Commissioner of Police v Young
[2014] NZHC 2393
•1 October 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2013-419-873 [2014] NZHC 2393
UNDER the Crimnal Proceeds (Recovery) Act 2009 BETWEEN
THE COMMISSIONER OF POLICE Applicant
AND
BRENT WILFRED YOUNG First Respondent
LEONIE ADELLE SCHUBERT Second Respondent
Conference: 30 September 2014 Counsel:
T C Tran for the Applicant
P G Mabey QC for the First Respondent
S A McKenna for the Second Respondent
T M Braun for G Bellamy
A Ho for the Liquidators of Okau Earthmoving & Drainage Ltd
(in liquidation)Judgment:
1 October 2014
JUDGMENT OF BROWN J [On application for adjournment]
This judgment was delivered by me on 1 October 2014 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitor, Hamilton Whitfield Braun Ltd, Hamilton Waterstone Insolvency, Auckland
Counsel: P G Mabey QC, Tauranga
S A McKenna, Hamilton
COMMISSIONER OF POLICE v YOUNG [2014] NZHC 2393 [1 October 2014]
[1] This matter was set down for a three day fixture commencing on 1 October
2014.
[2] On Tuesday 30 September 2014 Mr Mabey QC, counsel for the first respondent, filed an application seeking an order that the hearing be adjourned for the reason that a hearing has been scheduled in the District Court relating to matters relevant to an issue of significance in the High Court proceeding.
[3] I convened a telephone conference at 2.15 pm on 30 September 2014 to hear the application. Mr Mabey’s application was supported by Mr McKenna for the second respondent. In the short time available Mr Braun had been unable to obtain instructions and Mr Ho did not oppose. However Mr Tran advised that the applicant opposed the application.
Background
[4] The first respondent was arrested following the execution of a search warrant at 154 Collins Road, Hamilton on 18 June 2013. Located at the premises was an active clandestine laboratory, significant amounts of methamphetamine, precursor substances, equipment used in the manufacture of methamphetamine and cash. In the application for a profit forfeiture order the subject of the current proceeding, a significant component of the alleged unlawful benefit, in terms of s 53 of the Criminal Proceeds (Recovery) Act 2009, relates to the methamphetamine manufactured at 154 Collins Road, Hamilton.
[5] The first respondent has pleaded guilty in the District Court to charges including the manufacture of the methamphetamine found at 154 Collins Road and being in possession of certain precursors, material and equipment also found there with the intention that they be used for future manufacture. It was anticipated that sentencing in the District Court would be completed in advance of the hearing of the current proceeding.
[6] However sentencing was unable to take place because of the need for a disputed facts hearing in relation to what is said to be a crucial sentencing issue. The issue which the first respondent wishes to raise at the disputed facts hearing is his alleged limited involvement in the offending: s 9(2) of the Sentencing Act 2002. That is now scheduled to occur on 31 October 2014.
[7] In Mr Mabey’s memorandum in support of the application he explained the
first respondent’s position as follows:
(a) He came upon a methamphetamine laboratory being operated by persons unknown at a property which he owned;
(b) He destroyed the laboratory;
(c) He was subsequently approached and attacked by persons claiming an interest in the destroyed laboratory;
(d) He was hospitalised as a result of the attack and was threatened with his life;
(e) His partner and her child were also threatened with their lives;
(f) Mr Young was told that he must rectify the position by producing methamphetamine to the satisfaction of his attackers;
(g) The attackers provided the raw materials, he would produce the methamphetamine which was at all times their property and not his;
(h) The attackers were subsequently charged;
(i) He was again approached and threatened with his life (a gun being used) as were his partner and her child;
(j) He produced the methamphetamine but was arrested in the process; (k) He subsequently appeared as a witness in Court against his attackers
and, although he was hostile for fear of naming them, they were convicted.
[8] On the basis of that material the first respondent intends to raise as a mitigating factor at sentencing that at all times he acted under severe duress and pressure. Of relevance to the current proceeding he intends to argue that he did not manufacture the methamphetamine for his own benefit and consequently that he has not benefited unlawfully from that criminal activity.
Submissions of counsel
[9] Mr Mabey makes the point that in a disputed facts hearing conducted under s 24 of the Sentencing Act the first respondent has the burden of proof on the balance of probabilities to establish the mitigating facts. He has already submitted evidence on the issue in the current proceeding in the form of his third affidavit sworn on
20 June 2014. The applicant, who has the burden of proving on the balance of probabilities that the respondent unlawfully benefited from the relevant criminal activity, has given notice that he wishes to cross-examine the first respondent in this proceeding.
[10] Mr Mabey first contends that the first respondent should not be required to submit to cross-examination in effect to assist the Crown to prove its application prior to the conduct of the s 24 hearing scheduled for 31 October 2014.
[11] Secondly, Mr Mabey submits that it would be inappropriate for this Court to determine in advance of the disputed facts hearing matters of fact relating to the Collins Road manufacture. He contends that were the High Court to do so, then the parties may well be estopped from relitigating those issues at the s 24 hearing.
Citing Commissioner of Police v Tang1 he argues that the proper course in this case
is for the current proceeding to be adjourned to enable the s 24 hearing to take place on 31 October 2014.
