Commissioner of Police v Wilk
[2020] NZHC 2775
•27 October 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-820
[2020] NZHC 2775
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
RALPH ALAN WILK
First Respondent
RYSZARD WILK
Second RespondentPATRYK LUKASIK
Third RespondentSIMON KENMUIR
Fourth Respondent
BRYAN WILLIAMS
Fifth Respondent
Hearing: On the papers Counsel:
M R Harborow and R S Ching for Applicant A Ives for Ryszard Wilk
Judgment:
27 October 2020
Reissued:
6 November 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 27 October 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
COMMISSIONER OF POLICE v RALPH ALAN WILK [2020] NZHC 2775 [27 October 2020]
Introduction
[1] The Commissioner of Police and Ryszard Wilk (Mr Wilk Snr) seek the Court’s approval of an agreement reached, pursuant to s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).
Background facts
[2]The joint memorandum of counsel helpfully sets out the relevant background:
2.1These proceedings arose from an investigation by the National Organised Crime Group regarding alleged drug offending by Ralph Alan Wilk (Mr Wilk) and his father, Mr Wilk Snr. The investigation, which was conducted with the assistance of the New Zealand Customs Service (Customs), identified an international syndicate that had imported and distributed at least four kilograms of the class A controlled drug cocaine into New Zealand.
2.2Mr Wilk Snr and Mr Wilk are Polish nationals who travelled to New Zealand for the first time in September 2016. It is the Commissioner’s case that, during this trip, Mr Wilk Snr and Mr Wilk uplifted cocaine from a sailor aboard a vessel docked in Auckland Port and then on- supplied at least two kilograms of cocaine in New Zealand.
2.3Simon Kenmuir (Mr Kenmuir) and Patryk Lukasik (Mr Lukasik) arrived in New Zealand from Northern Ireland on 5 December 2016. Mr Wilk Snr picked the two men up from the Auckland International Airport and remained in their company for a large part of their stay in New Zealand.
2.4On 12 December 2016, Mr Kenmuir and Mr Lukasik were due to depart New Zealand on a flight bound for Narita, Japan. Both men were detained by Customs officers at the Auckland International Airport and their luggage was searched. A total of $35,000 cash was seized from Mr Kenmuir’s luggage, all in New Zealand Dollars. Mr Kenmuir and Mr Lukasik both told Customs officers that they had been instructed to travel to New Zealand and collect cash by people who they refused to name.
2.5Mr Lukasik and Mr Kenmuir departed New Zealand the following day, on 13 December 2016.
2.6Between November 2016 and July 2017, Mr Wilk Snr and Mr Wilk also attempted to carry large sums of cash out of New Zealand which were concealed in their luggage. Mr Wilk Snr and Mr Wilk exchanged and remitted out of New Zealand substantial sums of funds, believed to be the proceeds of cocaine sales, the total value of which exceeded NZD $836,000.
2.7Upon termination of the investigation, on 13 July 2017, Mr Wilk was arrested and charged with drug offences and money laundering. Mr
Wilk Snr was overseas, having most recently departed New Zealand on 17 April 2017. Mr Wilk was ultimately convicted of one representative charge of supplying cocaine and one representative charge of money laundering, for which he was sentenced to eight years and five months’ imprisonment.
2.8Pursuant to Interpol Red Notices, Mr Wilk Snr and Mr Lukasik were arrested in Venezuela and Germany, respectively. Mr Lukasik has was extradited to New Zealand and currently faces one charge of importing cocaine and four charges of money laundering.
2.9Mr Wilk Snr was extradited from Venezuela and arrived in New Zealand on 18 October 2019. He is currently facing charges of importing cocaine, supplying cocaine, conspiracy to import cocaine, conspiracy to import MDMA and possession of cocaine for supply. A jury trial for determination of the charges facing Mr Wilk Snr and Mr Lukasik is scheduled to commence on 19 April 2021.
2.10The current whereabouts of Mr Kenmuir are not known to Police. (footnotes omitted)
Proposed settlement
[3] On 2 May 2019, the Commissioner applied for restraining and civil forfeiture orders over various property associated with the respondents (“the Property”). On 10 December 2019, following Mr Wilk Snr’s extradition to New Zealand, Lang J made restraining orders over the Property. The Commissioner’s application also seeks assets forfeiture orders in respect of the Property and a profit forfeiture order against Mr Wilk Snr and his son, jointly and severally, to the sum of $1,219,705.
