Commissioner of Police v Taunoa
[2024] NZHC 3989
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2023-441-36
[2024] NZHC 3989
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an application under sections 21 and 24
BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
WII ALLAN TAUNOA
Respondent
Hearing: 22 October 2024, further material received 1, 8, 22 November
2024
Appearances:
M J M Mitchell for Applicant J M Matheson for Respondent
Judgment:
20 December 2024
Reissued:
19 February 2025 (with redactions)
JUDGMENT OF McHERRON J
(Asset Forfeiture Order)
[1]The Commissioner of Police seeks an asset forfeiture order in respect of
$22,100 in cash located in the garage at Wii Taunoa’s home address.
[2]The primary issues for the Court’s determination are:
(a)whether the cash is “tainted property” such that it should be forfeited to the Crown; and
(b)if so, whether the Court should exclude property from the asset forfeiture on the basis of undue hardship.
COMMISSIONER OF POLICE v TAUNOA [2024] NZHC 3989 [20 December 2024]
Background
[3] Mr Taunoa lives in Napier at the same house as individuals who, in January 2021, were driving a Toyota registered to Mr Taunoa’s long-term partner. Those individuals came to police attention when they became involved in an altercation with the occupants of another vehicle. They were seen brandishing weapons while chasing the other vehicle into Tamatea. Police arrived at Mr Taunoa’s home as the Toyota was parked in the driveway. Police searched the vehicle and its occupants and found a zip lock bag with a substance believed to be methamphetamine. Police then obtained a search warrant to search the property for controlled drugs. During the search, Mr Taunoa was present, together with two other people who were living there.
[4] Police wanted to search the locked garage at the back of the property. No one there had or would offer the key. So, a police officer picked the lock. Inside, there was a large quantity of cash, police radio scanners, and a large television screen linked to CCTV cameras located around the property. Police allowed the occupants of the house to take some clothing and other personal items. Then, police excluded them from the address so they could carry out a full search.
[5]During their search of the garage on 8 January 2021, police found:
(a)a black toilet bag in the garage containing approximately 57 grams of methamphetamine and a set of digital scales;
(b)two cell phones near the toilet bag. Police have identified that one of the cell phones located in the garage belonged to Mr Taunoa and the other belonged to his partner. Both phones contained messages identifying them respectively as the users of the phones;
(c)(on the phone belonging to Mr Taunoa), a photograph of him sitting in the garage (the location where the drugs and money were found by police). The photograph was taken on 11 December 2020, 27 days before the police search. On this phone, police also found an incoming message offering to sell a pound of cannabis for $3,500;
(d)approximately 55 grams of cannabis head material in a brown bag in a cupboard nearby;
(e)inside the middle drawer of a wooden bedside cabinet, within a metre of the methamphetamine and cannabis, under three $50 notes, a cell phone box containing $4,050;
(f)another cell phone box in the same drawer containing $17,900.
[6] The Commissioner submits that the combination of pre-packaged methamphetamine and cannabis, drug paraphernalia, $22,100 in cash, police scanners, cell phones, and a CCTV surveillance system all found in Mr Taunoa’s garage strongly indicates controlled drugs were being supplied from there. Further, the Commissioner submits the presence of these items indicates Mr Taunoa’s involvement in the supply and possession for supply of methamphetamine and cannabis.1 These offences are significant criminal activity in terms of s 6 of the Criminal Proceeds (Recovery) Act 2009 (the Act), as they are offences punishable by at least five years’ imprisonment.
Further investigations
[7] On 3 August 2021, police interviewed Mr Taunoa about the items they located in their search of the garage. He denied any knowledge of the methamphetamine but said the money was his and that it had been given to him by his sister, Ms Taunoa, to purchase two cars. Ms Taunoa won over $13 million in Lotto. As she confirmed in cross-examination, Ms Taunoa told Constable Shaun Kennard she gave around
$30,000 to Mr Taunoa in the years after her 2016 Lotto win.
[8] However, police submit their analysis of Mr Taunoa’s bank statements and declared sources of income shows that, by the end of 2017, he had spent almost all the
$30,000 given to him by his sister. For this reason, police submit Ms Taunoa did not give the $22,100 cash to him.
1 Misuse of Drugs Act 1975, ss 6(1)(c), 6(1)(f), 6(2)(a), 6(2)(c).
[9] Constable Kennard described what was found on Mr Taunoa’s phone. The police found messages between an individual who the police say was Mr Taunoa and an individual identified by the police as Mr [ ]. Mr [ ] has convictions for possession and supply of controlled drugs, including methamphetamine and cannabis.
