000 which was “another loan from Jeanette Healey”.
(g)$9,000 came from Sasha Radujko, being “key money to secure the lease”.
(h)$50,000 which Jamie Robinson borrowed from his father-in-law Murray Wright;
(i)$35,000 which was from David Gutry as a loan;
(j)$8,000 which came from a truck Mr Robinson sold to a Mike King which is covered by an affidavit from Mike King, and where Mr Robinson produced an NZTA transaction receipt showing the change of ownership.
[75] It is evident that most of these people are still available as witnesses. There will also be records, such as bank records which could authenticate these statements, if correct. Furthermore, Mr Robinson, himself said during the examination that he had affidavits from these people to support these statements. He has not resiled from that position in evidence before this Court. While I accept there was no onus or obligation on him to marshal his evidence in advance of the civil forfeiture order application being filed, if he has done this, he cannot claim prejudice.
[76] I also accept the Commissioner’s position that the source of Mr Robinson’s funds was squarely in issue in his criminal proceedings. Ms van der Pol’s evidence was called for the express purpose of demonstrating Mr Robinson was receiving large sums of cash which were otherwise unexplained, to demonstrate he was connected to the supply of BZP, even if that was not the specific charge he faced. Furthermore, he called witnesses, including David Gutry, Aleksey Kiroshka, Fritz Petersen, Michael King and Paul McKay at his criminal trial, to attest to some of the transactions which were said to give rise to the quantities of cash Mr Robinson had. Those witnesses are either available or their evidence may be adduced as hearsay evidence. It is a logical inference that if other parties had credible evidence to give in support of that position, they, too, would have been called.
[77] Mr Robinson still has a range of witnesses available, including most of those he called at his criminal trial, to give oral evidence regarding the source of the funds which are in question. More importantly, there is no reason why he cannot obtain and produce bank, company or law firm records at the hearing which would reliably trace where funds came from, if, in fact, their source is legitimate.
[78] In summary, I am left in no real doubt that Mr Robinson is able to conduct his defence and sufficient witnesses remain who could corroborate his defence, if true, for justice to be able to be done.
Result
[79]Accordingly, the application to dismiss or stay the proceedings is dismissed.
[80] Costs should follow the event and my preliminary view is that costs should be awarded on a 2B basis. If costs cannot be agreed, I reserve leave for counsel to file memoranda on any disputed issue. Any such application must be filed within 20 working days of the date of this decision.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
A M S Williams, Barrister, Christchurch
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