Commissioner of Police v Vincent
[2015] NZHC 1548
•6 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-0056 [2015] NZHC 1548
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
LEE VINCENT First Respondent
DIANNE ERLENE ASHBY Second Respondent
Hearing: On the papers Appearances:
M Harborow for Applicant
T J Rainey and S T A Ellis for RespondentsJudgment:
6 July 2015
JUDGMENT OF WOODHOUSE J [evidence by AVL: first respondent's application]
This judgment was delivered by me on 6 July 2015 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
COMMISSIONER OF POLICE v VINCENT [2015] NZHC 1548 [6 July 2015]
[1] In this proceeding under the Criminal Proceeds (Recovery) Act 2009 (the Act), the Commissioner of Police seeks profit forfeiture and asset forfeiture orders against Mr Vincent and Mrs Ashby. In the usual way evidence has been provided by affidavit. The Commissioner has given notice that Mr Vincent is required to be available for cross-examination. Mr Vincent lives in Thailand. He applied for an order that the cross-examination, and any re-examination, be conducted by audio visual link (AVL). The Commissioner opposed that application.
[2] Having received full written submissions for the parties I advised on 30 June
2015 that the application was granted with reasons to follow. These are my reasons. [3] Mr Vincent’s grounds for the application, stated in summary form, were:
(a) He resides permanently in Thailand, has done so since April 2010, and lives there with his wife and infant child, both of whom are Thai nationals.
(b)All of his assets have been restrained as part of this proceeding and he has no money to come to New Zealand.
(c) There is an outstanding warrant for his arrest. It is said that this is in respect of charges under the Misuse of Drugs Act 1975 which are related to this proceeding and that those charges were laid while Mr Vincent was living in Thailand.
(d)He is unable to make arrangements for his family on short notice and there is no guarantee he would be able to return to them if he came to New Zealand to give evidence.
[4] The Commissioner’s response was:
(a) It is necessary that Mr Vincent be cross-examined when he is physically in the courtroom. The submission was put as follows:
Mr Vincent is the primary witness in this case. His credibility will be crucial to the Court’s decision-making. The Commissioner is required to satisfy the Court to the balance of probabilities that Mr Vincent was involved in importing and selling illegal drugs, or profited from his associate selling illegal drugs. He claims that his business was legitimate. Mr Vincent’s credibility ought to be assessed in person, in the courtroom. [The] importance of this factor was recently recognised by this Court in Erceg v Erceg.1
(b)The fact that Mr Vincent has instructed counsel and an expert witness in this proceeding indicates that he has financial resources and could travel to New Zealand.
(c) The application should be declined in the interests of justice. It is submitted that there are grounds for charges to be laid against Mr Vincent. This is said to arise out of two police operations known as Operations Ark and Greenstone, with the former leading to conviction of a number of defendants in respect of activities Mr Vincent was involved in from Thailand. (Trial of charges arising out of the Greenstone Operation is pending). It was submitted:
In the circumstances of a civil forfeiture proceeding, where the respondent seeks to deny any underlying criminal activity but refuses to return to the jurisdiction to do so, the interests of justice in following the usual rule that evidence will be given orally outweigh the interests of the respondent in continuing to evade justice.
An observation of Lord Nicholls in the House of Lords in Polanski v Condé Nast Publications Ltd was cited, and I will come to that decision.2
[5] The notice of opposition by the Commissioner was contained in a memorandum filed in opposition to the application, with submission. Leave was granted to Mr Vincent to file submissions in response. I mention that procedural background because of an issue raised for Mr Vincent in the submissions as to whether there are current charges in New Zealand against Mr Vincent. There was an earlier application by Mr Vincent to adjourn a hearing scheduled for next week to
determine the forfeiture applications. A notice of opposition by the Commissioner to