[12] He submits that while there would be no prejudice to any other party if an adjournment were to be granted, there could well be prejudice to the first respondent if he is deprived of the ability to properly advance the existence of a mitigating factor for sentencing purposes in the criminal proceedings.
[13] While his instructions were to oppose the adjournment application, I think that it is fair to say that Mr Tran was mindful of the implications for the applicant if he was not permitted to cross-examine the first respondent. Without resiling from his opposition, he fairly recognised the practical significance of the points which had
been advanced by Mr Mabey.
1 Commissioner of Police v Tang [2013] NZHC 1750.
[14] However he made the point that restraining orders have not been made in this matter, notwithstanding that various items of property are in the possession of the Official Assignee.
Discussion
[15] The nature of the decision on an application for adjournment of an application for forfeiture orders was discussed by the Court of Appeal in Commissioner of Police v Wei:2
[40] … This is a discretionary decision tailored to the facts of each case. It requires the Judge to undertake a balancing exercise, assessing the interests of each party, to reach a conclusion as to where the interests of justice lie. It is not an area where an appellate court should be making hard and fast rules.
[41] There is no general rule that civil proceedings must be adjourned if related criminal proceedings are pending. Equally, there is no rule that a civil plaintiff is entitled to a hearing before an impending criminal trial. In a case where the prosecuting agency is, in effect, the same party as the plaintiff in the civil proceeding, considerations of entitlement of a civil plaintiff to pursue his or her case without delay are obviously diluted substantially. In our view, the High Court Judges in the decisions under review were right to see the present cases as fact-specific and as calling for a balancing exercise.
[16] While the applicant takes the position that he wishes to proceed with the hearing, it is obvious that, given that he has the burden of proof, he would wish to cross-examine the first respondent pursuant to the notice given on 10 July 2014 requiring production of the first respondent for cross-examination. I consider that there is a potential disadvantage for the first respondent if he were required to submit to cross-examination and a corresponding disadvantage for the applicant were I to decline to allow the first respondent to be cross-examined in the particular circumstances. Mr Mabey has indicated that, if required to give evidence, the first respondent would wish to keep his cards close to his chest.
[17] I do not see this dilemma as being in the nature of the tactical disadvantage discussed by Brewer J in Commissioner of Police v Kirschberg3 provided to me by
Mr Mabey. Rather it simply reflects the unfortunate chain of events whereby the
2 Commissioner of Police v Wei [2012] NZCA 279 at [39]-[40].
3 Commissioner of Police v Kirschberg [2012] NZHC 3284.
District Court sentencing process has not been completed as anticipated prior to the hearing of the current proceeding. I am concerned to ensure however that no unfairness should arise as a consequence. I see the issue of potential unfairness as affecting both the first respondent and the applicant notwithstanding the somewhat bullish stance which the applicant has elected to take.
[18] The factor which significantly tips the balance in favour of an adjournment is the availability of a replacement fixture as early as 1 December 2014 coupled with Mr Mabey’s advice that he is definitely available to take a fixture at that time. Unlike other cases where there is a prospect of a substantial delay, in the present matter the slippage occasioned by an adjournment will be only two months and the outcome of the disputed facts hearing should be known well prior to the High Court hearing.
[19] While I accept, like Brewer J, that as a civil plaintiff the Commissioner has an entitlement to pursue his claim without excessive delay, the very brief delay occasioned by the short adjournment in this matter will not derogate significantly from his public function under the Act. The only potential detriment for the Commissioner lies in the fact that in the present case restraining orders have not been made. I understood from my inquiry of Mr Mabey that there is no suggestion that the first respondent was seeking to act in a way which would require the making of restraining orders. However Mr Ho informed me that the first respondent and the liquidators had reached an agreement that a transfer to the first respondent of certain assets of the company, of which they are liquidators, had constituted a voidable transaction. It appears that there are proceedings on foot in another High Court registry with reference to those assets.
[20] In order that the applicant’s position is not prejudiced by the adjournment I direct that the application for restraining orders which was filed but has not been determined may be brought on at short notice should that prove necessary. In that regard I record that I will be sitting in the court at Hamilton next week in the event that the applicant wishes to pursue the restraining order application.
[21] Finally I note that orders have previously been made for a timetable for the filing of submissions: refer Minute of Kos J dated 25 June 2014. The timetable for the filing of submissions for the hearing commencing 1 December 2014 is revised as follows:
(a) Synopsis of submissions from the Commissioner to be filed by Friday
7 November 2014;
(b)Synopsis of submissions from the first respondent and second respondent to be filed by Friday 21 November 2014; and
(c) Synopsis of submissions from Mr Bellamy and the liquidators to be filed by Friday 21 November 2014.
Decision
[22] I make the following orders:
(a) The fixture for 1 October 2014 is vacated and a new fixture is allocated for three days commencing 1 December 2014;
(b)Leave is reserved to the applicant to apply on short notice for the determination of the extant application for restraining orders;
(c) Synopses of submissions are to be filed in accordance with the timetable at [21] above; and
(d)Any question of costs arising from this judgment is reserved and can, if necessary, be decided by the Judge who conducts the hearing on
1 December 2014.
Brown J
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