[10] Mr Kennard referred to text messages exchanged on 10 December 2020 in which police submit Mr [ ] asked Mr Taunoa if he “want[s] any more my peps wanna know”. Police say Mr Taunoa replied:
Im allgood @ma bro@ the town is all loaded@ your mate(2), his ws short only 7 ..I still got them all too@ all passing on them..
[11] Mr Kennard’s interpretation of this message is that Mr Taunoa was indicating he did not require any more methamphetamine, as Napier has an oversupply. Mr Kennard deposed he believes this is a reference to being under-supplied seven grams of methamphetamine.
[12] Mr Kennard deposed the final part of this message can be understood as meaning that Mr Taunoa is unable to sell that batch of methamphetamine. Mr Kennard referred to a subsequent message police submit was from Mr [ ] to Mr Taunoa on 25 December 2020, in which he states he will “fix up the mess” and “swap wat u got left on u and give sum of mine wen it ready”. Mr [ ] then apologised and said “I didn’t no wat the stuff was like so ill sort it out …”. Mr Kennard says he believes Mr [ ] was saying he was unaware that the methamphetamine he supplied to Mr Taunoa was of poor quality.
[13] Based on these interlinked strands of evidence, police charged Mr Taunoa with possession of methamphetamine for supply and possession of cannabis for supply. However, police did not proceed with these charges as it was not possible to exclude the possibility that the drugs and cash belonged to the other occupants of the address (who also had access to the garage).
[14] Accordingly, the charges against Mr Taunoa were formally dismissed without prejudice under s 147 of the Criminal Procedure Act 2011. No one was charged in relation to the methamphetamine located in the vehicle as police could not prove who possessed the drugs.
Mr Taunoa’s opposition
[15] Mr Taunoa asks the Court to dismiss the forfeiture application, and an associated restraint application.
[16] Counsel for Mr Taunoa, Ms Matheson, submits there is no direct evidence nor sufficient circumstantial evidence to infer that Mr Taunoa’s $22,100 in cash is “directly or indirectly derived from cannabis or methamphetamine offending (or both)”. It therefore should not be viewed as “tainted property”.
[17] Ms Matheson also submits it is reasonably likely Mr Taunoa will suffer undue hardship if the cash is forfeited. Section 51 of the Act provides that, on an application made by the respondent before an assets forfeiture order is made, the Court may exclude certain property from the order if it considers that, having regard to all the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property is included in the forfeiture order. Ms Matheson made an oral application under s 51 at the hearing, which she followed up with a written application on 1 November 2024. I will turn to Mr Taunoa’s s 51 application below, after first considering the Commissioner’s forfeiture application.
[18] Further, Ms Matheson says that in October 2022, when the relevant charges against Mr Taunoa were dismissed, Mr Taunoa had a right under the Search and Surveillance Act 2012 to have the $22,100 in cash returned to him.2
[19] Ms Matheson acknowledges the fact that Mr Taunoa’s cash was found near drugs is “not a great start” for him. Nevertheless, Ms Matheson submits there is no traceable connection between the $22,100 in cash and the drugs that were found in the
2 Ms Matheson does not cite a specific provision of the Search and Surveillance Act 2012, but I gather she is referring to s 151(1)(e)(i) and (2). See also ss 123A–123E (provisions applying to the seizure of cash found in suspicious circumstances and the return or release of cash seized).
garage.3 Ms Matheson acknowledges that the presence of a quantity of cash can warrant an inference a person has been engaged in significant criminal activity.4 However, in the present case, Ms Matheson submits there is no evidence to support such an inference.
[20] Ms Matheson submits that persons and families who give koha, money, or advances to their loved ones should not be discriminated against in criminal proceeds hearings, simply because their culture or custom does not traditionally use legal formalities or keep records of the exchange. Ms Matheson submits that tikanga bears on the Court’s consideration of this issue.
[21] Ms Matheson refers to Commissioner of Police v Brown, in which Harvey J found it was “not entirely unheard of or unusual” that the owner of cash would have been saving for family events with small amounts of money, despite being an alleged methamphetamine dealer.5 In that case, the property was found to be “not necessarily tainted” and it was released.6 In relation to Mr Taunoa’s cash, Ms Matheson submits that the Commissioner cannot demonstrate any traceable link between the cash and alleged drug offending and that it is equally likely or “not so fanciful as to be unbelievable” that the cash in the garage came from his sister Ms Taunoa.
