Heron v Commissioner of Police
[2025] NZCA 366
•28 July 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA641/2024 |
| BETWEEN | MICHAEL JOHN HERON |
| AND | COMMISSIONER OF POLICE |
| CA642/2024 | ||
| BETWEEN | HAYLEY CECELIA LEWIS | |
| AND | COMMISSIONER OF POLICE | |
| Hearing: | 23 June 2025 |
Court: | French P, Lang and Downs JJ |
Counsel: | A J McKenzie for Appellant in CA641/2024 |
Judgment: | 28 July 2025 at 2.15 pm |
JUDGMENT OF THE COURT
AThe appeals are dismissed.
B There is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Mr Heron pleaded guilty in the District Court to charges of cultivating cannabis,[1] being in possession of cannabis for the purposes of supply,[2] and manufacturing cannabis oil.[3] The offending occurred between 2015 and 2020. On 11 August 2021, Judge P Kellar sentenced Mr Heron to 12 months home detention on those charges.[4]
[1]Misuse of Drugs Act 1975, s 9(1).
[2]Section 6(1)(f).
[3]Section 6(1)(b).
[4]R v Heron [2021] NZDC 16914.
In 2021, the Commissioner of Police initiated a proceeding in the High Court in which he obtained restraining orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) over assets owned by Mr Heron and his wife, Ms Lewis. These comprised two rural properties and a quantity of cash. On 23 February 2023, the Commissioner applied for civil forfeiture orders under the Act. He applied first for profit forfeiture orders against both Mr Heron and Ms Lewis. In the alternative, the Commissioner applied for assets forfeiture orders in relation to the three restrained assets.
In a judgment delivered on 2 September 2024, Preston J made assets forfeiture orders in relation to all three assets.[5] The Judge declined an application by Mr Heron under s 51 of the Act for relief against forfeiture but granted Ms Lewis limited relief in the form of a monetary award to be paid from the proceeds of the sale of the two properties. Mr Heron and Ms Lewis both appeal against the Judge’s decision.
Background
[5]Commissioner of Police v Heron [2024] NZHC 2497 [judgment under appeal].
The charges against Mr Heron were laid after the police executed a search warrant on 15 September 2020 at a rural address in Waimakariri that Mr Heron and Ms Lewis owned and occupied. When the police searched the walk-in wardrobe in the couple’s bedroom, they found two lock boxes sitting on a high shelf. These were found to contain the sum of $153,860 in cash. The cash consisted of banknotes packed into bundles, each of which contained some $10,000. Small plastic containers of cannabis oil were also found nearby.
Adjacent to the house was a five-bay garage that was monitored by multiple CCTV cameras. The garage had been converted into a purpose-built hydroponic growing facility. Inside this building the police found 331 plants in four different stages of cultivation. These were housed in four grow rooms, or tents. Associated equipment included water pumps, heat pumps, heat lamps, irrigation systems, a carbon dioxide unit and air conditioners. There was also a ready supply of water and nutrients. In addition, the police found a cannabis oil press and bottled cannabis oil in the garage.
Data that the police downloaded from Mr Heron’s cellphone included messages suggestive both of drug dealing activities, and the commercial cultivation of cannabis over a lengthy period of time.
The ensuing investigation also revealed that in 2014 Mr Heron and Ms Lewis had purchased a property in Waikuku for the sum of $395,000. They lived at that property between March 2014 and December 2019, when they purchased the Waimakariri property. The Commissioner contended that cash deposits into the couple’s bank account during this period indicated that Mr Heron was selling cannabis on a commercial scale. The level of power usage at the property towards the end of this period also suggested that Mr Heron had engaged in the cultivation of cannabis at the address. At the hearing in the High Court Mr Heron accepted that he had been selling cannabis during this period. He also accepted that he had been growing cannabis in a garage at the Waikuku property.
Whilst Mr Heron and Ms Lewis were living at the Waikuku property, cash deposits from the sale of cannabis were made regularly into their joint bank account (referred to in the High Court judgment as the ASB 933-00 account and in this judgment as the ASB account). This account was used to fund the couple’s living expenses, including leisure activities such as overseas travel. Funds from the ASB account were also used to pay the mortgage on the Waikuku property and deposited into an investment account the couple opened with a firm of investment advisors.
