De Bruin v Solicitor-General of New Zealand CA187/05

The Court of Appeal of New Zealand heard an application for leave to appeal out of time against a restraining order made under the Proceeds of Crime Act 1991. The applicants, Robert Charles De Bruin and Astrid Eleanor Delaney, sought to challenge the restraining order imposed on a property in Riddell Road following Mr De Bruin's convictions for drug importation and money laundering. The Crown opposed the application on the basis that there is no jurisdiction to appeal the grant of a restraining order. The central issue before the Court was whether there exists jurisdiction to hear the appeals against the restraining order.

The Court considered the provisions of the Proceeds of Crime Act, specifically sections 82 and 83, which outline the appeal process for forfeiture orders but do not explicitly mention restraining orders. The Court also examined the nature of restraining orders, which are made before conviction and affect property rights. The applicants argued that restraining orders are civil in nature and thus subject to the general appeal right under section 66 of the Judicature Act 1908. The Crown contended that restraining orders are primarily criminal in nature and that their omission from the explicit appeal provisions in the Proceeds of Crime Act signifies a deliberate exclusion of appeal rights.

The Court found that restraining orders, although connected to criminal proceedings, are civil in nature due to their application before conviction and their effect on property rights. The Court held that the Proceeds of Crime Act does not explicitly exclude a right of appeal for restraining orders, and thus, the general appeal right under section 66 of the Judicature Act applies. The Court rejected the Crown's argument that the explicit appeal provisions concerning forfeiture orders imply an exclusion of appeal rights for restraining orders.

The Court granted the applicants' application for leave to appeal, finding that there is jurisdiction to hear the appeals. The Court reserved all issues relating to costs to be dealt with at the time of the substantive appeal.