Mr Taunoa’s view of the facts
[22] Ms Matheson summarises the factual context, as set out in the affidavit evidence, as follows:
(a)Mr Taunoa had family and friends staying with him at his home during the New Year and Christmas holiday period of 2020–2021.
(b)On 7 January 2021, police arrived at Mr Taunoa’s home. He was minding his own business.
3 Commissioner of Police v Drake [2017] NZHC 2919.
4 Commissioner of Police v Jeffries [2014] NZCA 586.
5 Commissioner of Police v Brown [2023] NZHC 3979 at [77].
6 At [78].
(c)The cash police found in the garage belongs to Mr Taunoa. Ms Taunoa, who won over $13 million in Lotto in 2016, gave the money to him.
(d)The garage where the cash was found had been unlocked over the Christmas and New Year period. Mr Taunoa had never seen a black toilet bag before in his garage (of the kind in which the methamphetamine and drug paraphernalia was found).
(e)He says he did not know who had locked the garage or who had the keys.
(f)Sharing and gifting property including cash is part of Mr Taunoa’s culture, as is the lack of record keeping in relation to such gifts and exchanges.
(g)Ms Taunoa had visited Mr Taunoa regularly and given money to him. In January 2021 there were a lot of whānau and friends at Mr Taunoa’s home. Ms Taunoa was there at the same time as well.
(h)Mr Taunoa denies all allegations of significant criminal offending.
[23] He denies he has unlawfully benefited from significant criminal activity. He says that he does not, nor has he ever used, smoked, or puffed or sold any methamphetamine. Mr Taunoa also says that earlier on the day of the search, he took money out to give to two individuals to dump green waste from the garden and for petrol for their truck.
[24] Mr Taunoa denies the messages with Mr [ ] found on his phone were to or from him. He submits there is nothing in the messages to identify him as the sender. Moreover, he submits that others were using his phone.
The $22,100 was a gift
[25] Mr Taunoa says the $22,100 cash was a gift from his sister Ms Taunoa. In an affidavit, Mr Taunoa deposed that the total amount of money his sister gave him was
more than $30,000. That was just the total amount she had given him electronically, but she gave him additional cash when she came to Napier too. Mr Taunoa deposed that he estimates Ms Taunoa gave him approximately $90,000 since she won Lotto. Further, Mr Taunoa deposes that the cash found in the garage was the balance of cash his sister Ms Taunoa gave him.
[26] On one occasion, according to Mr Taunoa, Ms Taunoa gave him cash to purchase two cars, so she had a car to travel out of town when she needed to. Mr Taunoa said he put this cash away “for a raining day … for when we really needed money”. He says he put his money into his cell phone box because cash fits perfectly there. This is kept in his desk in his garage, which is normally locked.
[27] In Ms Taunoa’s affidavit, she deposed that she gave Mr Taunoa and other whānau cash on multiple occasions, but she cannot recall exactly when. She says that it is incorrect to say (as Mr Kennard does) that $30,000 is the total or only amount of money she had given to Mr Taunoa since 2016. However, in her oral evidence, Ms Taunoa confirmed that what she had told Detective Sergeant Kennard on 25 May 2023 was correct, namely that she had given Mr Taunoa around $30,000 over several years.
[28] Ms Taunoa said she has never personally witnessed or known her brother to be involved with any kind of drug related criminal activity. She said that she has never known or witnessed Mr Taunoa taking drugs, let alone selling drugs at his home. She confirmed that, in January 2021, there were several whānau and friends at Mr Taunoa’s home for Christmas and New Year and that she was staying there too.
Commissioner’s submissions
[29] The Commissioner’s application is advanced on the basis that Mr Taunoa was involved in significant criminal activity himself, namely supplying methamphetamine and cannabis, and that he has benefited from that significant criminal activity. The Commissioner acknowledges that his case is inferential, based on the following strands of evidence which together are “suggestive of [Mr Taunoa’s] involvement in drug dealing”:
(a)Police found 57 grams of methamphetamine in the same room and within one metre of the $22,100.
(b)Some of the methamphetamine was labelled and packaged for sale.