In December 2019, Mr Heron and Ms Lewis purchased the Waimakariri property for the sum of $700,000. They withdrew sums totalling $220,000 from the investment account to fund this purchase in part. The balance of the purchase price was funded by a loan obtained from a bank. Funds from the ASB account were then used to meet mortgage payments on the Waimakariri property.
Approximately one month after purchasing the Waimakariri property, Mr Heron began making significant alterations to the garage adjoining the house. He engaged tradesmen to construct the facilities that would be used to cultivate cannabis and paid these persons in cash.
After moving to the Waimakariri property Mr Heron and Ms Lewis rented out the Waikuku property. The rental income was paid into the ASB account. Mortgage payments in relation to this property continued to be made using funds from that account.
The law
The purpose of the Act is set out in s 3:
3 Purpose
(1)The primary purpose of this Act is to establish a regime for the forfeiture of property—
(a)that has been derived directly or indirectly from significant criminal activity; or
(b)that represents the value of a person’s unlawfully derived income.
(2)The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a)eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and
(b) deter significant criminal activity; and
(c)reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
(d)deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.
Section 6 of the Act relevantly defines “significant criminal activity” as follows:
6 Meaning of significant criminal activity
(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.
…
The power to make a type 1 assets forfeiture order is contained in s 50 of the Act, which relevantly provides:
50 Making type 1 assets forfeiture order
(1)If, on an application for a type 1 assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make a type 1 assets forfeiture order in respect of that specific property.
(2) Subsection (1) is subject to section 51.
…
Section 5 defines “property” as follows:
property—
(a) means real or personal property of any kind—
(i) whether situated in New Zealand or a foreign country; and
(ii) whether tangible or intangible; and
(iii) whether movable or immovable; and
(b) includes an interest in real or personal property.
The term “tainted property” is also defined in s 5:
tainted property—
(a) means any property that has, wholly or in part, been—
(i) acquired as a result of significant criminal activity; or
(ii)directly or indirectly derived from significant criminal activity; and
(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.
Section 51 of the Act enables a respondent to an application for forfeiture orders to obtain relief against forfeiture:
51Exclusion of respondent’s property from assets forfeiture order because of undue hardship
(1)The High Court may, on an application made by the respondent before an assets forfeiture order is made, exclude certain property from an assets forfeiture order if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property is included in the assets forfeiture order.
(2)The circumstances the Court may have regard to under subsection (1) include, without limitation,—
(a)the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the assets forfeiture order; and
(b)the nature and extent of the respondent’s interest in the property; and
(c)in the case of a type 1 assets forfeiture order, the circumstances of the significant criminal activity to which the order relates.
The issues in the High Court
At the hearing in the High Court, Mr Heron and Ms Lewis did not oppose an assets forfeiture order being made in relation to the cash found in their wardrobe on the basis that it comprised funds obtained through the sale of cannabis. However, Ms Lewis maintained that she had no knowledge of the presence of the cash boxes in the wardrobe.
The Commissioner contended that both the Waikuku and Waimakariri properties also constituted tainted property for the purposes of the Act. Counsel for the Commissioner acknowledged that Mr Heron and Ms Lewis had acquired the Waikuku property using funds legitimately obtained. However, the Commissioner argued that this property became tainted when they used funds from the ASB account, which comprised in part money derived from the sale of cannabis, to meet mortgage payments on the property.
The Commissioner alleged that the couple then used tainted funds from the investment account to pay the deposit on the Waimakariri property. Funds from the ASB account, into which cash deposits continued to be made, were subsequently used to make mortgage payments on the Waimakariri property. The Commissioner contended that these factors meant that this property was also liable to forfeiture as tainted property.
Mr Heron did not oppose an assets forfeiture order being made in relation to the Waikuku property. However, he applied under s 51 of the Act for relief against forfeiture in relation to the Waimakariri property. Ms Lewis did not oppose an assets forfeiture order being made against both properties. However, she sought relief under s 51 in the form of an order that her half-share in both properties was to be excluded from any forfeiture orders the Judge made.
