Commissioner of Police v Weir

[2017] NZHC 1116

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-419 [2017] NZHC 1116

IN THE MATTER

of an application pursuant to sections 21,

24, 25 and 33 of the Criminal Proceeds
(Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

BLAINE ROGER WEIR Respondent

KAREN ALEXANDER DAVIE Second Respondent

AND

HARLAN RHETT SMART Interested Party

…/cont

Hearing:	17 May 2017
Appearances:	M Dillon for the Applicant P Kaye for the First Respondent No appearance by or for the Second Respondent or Interested Parties
Judgment:	26 May 2017

JUDGMENT OF GORDON J

This judgment was delivered by me

on 26 May 2017 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:           Crown Solicitor, Hamilton

Jennifer G Connell & Associates, Auckland

Counsel:            Peter Kaye, Auckland

COMMISSIONER OF POLICE v WEIR [2017] NZHC 1116 [26 May 2017]

VALESHA ANNA MARX Interested Party

SWEENEY JOAN BOWERING Interested Party

BRETT RAYMOND TAYLOR Interested Party

Introduction

[1]      On 1 March 2017, the High Court granted a restraining order in respect of cash totalling $78,410.00 and five vehicles.  The first respondent, Mr Weir, initially opposed the making of the order1  but then withdrew his opposition.   The second respondent and interested parties either took no steps or, in the case of Ms Marx, withdrew her opposition. The order was therefore made unopposed.

[2]      The Commissioner also sought an order for the immediate sale of the motor vehicles in order to preserve their value.   In his Notice of Opposition, Mr Weir opposed the sale of all five vehicles on the basis that he:

… places considerable personal value in the motor vehicles concerned and does not want them disposed of.  He is prepared to look after them himself subject to the restraining orders and make sure they are preserved in their current condition.

[3]      That position changed in an affidavit sworn 23 March 2017.  Mr Weir still opposed the sale of all five vehicles but, in summary, he deposed that he was not the owner of four of the five vehicles.   He accepted that he was the owner of the Mitsubishi Lancer registration JBG956.

[4]      In a further change of position, Mr Kayes’ submissions for Mr Weir dated

10 May 2017 stated that because Mr Weir had no interest in four of the vehicles, he had no standing to oppose the orders for sale, and the order could be made for those vehicles.  Mr Weir maintained his opposition to the sale of the Lancer.  The same position was adopted at the hearing.

[5]      The disputed matter of the immediate sale order has now come before me for determination.

[6]      Also before the Court is an application brought by Mr Weir under ss 28 and

34 of the Criminal Proceeds (Recovery) Act 2009 (the CPRA).  Mr Weir would like a condition to be added to the restraining order, namely, that the Lancer be released to  him  for  his  use,  subject  to  certain  conditions.    The  Commissioner  opposes Mr Weir’s application.

[7]      The two applications are intertwined to some extent.  If I am persuaded that the  Lancer  should  be  released  to  Mr Weir  for  his  personal  use,  subject  to  the conditions set out in his application, then it follows that the Commissioner’s application will fail in respect of that vehicle.

Application to vary restraining order

[8]      Section  33  of  the  CPRA provides  that  a  person  who  has  an  interest  in restrained property may apply to the Court for a further order in respect of that property.    A further  order  may  be  made  at  any  time  before  the  expiry  of  the restraining order.2

[9]      Mr Weir has filed an application seeking orders that the existing restraining orders be subject to a condition that the Lancer be released for his use, subject to two provisos: first, that Mr Weir is to maintain the Lancer at all times in a roadworthy state and will take no steps whatsoever that will reduce its value; and second, that Mr Weir is to surrender the vehicle when further ordered by the High Court.

[10]     The grounds put forward by Mr Weir in support of his application are that he requires a vehicle to meet his personal and future work commitments.  In an affidavit dated 1 March 2017,  Mr Weir deposes:

3.24This [the Lancer] is the only motor vehicle that I own and I need it at the present time as my day to day transport and also to enable me, once I have recovered my medical condition, to obtain employment.

3.25I do lease a vehicle at the present time but I cannot afford these payments for much longer and require the Mitsubishi to be released to me for these purposes.

[11]     In a further affidavit dated 12 May 2017, Mr Weir describes his reasons for desiring the use of the Lancer in more detail.  Mr Weir lives in a rural area.  The nearest township is Te Awamutu, which is approximately 25 minutes drive away. Mr Weir says that he needs to visit Te Awamutu on a daily basis for matters such as groceries and to pay his accounts.  Mr Weir also needs to travel to Waikato Hospital on a regular basis to receive treatment for a serious leg injury suffered in a motor vehicle accident in December 2015.  Mr Weir is presently unemployed, but says that he hopes to gain employment once his leg has healed, at which point he will require a car to get to and from work.