(c)Police found 55 grams of cannabis head (a quantity nearly twice the amount at which the presumption of supply applies)7 also within one metre of the cash, inside a cupboard above the chest in which the cash was located.
(d)The garage in which the cash and methamphetamine was located has a sophisticated CCTV set-up to alert the occupants in real time of anybody approaching.
(e)Police radio scanners and methamphetamine utensils, including pipes, cannabis bongs, and scales, were also present in the garage.
(f)Mr Taunoa is the usual occupant of the garage, has “total control” of it, and is the person who usually holds the keys.
(g)When police entered Mr Taunoa’s property unannounced, the garage was locked. Inside the garage, close to where the methamphetamine, cannabis and cash were located, was Mr Taunoa’s cellphone displaying a recently received text message. The police submit this suggests he had only recently vacated the garage, locking the door behind him. The actively displayed text message was from somebody offering to supply
$3,500 of cannabis.
(h)Subsequent analysis of that phone shows messages between a known drug dealer (Mr [ ]) and the user of the phone, including offers to supply methamphetamine and discussions of fixing an issue relating to a defective/short supply. The police say it should be inferred that Mr Taunoa was sending those messages, but he denies that.
7 Misuse of Drugs Act, sch 1.
(i)Mr Taunoa is not in paid employment and does not have access to any source of funds allowing him to legitimately account for the presence of such a large sum of cash in his garage.
Applicable law
[30] Under the Act, property can be forfeited without any conviction in relation to the alleged criminal activity.8 Section 50 requires the High Court to make an asset forfeiture order if satisfied on the balance of probabilities that the items of property in question are “tainted” property. “Tainted property” is defined to include property that has wholly or in part been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.9
[31] “Significant criminal activity” is defined to mean either offending that, if prosecuted, would consist of or include one or more offences punishable by a maximum term of imprisonment of five or more years or an offence from which benefits of a value of $30,000 or more have been acquired or derived.10
Discussion
Is the $22,100 tainted property?
[32] I must determine whether the Commissioner has established on the balance of probabilities that the $22,100 is “tainted property”, that is, property acquired as a result of, or directly or indirectly derived from, significant criminal activity. The significant criminal activity in the present case is alleged drug offending. Here, the Commissioner seeks to establish that it was Mr Taunoa himself who was involved in the significant criminal activity from which the cash was allegedly derived.
8 Criminal Proceeds (Recovery) Act 2009 (Act), s 4(1)(a).
9 Section 5.
10 Section 6.
[33] In answering this question, it is important to evaluate all relevant strands of evidence.11 In Commissioner of Police v de Wys the Court of Appeal said:12
[9] Circumstantial evidence allows a fact-finder to infer that a particular fact exists, even if there is no direct evidence of it. A single piece of circumstantial evidence will generally allow for more than one explanation. However, a number of separate items of circumstantial evidence, when considered together, may strongly support the drawing of a particular inference. Circumstantial evidence derives its force from the involvement of a number of factors that independently point to a particular factual conclusion. The analogy that is often drawn is that of a rope: any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so.
[10] It is only the ultimate issue in a circumstantial case that must be proved to the required standard. In this case that issue is whether the respondents benefitted from significant criminal activity. The Commissioner must prove that they did, on the balance of probabilities. He is not required, however, to separately prove each individual strand of evidence to the balance of probabilities standard before the Court can take that evidence into account
…
[34] Overall, and by a slender margin, I consider it is more likely than not that the cash that was located in Mr Taunoa’s garage is tainted property, as defined in the Act. I have reached this conclusion based on the following factors:
(a)The cash was found in a box located near the methamphetamine and cannabis in the garage.
(b)The presence in the garage of other material associated with consumption and supply of drugs, namely bongs and scales.
(c)The presence of security related equipment (CCTV set-up and police scanners) suggesting the garage was a centre of criminal activity requiring special protection from intrusion.
(d)The fact that drugs were found in a car registered to Mr Taunoa’s partner that was also located on the property.
11 Commissioner of Police v Law [2021] NZCA 517 at [22].
12 Commissioner of Police v de Wys [2016] NZCA 634 at [9]–[10] (footnotes omitted).
(e)The presence of messages on Mr Taunoa’s phone indicating drug supply related activity.
[35] Mr Taunoa presented other plausible explanations for the presence of the cash and also to suggest it may not have been Mr Taunoa himself who was responsible for the drug supply activity. It appears to have been accepted that other individuals had access at various times to the garage. And it was Mr Taunoa’s evidence that other individuals also had access to and used his phone.