The Judge’s decision
The Judge was satisfied that, from at least 2015, Mr Heron and Ms Lewis were unlawfully benefiting from the sale of cannabis. She was also satisfied that, from at least October 2016, the extraordinarily high power usage at the Waikuku property suggested that Mr Heron had commenced cultivating cannabis at that property. He acknowledged that he had grown cannabis at that property in a garage adjacent to the house.
The Judge also accepted that Mr Heron and Ms Lewis received a total unlawful benefit of approximately $1.277 million.[6] This comprised the cash found in the two cash boxes, together with unexplained cash and electronic deposits made to the ASB account. It also included rental income received from the Waikuku property, the increase in value in the investment account and the increases in value of the two properties since the date they were acquired.
[6]At [30], [32] and [53].
The Judge noted that the issue of whether property is tainted for the purposes of the Act is a simple question of fact.[7] She also observed that cash that has been derived from criminal activity will also taint real property if it is used as part of the purchase price or to renovate or add value to the property.[8] Such cash will also taint real property when it is used to pay off any part of the mortgage balance owed on the property. The manner in which Mr Heron and Ms Lewis had used cash to meet mortgage payments and provide the deposit for the Waimakariri property satisfied the Judge that both properties were tainted for the purposes of the Act.
[7]At [54].
[8]At [54], citing s 5(1) of the Act.
The Judge was then required to determine whether she should grant relief to Mr Heron and Ms Lewis under s 51 of the Act. As we have already noted, Mr Heron conceded that the Judge should make an assets forfeiture order in relation to the Waikuku property even though the couple had acquired it using legitimate means. He sought relief only in relation to the Waimakariri property, on which he has now established a fledgling microgreens business.
Analysis of the factors referred to in s 51(2) led the Judge to conclude that it would not be appropriate to grant relief to Mr Heron in relation to the Waimakariri property. This was because his offending was “substantial and enduring”.[9] Further, it produced more than $383,000 in cash and represented approximately 47 per cent of the couple’s joint income over the relevant period.[10] Some of the cash enabled the couple to purchase and pay the mortgage instalments on the Waimakariri property. Immediately after purchasing that property Mr Heron also used cash to pay the tradesmen who modified the garage for the purpose of continuing and expanding his cannabis cultivation operation. This suggested he had purchased the property with the intention of using it to continue and expand his cannabis growing operation.
[9]At [73].
[10]At [73].
The Commissioner did not contend that Ms Lewis was involved in the cannabis growing operation at either property. However, his counsel relied on several strands of evidence as suggesting she was aware of what Mr Heron was doing at both properties. First, when initially interviewed by the police at the time they searched the Waimakariri property, Ms Lewis told the police that she “knew something was going on, but not the extent”. At the hearing, Ms Lewis contended that she had been fully engaged in full-time employment during the period covered by the charges and had no interest in what her husband was doing at the two properties. She said she had not entered the areas where her husband was growing cannabis. The Judge found that this explanation lacked credibility.[11]
[11]At [44] and [45].
The Judge concluded that Ms Lewis’ explanations were not credible for the following reasons:
[46] Pressed on her initial comment to police that she knew her husband was “up to something” Ms Lewis denied he was a large-scale cannabis cultivator but claimed that the thought that he was growing cannabis “crossed [her] mind” more than once. She has subsequently admitted she knew that one of the couple’s nine overseas holidays to Australia and South East Asia between 2014 and 2019, a May 2019 trip to Brisbane, was part-funded by Mr Heron’s cannabis sales. Mr Heron in evidence also downplayed Ms Lewis’ knowledge or involvement in his cannabis cultivation or activities, emphasising her work responsibilities and that they kept work discussions separate from their personal lives. He described Ms Lewis was not “interested” in what he was doing, although noted that she did once comment about the smell (I infer, of cannabis) at the Johns Road property.
[47] I accept the couple described a somewhat frugal approach in their lifestyle. However, it was clear from their evidence that Ms Lewis was closely involved in aspects of Mr Heron’s business ventures. She prepared the excel spreadsheets for the accountants which claimed diverse cash income streams which were his sole source of claimed income from 2016 onwards. Mr Heron testified that Ms Lewis set his work schedule effectively. While Ms Lewis appeared to downplay that involvement, she maintained that the couple retained ‘five or six’ corporate clients in the lawnmowing business after it moved a cash model and that the majority of their cash business, a big part of Mr Heron’s income, was mowing empty sections in Pegasus. Yet, as I discuss further at [51] below that claimed income stream was nowhere near as successful as the other various sources of income including avocado sales, gold prospecting, casual truck driving and, in particular the apparently thriving firewood business from 2016 through to 2019. Additionally, as Ms Lewis accepted in cross-examination over the review period in fact an additional $130,000 in cash was deposited into the couple’s various bank accounts over and above what she had recorded in the work papers for the accountants.