1 Erceg v Erceg [Evidence] [2014] NZHC 2601, (2014) 22 PRNZ 245.
that application recorded that “neither of the respondents are charged with any criminal offending and consequently they do not face trials in the criminal jurisdiction.” Mr Vincent’s solicitors obtained advice from the Ministry of Justice, enclosed in an email, that there is a warrant for Mr Vincent’s arrest. There may be some confusion on Mr Vincent’s part between a warrant for arrest and the laying of charges. It is unnecessary to go into the detail. There clearly is a warrant for Mr Vincent’s arrest and it is clear from the Commissioner’s submissions in opposition to the AVL application that the warrant will be executed if Mr Vincent returns to New Zealand. It is also made sufficiently clear by the opposition to the AVL application that Mr Vincent, following his arrest, will be charged with offences against the Misuse of Drugs Act. For the purpose of this application, I do not have to reach any conclusion as to whether the Commissioner’s statement in the notice of opposition to the adjournment application was misleading in the circumstances, and it would be inappropriate to do so without a proper hearing. For the present application it is unnecessary to take the matter any further, because the jeopardy Mr Vincent faces is quite clear.
[6] The principal reasons for my granting Mr Vincent’s AVL application were as follows:
(a) As a matter of principle, the general rule is that the unwillingness of a party to proceedings, or a witness, to come to New Zealand because that person will be or may be arrested for a criminal offence, is a valid reason, and can be a sufficient reason, for making an AVL order: Polanski v Condé Nast Publications Ltd 3
(b)The Commissioner’s reasons for wanting to cross-examine Mr Vincent directly in a courtroom is insufficient to outweigh that principle, as explained in Polanski, when applied to Mr Vincent’s
circumstances.
3 Polanski v Condé Nast Publications Ltd, above n 2 at [33] per Lord Nicholls, at [65] per Lord
Hope, at [69] per Baroness Hale.
(c) An added consideration in support of the AVL application is that, if Mr Vincent returns to New Zealand, it is almost certain that, at least for a reasonable period of time, he will be unable to return to his wife and child in Thailand.
[7] It will be apparent from that summary that I am satisfied that the principle stated by the majority in Polanski should be followed in New Zealand. In Erceg v Erceg, Venning J was of the same opinion.4 The reasons of the majority in Polanski for the conclusion of principle, which states a general rule, apply with full force in New Zealand. It may be noted that Lord Slynn and Lord Carswell, who dissented, did not do so on the basis that an AVL application should be refused if the reason for the application is to avoid arrest. As Lord Carswell put it, the difference related to the “application of the opposing principles and the weight which should be given to each in a case such as the present.”5
[8] The submissions for Mr Vincent focussed first on the reasonably straightforward aspects of the application: the Commissioner’s application is a civil proceeding, and notwithstanding the need for the Commissioner to prove that there has been “significant criminal activity”; Mr Vincent is a respondent in this civil proceeding; the general practice is that the parties who wish to adduce evidence do so by affidavit, but there is provision for cross-examination; the Commissioner has given notice that he wishes to cross-examine Mr Vincent; Mr Vincent lives in Thailand; there are statutory provisions enabling the cross-examination of Mr Vincent to be conducted by AVL and that is Mr Vincent’s preference; his physical presence in the courtroom is unnecessary. A further point was made that Mr Vincent, as a respondent, is not bound to give evidence and may elect not to do so. That election cannot be made, and could not be required, until all of the evidence for the Commissioner is before the Court and that will include cross-examination of some witnesses. Mr Vincent cannot be obliged to give evidence, but his proposed evidence in chief is already in an affidavit. The only effective way of exercising an
election not to give evidence is not to be available for cross-examination.
4 Erceg v Erceg, above n 1 at [22]-[23].
[9] Section 5 of the Courts (Remote Participation) Act 2010 prescribes matters to be taken into account when considering whether to allow the use of AVL. It is as follows:
5 General criteria for allowing use of audio-visual links
A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:
(a) the nature of the proceeding:
(b) the availability and quality of the technology that is to be used: (c) the potential impact of the use of the technology on the
effective maintenance of the rights of other parties to the proceeding, including—
(i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and
(ii) the level of contact with other participants: (d) any other relevant matters.