[36] It is noteworthy that the messages on the phone indicating drug related activity made no reference to Mr Taunoa and cannot conclusively be said to have been intended for him.
[37] Moreover, I could not discount Mr Taunoa’s evidence that he had the CCTV equipment in the garage for general security reasons.
[38] It was not in dispute that Mr Taunoa’s sister had a substantial Lotto win and that she had made financial contributions to him and other members of his family over the years. However, I find the evidence of Mr Taunoa’s sister was too unclear and equivocal as to the amount of cash she had given to her brother to provide any reliable basis for a finding that the $22,100 had come from her.
[39] Furthermore, the Commissioner has established that Ms Taunoa’s gifts that were made by way of electronic transaction had been spent by Mr Taunoa. There was little evidence to support the accumulation of such a large amount of cash from the piecemeal and undocumented gifts made by Ms Taunoa.
[40] I must also take into account that Mr Taunoa has no drug related convictions apart from for the possession of cannabis seeds in 1987 and no convictions at all after 2003. Certainly, if he is involved in drug related offending of the scale alleged, he has managed to escape being brought to account for that for some time.
[41] However, the Act’s forfeiture regime does not depend on the establishment of offending to the criminal standard in order to make out the requirements for an asset forfeiture order.
[42] Having regard to all these considerations, I am satisfied that the grounds for a forfeiture order are made out.
Has Mr Taunoa established undue hardship would be caused if the cash is forfeited?
[43] The Court has a residual discretion to grant relief from forfeiture if satisfied that undue hardship is likely to be caused.13
[44] As flagged at the hearing, Ms Matheson filed an application under s 51 of the Act for exclusion of the full $22,100 from the assets forfeiture order because of undue hardship. Section 51 provides as follows:
51 Exclusion of respondent’s property from assets forfeiture order because of undue hardship
(1)The High Court may, on an application made by the respondent before an assets forfeiture order is made, exclude certain property from an assets forfeiture order if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property is included in the assets forfeiture order.
(2)The circumstances the Court may have regard to under subsection (1) include, without limitation,—
(a) the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the assets forfeiture order; and
(b) the nature and extent of the respondent’s interest in the property; and
(c) in the case of a type 1 assets forfeiture order, the circumstances of the significant criminal activity to which the order relates.
13 Section 51.
[45] The word “undue” in s 51 means something more than the ordinary hardship arising as a consequence of the execution of the forfeiture order. This will always be a matter of fact and degree, informed by the purposes of the Act and the s 51 considerations.14
[46] In support of his s 51 application, Mr Taunoa deposed that the money provided by his sister was used to pay for fixing and maintaining his vehicles, groceries, power and savings “for a rainy day”. Mr Taunoa says that since the police took his money away he has had difficulty repaying his local mechanic for the approximately $5,000 owed for repair bills in respect of the only vehicle in which (given his restricted movement) he can travel comfortably, has stopped supporting and gifting to his extended whānau, has had to sell his boat, has had trouble paying legal fees, has been unable to purchase an appropriate vehicle for his transport needs and has not been able to purchase a wheelchair or renovate his bathroom to accommodate his personal health and safety needs. Further, he says there are now concerns in his family (especially from his sister) about gifting him cash given the extant proceedings. He has “struggled to keep afloat”.
[47] Mr Taunoa deposed that his health deteriorated not long after the Commissioner’s application for restraint. He considers the criminal and civil proceedings have contributed to his poor health. Since the Commissioner’s application, Mr Taunoa has been accommodated in a makeshift shed at the back of his house at [ ]. After a fall, in which he fractured two vertebrae, he cannot lay down flat on his back and needs to sit up all the time. Since September 2023, he has had to remain in an orthopaedic chair and bed. Mr Taunoa has a large stomach mass growing from the side of his stomach which restricts his movement. He uses a walking frame. He is trying to arrange a wheelchair which, he says, would make a material difference to his dignity. He must wear bandages and takes a range of medications daily. A District Health Board nurse cares for him weekly.
