Commissioner of Police v Vincent

[2015] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-56 [2015] NZHC 1024

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

LEE VINCENT First Respondent

DIANE ERLENE ASHBY Second Respondent

Hearing:	14 May 2015
Counsel:	T J Rainey and S T Ellis for Mr Vincent and Ms Ashby T Refroy-Butler for Commissioner of Police
Judgment:	14 May 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Rainley Law, Auckland

Meredith Connell, Auckland

COMMISSIONER OF POLICE v VINCENT [2015] NZHC 1024 [14 May 2015]

[1]      Mr Vincent and Ms Ashby seek an adjournment of a hearing of proceedings brought  under  the  Criminal  Proceeds  (Recovery)  Act  2009  (the  Act).     The proceeding is set down for hearing in this Court for four days, commencing on 6 July

2015. The proceeding, in broad terms, seeks two types of orders. The first is a profit forfeiture order.1  The second is an asset forfeiture order.2

[2]      Obtaining the former is dependent on proof that Mr Vincent and/or Ms Ashby “unlawfully benefited from significant criminal activity”.3    For that to be proved it must be established on a balance of probabilities that the relevant person has “knowingly” derived a benefit from that activity, whether directly or indirectly.4

[3]      The asset forfeiture order will be granted if the Court is satisfied on a balance of probabilities that specific property is “tainted property”, as defined.5     In such circumstances, the Court “must make an asset forfeiture order in respect of that specific property”.6    There is no separate element of knowledge.  The definition of the term “tainted property” is itself dependent upon the existence of “significant criminal activity”7  from which property has been acquired or directly or indirectly derived.

[4]      The  primary  reason  for  the  adjournment  application  is  the  existence  of appeals  from  convictions  in  criminal  proceedings  arising  out  of  Operation Ark. There is a challenge to directions given by Woodhouse J on the mens rea element of the charges of importation and dealing in a Class C controlled drug.8

[5]      There is no dispute that substances known as “party pills” were brought into New Zealand sold.  The appellate question is whether the defendants in the criminal prosecution (which did not involve Mr Vincent or Ms Ashby) had knowledge of the

fact that the product was a Class C controlled drug, through the analogue provisions

1      Criminal Proceeds (Recovery) Act 2009, s 55.

2      Ibid, s 50.

3      Ibid, s 55(1)(a).

4      Ibid, s 7, definition of “unlawfully benefitted from significant criminal offending”.

5      Ibid, s 5(1), definition of “tainted property”.

6      Ibid, s 50.

7      Ibid, s 6, definition of “significant criminal activity”.

8      The appeal is being brought by Case Stated and the issues are set out fully in the Case.

of the Misuse of Drugs Act 1975, and intended to import or deal with them on that basis.9   No date for the appeal has yet been fixed to the best knowledge of counsel.

[6]      The  Commissioner  of  Police  intends  to  rely  on  convictions  of  various defendants in the Operation Ark prosecutions to establish the “significant criminal activity” in issue.  Mr Rainey, for Mr Vincent and Ms Ashby, is concerned about the possibility that the Court of Appeal make take a different view and hold either that the drugs were not Class C controlled drugs, or that the convicted defendants did not have the requisite intent to deal with the products on that basis.

[7]      As  a result  of discussions  with  counsel,  it  emerged  that  there  were  two separate issues  for determination.   The first  concerns the question  whether  any property was acquired or derived from “significant criminal activity”, so as to give rise to the need for an asset forfeiture order.  The way in which the Commissioner wishes to run his case means that the existence or otherwise of such activity will be determined by the decision of the Court of Appeal.

[8]      However, in relation to the profit forfeiture application it will be necessary to address the factual question whether Mr Vincent and/or Ms Ashby had knowledge that the activities from which they were deriving property was from the importation and sale of a Class C controlled drug, as opposed to some legitimate importation and sale of “party pills”.  That issue will fall to be determined independently of the Court of Appeal judgment.  The requisite knowledge is to be assessed by reference to the time of receipt of property, as opposed to the criminal proceedings in which knowledge of each convicted defendant turned on the coincidence of a guilty mind with the importation and sale and knowledge that the products were controlled drugs.

[9]      It seems to me that the fact that there is an appeal pending on the mens rea element does not prohibit a Court from determining whether Mr Vincent and/or Ms Ashby had the requisite knowledge for the purpose of the profit forfeiture order.

There is no reason why that aspect of the case cannot proceed to trial in July.

9      For background, see R v Chase [2014] NZHC 3144 (Woodhouse J).

[10]     However, the second aspect which is applicable to both the profit and asset forfeiture  applications  concerns  whether  there  has  been  “significant  criminal activity”.  That will be determined one way or the other by the Court of Appeal’s decision.  It seems to me that a Judge could await the outcome of that decision, after (perhaps)  issuing  an  interim  judgment  on  the  knowledge  aspect  of  the  profit forfeiture  application  or  reserving  generally,  pending  decision  of  the  Court  of Appeal.   That would have the benefit of having all relevant evidence before the Court  dealt  with  so  that  once  the  Court  of Appeal  decision  was  available  the proceeding could be resolved.  An alternative is for the Judge to deal with all issues, but (if the Commissioner were successful) to issue a stay pending the Court of Appeal decision.

[11]     To  what  extent  the  Judge  who  presides  over  the  proceeding  decides  to proceed in terms of these indications will be for him or her to determine.  But, the existence of these options mean, in my view, that an adjournment of the current hearing is unnecessary.

Result

[12]     The application for an adjournment is dismissed.

[13]     On  30  April  2015,  when  I  initially  dealt  with  the  application  for  an adjournment  that  had  been  filed,  I  made  a  series  of  adjustments  to  existing timetabling directions on the basis that the adjournment application would be determined prior to the need for written witness statements to be filed and served. Counsel are agreed that those directions shall remain in force.10   I therefore confirm those directions:

(a)       The  Commissioner  shall  file  and  serve  witness  statements  on  or before 20 May 2015.

(b)Mr Vincent and Ms Ashby shall file and serve witness statements on or before 10 June 2015.

10     Commissioner of Police v Vincent and Ashby HC Auckland CIV-2014-404-56, 30 April 2015, at paras [5] and [6].

(c)      The Commissioner shall file and serve any witness statements that are strictly in reply on or before 25 June 2015.

(d)Counsel shall confer and file a common bundle of all documents to which the presiding Judge will need to refer at the hearing of the proceeding.  That should be done no later than two working days prior to the first day allocated for the substantive hearing.

[14]     Leave  is  reserved  generally  for  any  of  the  parties  to  apply  for  further directions should that be necessary.  Any such application shall be referred to the Civil List Judge or, if a trial Judge has been identified, to that Judge.

[15]     All questions of costs are reserved.

P R Heath J