[10] Counsel did not refer to the provisions in the Evidence Act 2006 dealing with alternative ways of giving evidence, contained in ss 103 to 106 of that Act. Section
102A of the Evidence Act provides that nothing in the Courts (Remote Participation) Act affects or limits the ability of a party to apply under s 103 of the Evidence Act for evidence to be given in an alternative way, or a Judge to make directions under s 103.
[11] The Commissioner submitted that s 5(c)(i) of the Court (Remote Participation) Act, directed to the assessment of credibility of witnesses, is important in this case. It was further submitted that it is “the usual rule that evidence will be given orally.”
[12] I accept that Mr Vincent’s credibility will be in issue. I do not consider that Mr Vincent’s physical presence in the courtroom is essential. The Commissioner did not contend that his physical presence is essential, but simply that “credibility ought to be assessed… in person, in the courtroom.” This is not an occasion for an exposition on the appropriate and inappropriate ways of assessing credibility, but it
can be said that in general terms, and certainly in relation to a civil proceeding, that physical presence is unlikely to make much difference. This matter was noted by Lord Nicholls in the Polanski case, when he said:6
… Improvements in technology enable Mr Polanski’s evidence to be tested as adequately if given by VCF as it could be if given in court. Eady J, an experienced judge, said that cross-examination takes place “as naturally and freely as when a witness is present in the court room.” Thomas LJ … said that in his recent experience as a trial judge, giving evidence by VCF is a “readily acceptable alternative” to giving evidence in person and an “entirely satisfactory means of giving evidence” if there is sufficient reason for departing from the normal rule that witnesses give evidence in person before the court:
Those observations apply in New Zealand.
[13] The Commissioner submitted that the “usual rule” is that evidence is given orally by the witness in the courtroom. As a matter of general practice, that is what usually happens, although evidence in chief is often provided in writing. But there is no rule to that effect. The legal position is in fact quite different.
[14] Section 83 of the Evidence Act refers to evidence given orally in a courtroom as “the ordinary way of giving evidence”. The quoted words are simply shorthand; they do not express a rule. Section 103(1) of the Evidence Act makes clear that it is for the Judge to determine how evidence is to be given; the Judge has a broad discretion. Importantly, there is no presumption in favour of giving evidence in the ordinary way. Section 103 was discussed by the Court of Appeal in R v O as
follows:7
[37] Section 103 allows a broad fact-specific inquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no default position or presumption in favour of giving evidence in the ordinary way.8
6 Polanski v Condé Nast Publications Ltd, above n 2 at [14].
7 R v O [2012] NZCA 475.
8 V (CA492/2010) v R [2011] NZCA 525 at [21], citing R v Shone [2008] NZCA 313 at [28].
[15] Were it not for the fact that one of the reasons Mr Vincent gives for not coming to New Zealand is that he will be arrested, the decision would be quite straightforward. On that basis I would be satisfied that there are good grounds to exercise the Court’s discretion in favour of granting the application. Putting it the other way, there would be no good grounds for refusing the application. The only countervailing consideration in this context is the cross-examination point, and I am not persuaded by it.
[16] That brings the discussion back to the point of principle.
[17] In Erceg, Venning J applied the Polanski principle to a witness The witness wished to provide evidence by AVL because, if he returned to New Zealand, there was a real risk that he would be arrested. It appears that, if the AVL application was not granted, the witness was not going to come to New Zealand. The consequence then would be prejudice to the plaintiff who wished to adduce his evidence. The circumstances are, therefore, somewhat different from the present case because of the added factor of prejudice to another party, there the plaintiff. But, of course, that factor does not mean that the Polanski principle cannot apply in this case.
[18] In the Polanski case the plaintiff, Mr Polanski, had issued defamation proceedings against a publisher in the United Kingdom. He applied to give his evidence by AVL from France. The reason for the application was that, if he went to England to give evidence, there was a risk of arrest and extradition to the United States to be sentenced on a criminal charge to which he had pleaded guilty in California 28 years before. Mr Polanski, after pleading guilty in California, had fled the United States before sentence was passed. He could properly be described as a fugitive from justice.