[48] They had been together since 2004. I find it beggars belief to suggest Ms Lewis was unaware of the nature or extent of the cannabis cultivation at [Waimakariri], or indeed what must have been the extent of the operation being run from the garage at [Waikuku] by the time the couple left that home in late 2019 given the power consumption evidence at both properties and the messaging indicating both wholesale and retail supplies by Mr Heron.
[49] Third, as Mr Heron himself described the establishment of the cultivation installation at [the Waimakariri property] was an “industrial” build for which he engaged certified tradespeople to undertake some of the work, including a power unit and an air conditioning unit. That work commenced as soon [as] the tradespersons were available after the Christmas break in January. Even allowing Ms Lewis the benefit of the doubt that the first month in which she enjoyed time in the bar within the five-bay garage had ended before the tradesman commenced within a month of buying the property, it is not credible that she would not have inquired as to the extensive work being undertaken by those tradesmen in the 5-bay garage.
The Judge noted that Ms Lewis was the mother and primary caregiver of the couple’s three-year-old daughter.[12] She also assists in the support of Mr Heron’s mother, who lives in her own home on the Waimakariri property. Further, Ms Lewis was employed throughout the period of Mr Heron’s offending and her salary contributed towards mortgage payments during that time.
[12]At [79].
However, the Judge found that there could be “no doubt” that Ms Lewis unlawfully benefited from Mr Heron’s significant criminal activity.[13] The Judge was satisfied on the balance of probabilities that, for at least four years before the police discovered the cannabis growing operation in the Waimakariri property, the couple enjoyed the benefit of its proceeds.[14] Ms Lewis lived in both properties after they became tainted through the use of cash derived from the sale of cannabis. This was deployed not only to meet mortgage payments but also to improve both properties and otherwise sustain the lifestyle the couple enjoyed. The Judge considered that the only reasonable inference was that Ms Lewis appreciated the illegitimate character of the significant stream of income this generated.[15]
[13]At [79].
[14]At [80].
[15]At [80].
The Judge was nevertheless satisfied that Ms Lewis’ application for relief was of a different character than Mr Heron’s.[16] First, she was likely not aware of the true extent of Mr Heron’s offending in terms of the full value or benefit thereby obtained. Secondly, Ms Lewis had met all mortgage outgoings on both properties since they were restrained when the Commissioner of Police instituted proceedings under the Act in 2021. During that period, she had reduced the principal owing to the bank by the sum of $45,038.81. Further, her only other asset was a KiwiSaver account having a credit balance of approximately $50,000. She therefore stood to lose both properties but still have the responsibility of caring for their young daughter.
[16]At [82].
Taking these factors into account, the Judge considered that Ms Lewis was entitled to “some limited relief”.[17] The Judge explained how this should be calculated as follows:
[86] Applying the Commissioner’s figure of capital gains accruing at $37,222 per year across the period 2014 to 2023, in my assessment it is fair Ms Lewis is granted relief as to half the initial equity in the [Waikuku] property and as to two years’ capital gain on that equity, that is to 2016 following which I am satisfied there is clear evidence of the application of criminal proceeds towards the property. This equates to a figure of approximately $102,000. There being no financial accounts provided in support of the interest — by contrast with principal — paid since restraint, I consider further relief in the amount of $45,000 in respect of the funds applied to reduce the principal since restraint is appropriate. This relief is to be provided against the total assets to be forfeit, the $153,860 cash and the two real properties valued conservatively at $1,770,000 before encumbrances.[18]
[17]At [85].
[18]Totalling $634,406.18 as at 14 February 2024.
The Judge therefore directed that Ms Lewis was to be granted relief in the amount of $147,000, which sum was to be paid to her after the properties had been sold.