[12]     The  grounds  on  which  the  Commissioner  opposes  the  variation  are  as follows:3

3.1      Mr Weir presently has a vehicle available to him.

3.2      Mr  Weir’s  claimed  possible  future  need  for  the  vehicle  is  not

credible.

3.3There  are  reasonable  grounds  to  believe  the  vehicle  is  tainted property and that was the basis for restraint.

3.4In all the circumstances, the Court cannot have confidence that the vehicle would remain available to be forfeited if Mr Weir took possession of it.

3.5      The vehicle is depreciating in value.

[13]     The Commissioner argues that Mr Weir has managed to provide transport for himself until the present time and there is no credible reason to believe that arrangement will change in the near future.   The Commissioner further notes that Mr Weir does not assert any particular personal or sentimental attachment to the vehicle.  His sole contention is that he may need it for transport at some point in the future.

[14]     Mr Kaye, who appeared on behalf of Mr Weir, helpfully identified a number of cases in which the High Court has varied the conditions of a restraining order to

require certain property to be released to an applicant.   In The Commissioner, the New Zealand Police v Wild, the applicants sought orders releasing a restrained motor vehicle into their possession.4   The applicants’ family already had the use of one car. The Court granted the application, noting particularly that the applicants had a young family and lived in a rural location.   Both the applicants were employed.   Under those circumstances, the Court concluded that the availability of two vehicles ought to be viewed as a necessity.5    Similarly, in The Commissioner of Police v Burgess, the applicants successfully sought orders releasing a tractor and loader into their possession for use in their farming business.6    I note however that in that case, the parties were able to come to agreement regarding the variation to the restraining orders.

[15]     I agree with Mr Kaye that there are essentially two issues for the Court to decide, namely:

(a)       Does Mr Weir need the vehicle now; and

(b)If the vehicle were to be released, could the Court be assured that it would be secure?

Does Mr Weir need the vehicle?

[16]     On its face, the evidence in Mr Weir’s affidavits provides support for his application.   However, when that evidence was tested under cross-examination, a different picture emerged.  I did not find Mr Weir to be a credible witness.

[17]     In his two affidavits, Mr Weir makes conflicting claims regarding his present transport arrangements.  At para 3.25 of his 1 March 2017 affidavit (set out in [10] above), Mr Weir says that he has been leasing a vehicle. However, in his affidavit of

12 May 2017 Mr Weir states that he has borrowed a vehicle from a friend of his, Brian Cunningham.  Mr Weir says that he has had this vehicle for about eight weeks,

but that this cannot continue any longer.   It is clear from the later affidavit that

4      The Commissioner, the New Zealand Police v Wild [2013] NZHC 3142.

5      At [17(a)].

6      The Commissioner of Police v Burgess HC Auckland CIV-2010-404-2893, 15 November 2010.

Mr Weir must have had Mr Cunningham’s vehicle at the time he made his first

affidavit.

[18]     When  asked  about  that  apparent  contradiction  under  cross-examination, Mr Weir said that the use of Mr Cunningham’s vehicle was not guaranteed.   He could just borrow it “when Brian was not using it.”  He said that he leased a vehicle for about a week when Brian’s car was unavailable.  In reality, however, his mother leased the car and paid for it.  Mr Weir claimed he would have to pay his mother back.  How he will do that is not apparent.

[19]     Mr Weir agreed that Mr Cunningham had been a friend of his for about

10 years and that they had each loaned vehicles to the other from time to time.  He said he and Mr Cunningham were not as close as they used to be and he thought Mr Cunningham was lending him the vehicle out of sympathy.   However, he said Mr Cunningham was still his friend and that they looked after each other.  It appears that Mr Cunningham has another car available to him and there was no evidence from Mr Cunningham himself that the loan arrangement could not continue.  I am not satisfied on Mr Weir’s evidence that Mr Cunningham’s vehicle will not continue to be available to him.

[20]     In any event, Mr Weir lives with his girlfriend, who has a job.  She does not have a car but gets picked up by workmates.  Mr Weir did not give any reason why his girlfriend could not buy groceries on the way to or from work.  Further, he said that his mother, who lives in Cambridge which he said was about a 30 minute drive from his place, would drive him around if he was stuck.  He said she does this from time to time.

[21]     Another point which emerged in cross-examination was that Mr Weir had been disqualified from driving for six months up until 15 May 2017.  He said that in order  to  get  to  and  from  the  hospital,  either  his  girlfriend,  his  mother  or Mr Cunningham  would  drive  him  there.    There  is  no  credible  evidence  which demonstrates that arrangement cannot continue.  Mr Weir said that now he has his driver’s licence back he wants his independence back.  However, a desire to regain

independence  is  not  a  sufficient  reason  to  release  the  restrained  Lancer  into

Mr Weir’s possession.