14 Duncan v Commissioner of Police [2013] NZCA 477, (2013) 26 CRNZ 796 at [57].
[48] In response, the Commissioner says reliance on a sickness benefit as a sole source of income does not meet the high threshold required to establish exclusion under s 51, and instead falls into the accepted or acceptable category of difficulty that results from orders of this nature.15
[49] Although material from Mr Taunoa’s doctor suggests that most, if not all, of his current medical expenses are being met through the public health system (as the Commissioner contends), I am persuaded on balance by Mr Taunoa’s evidence which is squarely directed to this issue.16 In light of Mr Taunoa’s particular health needs, and the difficulty that he clearly has with his mobility, he is likely to face additional expenses for which the seizure and forfeiture of the $22,100 is reasonably likely to cause (and is causing) undue hardship for him.
[50] I acknowledge that respondents who find their financial circumstances constrained and have to live within their legitimate means do not often meet the threshold for undue hardship.17 Ms Matheson says Mr Taunoa’s hardship would go beyond the mere loss of the property. It is the fact that he was already living in very constrained circumstances before the cash was seized. This factor distinguishes the present case from Cheah v Commissioner of Police, relied on by the Commissioner.18 I agree — Mr Taunoa’s needs go further and are out of the ordinary.19
[51] Section 51 permits the Court to have regard to the use that is ordinarily made or is intended to be made of the property that is proposed to be forfeited. I am satisfied that Mr Taunoa has established that he has a genuine need to use that property for his health and other needs arising from his circumstances. I acknowledge, in Mr Taunoa’s words, that every day is a rainy day for him and his whānau.
[52] I am satisfied that any hardship will be grossly disproportionate. It is appropriate the Act’s objectives of recovery and deterrence be subordinated to
15 Citing Cheah v Commissioner of Police [2020] NZCA 253 at [73].
16 See the requirement for evidence specifically addressing undue hardship in McFarland v Commissioner of Police [2024] NZCA 16 at [83] citing Duncan v Commissioner of Police, above n 14, at [58].
17 Drake, above n 3, at [125].
18 Cheah v Commissioner of Police [2020] NZCA 253, above n 15.
19 Commissioner of Police v Song [2017] NZHC 2104 at [161].
Mr Taunoa’s needs.20 Forfeiture would be disproportionate to the scale of the alleged offending revealed by the evidence, especially given the uncertainty about who has offended, and given Mr Taunoa’s health situation and needs.21
[53] The Supreme Court has recently indicated the extent to which s 9 of the New Zealand Bill of Rights Act 1990 informs undue hardship under s 51 of the Act is a matter of public importance that remains unsettled at appellate level, with divergent High Court authority.22 In the resulting vacuum of settled authority, it is necessary to interpret and apply s 51 in a manner that is consistent with the rights and freedoms in the Bill of Rights Act.23
[54] I conclude the fact that Mr Taunoa is currently living in constrained financial circumstances, with significant health needs impacting all elements of his life, means that forfeiture is likely to involve disproportionately severe treatment or punishment. I conclude that undue hardship is reasonably likely to be caused to Mr Taunoa if the
$22,100 is included in the assets forfeiture order.
Result
[55] Accordingly, I make an order under s 51 excluding the full amount of the property that has been seized by the police, $22,100, from an assets forfeiture order. The police must return the seized cash to Mr Taunoa forthwith.
Application for restraining order dismissed
[56] The Commissioner also applied for a restraining order in respect of the same property. However, the Commissioner does not require that application to be determined. Having determined the forfeiture application, the basis for the restraining order has fallen away and I dismiss that application. It is unnecessary to deal with Ms Matheson’s argument that it was unlawful for the Commissioner to seek to have a restraint application and a forfeiture application heard at the same time.
20 Cheah v Commissioner of Police, above n 15, at [64] and Commissioner of Police v Nelson HC Auckland CIV-2010-404-989, 30 July 2010 at [75].
21 See Commissioner of Police v Yim [2019] NZHC 1681, [2019] NZAR 1311 at [53].
22 McFarland v Commissioner of Police [2024] NZSC 84 at [6].
23 New Zealand Bill of Rights Act 1990, s 6.
Costs
[57] My preliminary view is that Mr Taunoa is entitled to costs on a 2B basis. It is not immediately apparent to me that there would be a basis for increasing (or reducing) scale costs. If, despite these preliminary views, the parties cannot agree on costs, then they may file and serve memoranda (of no more than two pages):
(a)no later than 3 February 2025 for Mr Taunoa;
(b)no later than 11 February 2025, for the Commissioner.
McHerron J
Solicitors:
Elvidge & Partners, Napier for Applicant Castlefinn Law, Auckland for Respondent
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