The appeals
Mr Heron
Mr McKenzie referred us to a text in which the authors note that the Proceeds of Crime Act 1991, the predecessor to the current Act, was introduced in part to meet New Zealand’s obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (1988 Convention).[19] In broad terms, party states agreed to adopt such measures as may be necessary to enable confiscation of proceeds derived from offences or, alternatively, property having a value equivalent to such proceeds.[20] Mr McKenzie used this to develop an argument that it was only necessary for the Judge to make orders that deprived Mr Heron of assets to the value of the cash profit he had made illegally from the cultivation and sale of cannabis. This amounted to approximately $380,000. In assessing the unlawful benefit Mr Heron had obtained from the offending, Mr McKenzie submitted the Judge should have disregarded the increase in capital value of the two properties since the date they were purchased.
[19]Heather McKenzie Proceeds of Crime Law in New Zealand (LexisNexis, Wellington, 2015) at [1.2.1], referring to United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1582 UNTS 95 (opened for signature 20 December 1988, entered into force 11 November 1990) [the Convention].
[20]The Convention, art 5.
Mr McKenzie contended that the amount the Commissioner will realise from the sale of the Waikuku property will easily exceed the cash benefits Mr Heron derived from the cultivation and sale of cannabis at both properties. For this reason he argued it was not necessary for the Judge to make forfeiture orders in relation to the Waimakariri property. Further, such orders will produce undue hardship for Mr Heron because he will lose the benefit of the new business he has established on that property.
Ms Lewis
On Ms Lewis’ behalf, Mr Allan acknowledged the factual findings the Judge made regarding her likely knowledge of the offending. However, he submitted that the relief the Judge granted to her was insufficient when this was just one of the mandatory factors to be considered under s 51. Mr Allan contended the Judge should have granted Ms Lewis relief to recognise the contributions she made to the Waikuku property between 2016 and 2020. He also submits the Judge ought to have allowed Ms Lewis to retain the increase in the capital value of the Waimakariri property between the date of Mr Heron’s arrest and the hearing in the High Court.
Mr Allan emphasised that Ms Lewis was never charged in relation to the cultivation of cannabis on either property. He said that the undue hardship that forfeiture of both properties will cause for her can only be mitigated by recognising the legitimate financial and non-financial contributions that she made both to her family and to the two properties.
Mr Allan therefore contended that the relief granted to Ms Lewis should be increased to 50 per cent of the net value of the two properties.
Decision
Mr Heron
We do not consider it necessary for present purposes to examine the issue Mr McKenzie has raised in relation to the 1988 Convention. This is because we do not consider the provisions of the current Act are inconsistent with the objectives of that convention.
However, we do not accept Mr McKenzie’s submission that the assets forfeiture regime set out in the Act requires forfeiture orders to be tailored to the level of unlawful benefit that significant criminal activity has produced. This approach aligns with the objectives of the profit forfeiture regime, which seeks to deprive offenders of profits derived from significant unlawful activity. By contrast, the assets forfeiture regime is designed to deprive persons who have benefited from such activity of assets that fall within the description of tainted property. As the definition in s 5(1) confirms, tainted property is property that has, either wholly or in part, been acquired or derived from significant criminal activity. Where property is derived from more than one activity, it will fall within the definition if one of those activities is a significant criminal activity. These definitions mean that, under the assets forfeiture regime, the focus will be on the source from which assets are acquired or derived.
Where an asset falls within any of the definitions of tainted property, the Court is required to make an assets forfeiture order. This is subject only to the relief available to respondents under s 51 and to third parties under ss 61 and 62 of the Act.[21] The overall financial benefit derived from significant criminal activity may be relevant to an application for relief by virtue of s 51(2)(c), but it is just one of the factors to be taken into account under that section. Further, assets that fall within the definition of tainted property will be forfeited regardless of whether they have increased in capital value by virtue of inflation.
[21]Relief is only available under s 62 after a forfeiture order has already been made.
In the present case, as Mr McKenzie acknowledged, the only avenue of relief available to Mr Heron is under s 51. However, the factors set out in s 51(2) of the Act suggest almost universally that relief would be inappropriate so far as the Waimakariri property is concerned. As we have already noted, it was acquired using a deposit from the tainted investment account. Thereafter the house was used as a residence for Mr Heron and his family. However, the garage was immediately converted to a sophisticated cannabis growing facility using cash derived from criminal activity. The garage was then used exclusively to conduct a sophisticated cannabis growing operation that derived further cash profits. These continued to be deposited to the ASB account from which mortgage payments were made to reduce the loan from the bank. The same factors explain why it would be inappropriate to allow Mr Heron to retain the passive gain achieved through the increase in the capital value of the property since the date it was bought.