[4] The Commissioner and Mr Wilk Snr have now agreed to settle Mr Wilk Snr’s interests in the Property between themselves on the terms set out in the joint memorandum of counsel:
3.2The proposed settlement is on the following terms:
(a)assets forfeiture orders under s 50 of the Act be made by consent over the following funds:
(i) cash to the value of $35,000 seized by Customs from the luggage of Mr Kenmuir at the Auckland International Airport on 11 December 2016 and any accrued interest (Kenmuir Cash);
(ii) the following sums of cash (collectively the Wilk Snr Cash) seized by Customs from the luggage of Mr Wilk
Snr at the Auckland International Airport on 16 April 2017 and any accrued interest;
(A) $2,430 New Zealand Dollars; (B) €13,580 Euro;
(C)£20 Great British Pounds;
(D)$400 Australian Dollars; and
(E)$33,200 United States Dollars;
(b)zł1,430 Polish zloty (now converted to $481 NZD) seized by Customs from the luggage of Mr Wilk Snr at the Auckland International Airport on 16 April 2017 is to be released from restraint and deposited to a bank account nominated by Mr Wilk Snr;
(c)Mr Wilk Snr is to abandon all claims he may have, under the Act or otherwise, to any of the property to be forfeited or to any of the other restrained property;
(d)the Commissioner will not pursue his application for a profit forfeiture order against Mr Wilk Snr;
(e)the settlement is in full and final settlement of the proceedings;
(f)the settlement does not entail any admission of liability or wrongdoing by Mr Wilk Snr; and
(g)costs will lie where they fall.
3.3The approximate value of the funds to be forfeited is $108,000.
Statutory framework
[5] The approval by this Court of a proposed settlement is not a mere “rubber stamping exercise.”1 The threshold for approval is set out at s 95 of the Act:
(1)The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.
(2)A settlement does not bind the parties unless the High Court approves it.
(3)The High Court must approve the settlement if it is satisfied that it is consistent with—
1 Commissioner of Police v Know-All Group Ltd HC Auckland CIV-2010-404-403, 7 November 2011 at [11].
(a)the purposes of this Act; and
(b)the overall interests of justice.
Assessment
[6] For the reasons set out in the joint memorandum, I am satisfied that the proposal is consistent with the purposes of the Act and the overall interests of justice, namely:
(a)There will be a saving of time and cost if the proceeding can be resolved by consent, without the need for a substantive hearing.
(b)An agreed settlement will allow the parties to have certainty and control as to the outcome.
(c)The Commissioner considers he has a strong case to show that the Wilk Snr Cash and Kenmuir Cash are tainted, so as to be subject to assets forfeiture orders and that Mr Wilk Snr has unlawfully benefited from significant criminal activity, so as to support a profit forfeiture order against him. Accordingly, it is appropriate that all of Mr Wilk Snr's restrained property, save for the ztl,430 Polish zloty (now converted to
$481NZD), will be forfeited.
(d)Intercepted communications indicate that the only reason for the Wilks' trips to New Zealand was to supply cocaine and collect and then remit the sale proceeds out of New Zealand. The fact that the Wilk Snr Cash and Kenmuir Cash were not declared, but were concealed in the respondents' luggage, is a further indication of criminality.
(e)As Police do not know the whereabouts of Mr Kenmuir, he cannot engage in this proceeding. However, there is strong evidence that the Kenmuir Cash was provided to Mr Kenmuir by Mr Wilk Snr. Much of Mr Kenmuir's time in New Zealand was spent with Mr Wilk Snr. On 12 December 2016, when Customs seized the Kenmuir Cash and
questioned Mr Kenmuir, he stated he had been given the cash in Auckland and was carrying it on behalf of other people.
(f)Regarding a profit forfeiture order, the Commissioner acknowledges the practical difficulties of pursuing a civil debt under ss 55(4) and 83(4) of the Act. Namely, that Mr Wilk Snr does not have any assets, bank accounts or income in New Zealand to satisfy any residual debt he would owe to the Crown.
(g)For his part, Mr Wilk Snr acknowledges the strength of the Commissioner's case and has been advised that the Act is applied robustly to drug profits.
[7]Given the foregoing, I make the following orders:
(a)Assets forfeiture orders under s 50(1) of the Act: the following property vests in the Crown absolutely and is in the Official Assignee's custody and control:
(i) cash to the value of $35,000 seized by the New Zealand Customs Service (Customs) from the luggage of Simon Kenmuir at the Auckland International Airport on 11 December 2016 and any accrued interest;
(ii) the following sums of cash seized by Customs from the luggage of Ryszard Wilk (Mr Wilk Snr) at the Auckland International Airport on 16 April 2017 and any accrued interest:
(A) $2,430 New Zealand Dollars; (B) €13,580 Euro;
(C)£20 Great British Pounds;
(D)$400 Australian Dollars; and
(E)$33,200 United States Dollars.
(b)Further order under ss 34 and 35 of the Act: zł1,430 Polish zloty (converted to $481 NZD) seized by Customs from the luggage of Mr Wilk Snr at the Auckland International Airport on 16 April 2017 is released from restraint and the Official Assignee is directed to pay this sum into a bank account nominated by Mr Wilk Snr.
(c)Costs: costs lie where they fall in relation to all matters between the Commissioner and Mr Wilk Snr.
[8]I also record the further terms of the agreed settlement as follows:
(a)Mr Wilk Snr abandons all claims he may have, under the Act or otherwise; to any of the property to be forfeited or any of the other restrained property;
(b)the Commissioner will not pursue his application for a profit forfeiture order against Mr Wilk Snr;
(c)the settlement is in full and final settlement of the current proceedings brought by the Commissioner against Mr Wilk Snr under the Act; and
(d)the settlement does not entail any admission of liability or wrongdoing by Mr Wilk Snr.
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