[19] Lord Nicholls, in setting out his reasons said that “a fugitive from justice is not as such precluded from enforcing his rights through the courts of this country.” He continued:9
26 At first sight this may seem unattractive. It may seem unattractive that a person can, at one and the same time, evade justice in respect of his
criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained “on the run” from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness has no place in our law. Mr Polanski is not a present-day outlaw. Our law knows no principle of fugitive disentitlement.
[20] Lord Hope said:10
65 This brings me to what I see as the critical factor. It is the factor that leaves me in no doubt that the general rule should be that the fugitive’s unwillingness to come to this country is not in itself a reason for refusing to allow his evidence to be given through a video conference link. This is that the granting or refusing of the order will have no effect whatever on the claimant’s continued status as a fugitive. The granting of the order will not help him to escape from the normal processes of the law, nor will declining to grant the order do anything to assist them. This is because he is already beyond the reach of those processes. So long as the claimant remains where he is, and irrespective of whether or not the order is made, those processes will be incapable of reaching him if he is a member of that class of fugitives that cannot be extradited.
[21] In this case, the Commissioner did advance the proposition that an assessment of credibility would be assisted by Mr Vincent’s physical presence in the courtroom. But he gave particular emphasis to submissions to the essential effect that the interests of justice would not be met if Mr Vincent was permitted to provide evidence by AVL because he did not want to be arrested in this country, and when he should be arrested because of his involvement in criminal activity. It was submitted that this case differs from the Polanski case for the following reasons:
[In] this case Mr Vincent seeks to retain the benefit of what the Commissioner says is the profit of criminal activity. He has avoided standing trial for that criminal activity, though his associates have done so and been convicted for it. In this case it would “bring the administration of justice into disrepute” and “affront the public conscience” not to require him to defend his stance . …
[It] would affront the public conscience to grant Mr Vincent’s application and allow him to defend the Commissioner’s application based upon his significant criminal activity while remaining immune from prosecution for that significant criminal activity.
[22] Those submissions, to the extent that they are directed to broad points of principle or policy, are answered by the reasons of the majority in Polanski, some of which I have already recorded.
[23] On matters of fact, parts of the submission are not correct. Generally, in relation to relevant matters of fact, there are points of distinction between the circumstances in the Polanski case and Mr Vincent’s circumstances which suggest that the grounds for Mr Vincent’s application are somewhat stronger. Mr Vincent’s circumstances, relevant to the application of the Polanski principle, are the remaining reason for my granting the application. This aspect is conveniently dealt with by comparing relevant circumstances in the Polanski case and in this case. I will do this in a summary way:
(a) Mr Polanski was undoubtedly a fugitive from justice. He fled to France after pleading guilty. There is no evidence before me that Mr Vincent fled New Zealand to avoid arrest. The arrests on termination of the police Operation Ark occurred in November 2011. Mr Vincent’s affidavit in this proceeding states that he has not lived in New Zealand since 2006 and has been in Thailand since 2007. I apprehend that the submission for Mr Vincent that he has resided permanently in Thailand since 8 April 2010 means that he has had permanent residence status since then.
(b)Mr Polanski was the plaintiff; he initiated the proceeding in his own interests. Mr Vincent is the respondent to a claim brought against him.
(c) The other party in the Polanski case, Condé Nast Publications Ltd, had no involvement, direct or indirect, in the United States criminal proceedings against Mr Polanski. Although this is a civil proceeding, it would be disingenuous to suggest that the applicant in this case, the Commissioner of Police, has no interest in securing Mr Vincent’s arrest. I do not refer to this point by way of criticism. It is a point made because it is a point of significant difference between this case and the Polanski case.
(d)That last point flows into the next. The principle in the Polanski case, applied to the plaintiff, was that he was entitled to bring the proceeding even though he was a fugitive from justice. In my judgment Mr Vincent’s position as a defendant is just as strong; it is an entitlement to defend a proceeding brought against him without jeopardy to his freedom.