Finally, we do not accept Mr McKenzie’s submission that Mr Heron’s offending cannot be regarded as particularly serious given the fact that he received a sentence of 12 months’ home detention. This ignores the fact that the Judge who sentenced Mr Heron selected a starting point of three years and eight months’ imprisonment to reflect the aggravating factors of the offending.[22]
[22]R v Heron, above n 4, at [67].
We are therefore satisfied that the Judge was correct not to grant Mr Heron relief against forfeiture in relation to the Waimakariri property.
Ms Lewis
As will already be evident, the Judge granted Ms Lewis relief by directing that she be paid a sum of money from the net proceeds of the sale of the two properties. There is no cross-appeal against the orders the Judge made and the Commissioner does not seek to disturb them. However, the Commissioner raises a jurisdictional argument regarding the approach the Judge took. This flows from the fact that s 51 provides the Court with the power to “exclude certain property” from an assets forfeiture order if it considers it is reasonably likely that the respondent will suffer undue hardship if “the property” is included in the order. The Commissioner submits that, in situations where an interest in property is not severable, the Court is faced with a binary decision: to exclude the property or not to exclude the property.
As counsel for the Commissioner points out, this can be contrasted with the relief provisions provided to interested parties under s 61 and 62 of the Act. Under those sections the Court has the power to direct that the Commissioner is to pay an interested party an amount equivalent to the value of their interest in the forfeited property if that interest is not severable.
In Doorman v Commissioner of New Zealand Police,[23] as in the present case, a property in which cannabis was being cultivated became tainted when cash proceeds from the sale of the cannabis were used to meet mortgage repayments. The appellant was wholly responsible for cultivating cannabis on the property. However, the High Court was satisfied that his partner had knowingly benefited from the significant criminal activity involved. The Court therefore declined an application by the appellant’s partner for relief under s 51.
[23]Doorman v Commissioner of New Zealand Police [2013] NZCA 476, [2014] 2 NZLR 173.
The property had been sold before the appeal to this Court was heard. The net proceeds of the sale were held by the Official Assignee. On appeal, the appellant’s partner argued that it was possible for the Court to make an order under the Act that a portion of the sale proceeds should be returned to her to address the undue hardship she had suffered through forfeiture of the property. Although the appeal was determined on other grounds, this Court observed:[24]
[72] We doubt that partial forfeiture is available. Section 51(1) deals with the ability to exclude “certain property” from an assets forfeiture order if “undue hardship is reasonably likely to be caused to the respondent if the property is included in the assets forfeiture order”. This wording may be contrasted with that in s 142N of the Sentencing Act which provides that the court may order that the instrument of crime “or any part of it” be forfeited to the Crown.
[73] In Elliot v R this Court said that if this wording had been present in the former Proceeds of Crime Act, the Court in R v Dunsmuir (a case decided under that Act) would have considered there was jurisdiction to order forfeiture of part of the property despite the fact the property was held in one title. The addition of the words “any part”, absent in s 51, was accordingly significant. The nature of the property does not alter the position.
[24]Footnotes omitted.
We consider the approach to relief taken by the Judge in the present case to be problematic given the clear wording used in s 51(1). The section does not appear to permit the provision of relief through a monetary award from the sale proceeds of property that has been forfeited. It is not, however, necessary for us to examine that issue further in the present case because the Commissioner has not filed a cross-appeal against the Judge’s decision.
However, even if jurisdiction to make such an order exists, we do not consider it would be appropriate to increase the relief Ms Lewis has already received. On any view of the evidence she had some appreciation of what was occurring at both properties. She also plainly knew of the significant quantities of cash her husband’s activities were generating over a period spanning several years. She was also prepared to share in the benefits those activities produced. These factors plainly count against further relief being awarded.
Costs
As Mr Heron and Ms Lewis are legally aided, there will be no order as to costs.
Result
The appeals are dismissed.
There is no order as to costs.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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