Commissioner of Police v Young

[2024] NZHC 1757

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-0162

[2024] NZHC 1757

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRENT WILFRED YOUNG

Respondent

WESTPAC NEW ZEALAND LIMITED

Interested party

Hearing:	On the papers
Counsel:	KRL Guthrie for applicant
Date of judgment:	1 July 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 1 July 2024 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Hamilton

COMMISSIONER OF POLICE v YOUNG [2024] NZHC 1757 [1 July 2024]

[1]                  On circuit this week, I have the Commissioner’s without notice application for restraining and further orders dated 25 June 2024, seeking to place land in the Waikato’s Ōpārau into the hands of the Official Assignee.1

[2]                  The application is supported by an 18 June 2024 affidavit sworn by a police officer, contending Mr Young is the registered owner of the land, which he is alleged to have used as a place to manufacture methamphetamine (for possession and supply of which he is charged, each punishable by a maximum term of imprisonment exceeding five years).2

Law

[3]                  I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.3

[4]                  In circumstances in which a respondent is charged with a “qualifying instrument forfeiture offence” (as the charges against Mr Young are),4 if then I am satisfied I have reasonable grounds to believe the property is an “instrument of crime”

— that is, “property used (wholly or in part) to commit or facilitate the commission of [that] offence”5 — I may make a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.6 And  I may, if I consider it appropriate, make further orders.7

1      Criminal Proceeds (Recovery) Act 2009, s 26.

2      Misuse of Drugs Act 1975, s 6(1)(b) and (f) and (2).

3      High Court Rules 2016, r 7.46(3) and (5).

4      Criminal Proceeds (Recovery) Act, s 5(1) (definition of “qualifying instrument forfeiture offence”).

5      Section 5(1) (definition of “instrument of crime”).

6      Section 26.

7      Section 34.

Discussion

[5]                  ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.8 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of five years or more, or offending obtaining property with a value exceeding $30,000.9

[6]                  Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining orders would put the land at relevant risk, given the land’s susceptibility to disposal or pledge, prejudicing the Commissioner in obtaining its forfeit to the Crown; and

(b)on the basis of the police officer’s affidavit, I have reasonable grounds to believe the land was used as a place for Mr Young’s alleged manufacture of methamphetamine to facilitate his possession and supply of it.

[8]                  I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining and further order sought. I additionally consider it appropriate to make further orders to preserve the value of the property and to direct (on request) particularisation of the interested party’s interest in it.

Result

[9]I:

(a)order in terms of paras 1 and 2, subparas 4(a)–(e) and 6; and

8      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

9      Criminal Proceeds (Recovery) Act, s 6(1).

(b)direct in terms of para 5—

of the Commissioner’s 25 June 2024 application.

—Jagose J