(e) In the Polanski case, the plaintiff faced a risk of arrest and, if that occurred, a risk of extradition. Here, on the basis of the evidence available to me, there is the certainty of arrest and, I apprehend, the certainty of charges being laid followed by a trial. Without intending to convey any view on the merit of charges against Mr Vincent, if they were to be laid and brought to trial, it is relevant to record that most of the defendants brought to trial following termination of Operation Ark were convicted and sentenced to terms of imprisonment.
[24] The remaining consideration leading to my decision, is the consequences for Mr Vincent’s wife and child if he comes to New Zealand. Whatever might be the outcome of a prosecution of Mr Vincent it does seem likely, and perhaps fairly certain, that his wife and child will be separated from him for a reasonable period of time.
[25] The decision to grant Mr Vincent’s AVL application was for the reasons discussed to this point. It is nevertheless appropriate to note that the submissions in reply for Mr Vincent challenged the submission for the Commissioner to the essential effect that Mr Vincent obviously could afford to travel to New Zealand because he has instructed counsel and engaged a scientific expert. The heart of the submission for Mr Vincent was as follows:
Mr Vincent has not paid legal fees for two years. Both counsel for the Commissioner and the Court have previously been advised of this, most recently at the hearing of the respondents’ application for an adjournment before Heath J on 14 May 2015. At this stage Dr Ardrey’s costs have not been met by Mr Vincent.
[26] It is not possible, and it is not necessary, to make any determination on the facts. I accept the submission for Mr Vincent that it was difficult to provide affidavit evidence because of the time constraints. It would not be possible to reach any firm conclusion on the point and it is unnecessary because my decision to grant the application would be no different even if it were established that Mr Vincent can afford to travel to New Zealand.
Result
[27] There is an order that any cross-examination of Mr Vincent is to be conducted by audio visual link. This is subject to conditions noted in the following paragraphs.
[28] Mr Vincent has indicated that he wishes to reserve his right to elect not to give evidence. As discussed earlier in this judgment he would seek to do that by not making himself available for cross-examination on his affidavit, with the usual result then being that his affidavit would not be read as part of the evidence. The treatment of the affidavit, in those circumstances, will, in the first instance be a matter on which the Commissioner may wish to make submissions. There have also been indications that the respondents may elect by the same means that the evidence in chief of the expert witness for Mr Vincent, Dr Ardrey, not be adduced.
[29] I do not refer to these matters in order to express any view on the general rights of either party, but because of the impact this may have on the availability of Mr Vincent or Dr Ardrey to give evidence by AVL if Mr Vincent’s decision is that he wants to rely on one or both of the affidavits. Given the arrangements that need to be put in place in advance for AVL, it will be necessary that firm dates and times are arranged. This may mean that the respondents will be required to make an election before all of the cross-examination of evidence for the Commissioner has been completed. The order granting Mr Vincent’s AVL application, and the order earlier made for Dr Ardrey’s cross-examination (and any re-examination) to be by AVL, are therefore subject to a condition to that effect.
[30] There are now orders for the evidence for the cross-examination of three witnesses to be by AVL – Detective Sergeant Bruce Howard, Dr Ardrey and Mr
Vincent. I direct counsel to confer to discuss practical arrangements to be put in place for the dates and times on which these witnesses are to be available, and all other necessary practical matters to seek to ensure that the evidence can be given in an appropriate sequence and without undue disruption to the completion of the hearing. Protocols for giving evidence by AVL, along the lines of the protocol in the
Erceg case, are required.11 Counsel are also to address the other matters referred to
in Erceg at [29].
[31] Assuming agreement can be reached on all relevant matters, a joint memorandum recording what is proposed is to be filed by 11 September 2015 (being the final date in the general timetable recorded in the minute of 2 July 2015). Obviously if there are any matters that cannot be agreed separate memoranda are to
be filed by the same date.
Woodhouse J
Solicitors:
Crown Solicitor, Auckland
Rainey Law, Auckland
11 Erceg v Erceg, above n 1 at [29] and the annexure to the judgment.