[22]     As to his other reasons for needing a vehicle, Mr Weir said that his hospital visits  are  hopefully  almost  over  but  he  would  still  need  to  attend  physio appointments.  Mr Weir also gave evidence that he needs a vehicle to enable him to obtain employment once he has recovered from his medical condition.  However that evidence is not credible.  He has not had a job since 2008 or 2009.  He claims he made money by “punting” on horses.  There was no evidence from Mr Weir that he had made a concerted effort, let alone any effort, towards gaining employment.  He referred to a couple of quarries near where he was living at the moment and said “I could probably maybe get work there”.  Having regard to the fact that Mr Weir has not had a job since 2008 or 2009, I do not accept that he intends looking for work.

[23]     Mr Weir has not demonstrated that he has a need for the Mitsubishi Lancer to be returned to him, either for basic needs such as grocery shopping or for attending medical appointments or to obtain employment.   While the situation of borrowed vehicles may not be ideal for Mr Weir, he has not demonstrated that the present situation involving his mother and girlfriend and the use of Brian Cunningham’s car cannot continue.

[24]     In relation to the second issue, I am not satisfied that if the vehicle were released it would remain available to be forfeited.  Mr Weir agreed that over the last three years there had been an attempt to break into a motor vehicle at a place where he was living, that he had watches stolen from another vehicle that he owned and that a Ducati, which he claimed did not belong to him, was stolen from an address where he was living.  He also said he had had personal items stolen from his current address and from another address.  Mr Weir’s evidence also was that he owed around

$100,000 to various people.  I am not satisfied that the vehicle would be safe from those to whom Mr Weir currently owes money.

[25]     Further,  Mr  Weir  has  a  conviction  for  driving  at  a  dangerous  speed  on

20 January 2011.  He also has 44 previous speeding infringements.

[26]     At the time of the car accident on 18 December 2015 which has caused his current  medical  problems,  Mr  Weir  was  driving  with  methamphetamine  in  his system.

[27]     I also accept the Crown’s submission that Mr Weir does not have the means to insure the car, to keep it in good condition or pay the running costs.  He said he has never had insurance on a vehicle but insisted that he would insure the Mitsubishi if it were released to him. His evidence on this point simply is not credible.

[28]     Nor did Mr Weir satisfy me that he would be able to afford to pay the running costs of the vehicle.  He said that at the time the car was seized there was a problem with the clutch.  He said he had ordered a new clutch but did not get to pick it up before he was arrested.  When asked how he was going to pay for the insurance and the running costs for the Mitsubishi if it were returned to him, he said that he would find a way, he always did. This evidence was not convincing.

[29]     For  all  those  reasons  I  am  not  satisfied  that  the  vehicle  would  remain available to be forfeited if Mr Weir took possession of it.  I therefore decline to grant the variation sought by Mr Weir.

Application for further orders

[30]     That being the case, I consider that this is an appropriate case in which to make immediate sale orders in respect of the Lancer.   The immediate sale orders sought in respect of the remaining restrained motor vehicles are unopposed.

[31]     The evidence before the Court shows that the Lancer was manufactured in

2007 and was apparently purchased by Mr Weir on 28 April 2015.  At least, there is an invoice to that effect, recording a price of $26,850 including $350 of on-road costs.   There is no evidence of the current value of the Lancer.   Nor is there any evidence regarding the value of the other restrained vehicles.

[32]     However, there is High Court authority which affirms that cars, motor cycles and boats will generally be depreciating assets, particularly where the vehicle in question is of recent vintage and has no particular value in terms of speciality or

uniqueness.7    There is no evidence in the present case to suggest that any of the restrained motor vehicles have any speciality or uniqueness that might prevent them from the effects of depreciation.

[33]     Accordingly, I consider it is appropriate to make orders in the terms sought by the Commissioner in respect of the following property:

(a)       A Nissan GTR motor vehicle, registration GCE25; (b)           A Ford F150 motor vehicle, registration HSJ966;

(c)       A Nissan Skyline motor vehicle, registration FAH740; (d)     A Ducati motorcycle, registration A7SRD;

(e)       A Mitsubishi Lancer motor vehicle, registration JBG756.

[34]     In coming to that conclusion, I have not relied on Mr Weir’s submission that he lacks standing because he does not own the vehicles listed in (a) – (d) above.  Nor do I make any finding in relation to this aspect of his evidence.

Result

[35]     I direct that the property specified in [36] below, which is presently subject to a restraining order made on 1 March 2017, be sold by the Official Assignee at fair market value in order to preserve the value of that property.

[36]     The property in question is:

(a)       A Nissan Skyline motor vehicle, registration GCE25; (b)       A Ford F150 motor vehicle, registration HSJ966;

(c)       A Nissan Skyline motor vehicle, registration FAH740;

7      Commissioner of Police v Cavanagh [2014] NZHC 2978 at [9].

(d)      A Ducati motorcycle, registration A7SRD.

(e)       A Mitsubishi Lancer motor vehicle, registration JBG956.

Costs

[37]     There is no issue as to costs.

Gordon J