Police v R HC Auckland CIV-2010-404-4897

[2010] NZHC 1821

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-4897

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDR

Respondent

Hearing:         27 September 2010

Appearances: D G Johnstone for Applicant

J Soondram for Respondent

Judgment:      30 September 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

30 September 2010 at 5.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

J Soondram, PO Box 4304, Shortland Street, Auckland 1140

POLICE V R HC AK CIV-2010-404-4897  30 September 2010

[1]     The Commissioner of Police seeks orders under the Criminal Proceeds (Recovery) Act 2009 for the restraint and forfeiture of vehicles and cash seized by the police on 1 and 5 July 2010.  It alleges that the property is tainted property, that the respondent has unlawfully benefited from significant criminal activity and that the property is owned by the respondent or was in his effective control when it was seized.

[2]      It has not been possible for the respondent to be personally served.   Kelly Corby, who is a police officer, has sworn two affidavits detailing the steps taken to effect service.  In her first affidavit dated 31 August 2010, she said that she provided the relevant documents to a police officer to hand to counsel whom she understood was acting for Mr R    in respect of the criminal charges brought against him. Counsel responded by stating that he was not instructed by Mr R   in relation to the present proceeding, that he was not authorised to accept service, and that he did not know the whereabouts of Mr R  .

[3]      On 23 August 2010 Mr R   absconded from the address at which he was required to reside on electronically monitored bail in Hamilton.   He has not been able to be located since.  In a subsequent affidavit, Constable Corby stated that she went  to  the  Auckland District  Court  on 3  September  2010  where  Mr R    was scheduled to attend a hearing.  Counsel for Mr R   then advised her that he had not heard from Mr R   and Mr R   failed to appear.  A warrant for his arrest was issued. As at 15 September 2010, Mr R   had not been located and his whereabouts is unknown.

[4]      On  17  September  2010,  Constable  Corby  went  to  the  bail  address  in Hamilton, leaving the relevant documents there together with written advice as to the hearing date on Monday 27 September.  Mr R   did not appear.

[5]      An application for substituted service has been filed.   The application also seeks leave to proceed as if service of the documents had been effected on Marcel R  .  I consider in the circumstances that the Commissioner has taken all reasonable steps to bring the proceeding and the hearing date to the attention of Mr R  .  I grant the application for substituted service.

[6]      Other affected parties have been served.   Only one person has taken any steps.  He is Mr Martin  Cooper.  Mr Soondram appeared for him when the matter was called before Lang J on 16 September 2010.  Lang J noted in his minute of that day that there is a dispute as to whether one of the vehicles seized, namely a 2007

Harley Davidson motorcycle, registration 25YPU, ought properly to be the subject of a restraining or forfeiture order.  The motorcycle is registered in Mr Cooper’s name and he has filed a notice of opposition to the restraining order and an affidavit setting out the grounds on which he opposes a restraining order being made.

[7]      Lang J directed that that aspect of the application for a restraining order was to be heard on 27 September.

[8]      I have considered Mr Cooper’s affidavit of 25 August 2010.  In summary, he deposes that the Harley Davidson motorcycle that was seized by the police is his property.   He states that he acquired the motorcycle in June 2009, and it was registered in his name on 6 March 2010.   He attached the relevant certificate of registration.  On 6 April he advertised the motorcycle on the “TradeMe” website as being for sale.  He attached proof of the listing.  He continued:

9.        Sometime in May 2010 I received a telephone call from a person I now know to be Marcel R  , the first respondent in these proceedings.  He advised me that he was interested in the motorcycle and wanted to view it.  I had never met this person previously and have had no dealings with him prior to this.

10.      The first respondent came and viewed the motorcycle.  He told me that  he  was  interested  in  it  and  we  had  a  general  discussion  about motorcycles.   He told me that he was involved in building custom motorcycles and that he would contact me within the next couple of weeks to discuss the purchase price.

11.      Sometime during the first week in June I received another call from the first respondent advising that he was still interested in the bike and asked if I could take it to the Northshore for a mechanic to check it and give it an appraisal.

12.      On Friday 4th of June 2010 I transported the motorcycle by trailer to unit 5, 7-9 Marken Place in Glenfield, Auckland, the premises of “Reflection Motorcycle Refinishers”.   I met the first respondent at these premises and also a mechanic who was introduced to me as “Will”.

13.      The mechanic proceeded to check the bike and later advised that the bike  was  fine  but  needed  to  be  serviced  and  2  new  tyres.    While  the mechanic was checking the motorbike, the first respondent and I went for

lunch.  He told me that he had part ownership of the business and a little bit about the work they did. Everything seemed legitimate.

14.      We discussed the price and agreed on a figure of $15,000.00.   He asked me if I was happy to leave the bike with him for a few weeks for him to raise the funds.

15.      I agreed to this on the basis that I was happy that the sale was genuine and the legitimacy of the business.

[9]      That was the last he heard from Mr R  .  He went to the premises in July

2010 to inquire whether Mr R   was in a position to purchase the motorcycle.  On his arrival he saw that the property was empty.   A neighbouring business owner advised him that the police had raided the workshop and that the business had gone into liquidation.  He endeavoured to find out what had happened to the motorcycle. Eventually he made contact with Constable Corby, who told him that the police had possession of the motorcycle.   He explained how the motorcycle had come into Mr R  ’s possession.

[10]     Mr Johnstone has not called evidence which would contradict Mr Cooper’s affidavit.   In the circumstances, I consider that the orders that the Crown seeks should not relate to the motorcycle in question and that it is appropriate for it to be returned to Mr Cooper.

[11]     Otherwise, I am satisfied on the basis of the evidence set out in Ms Corby’s affidavit in support of the application, sworn on 28 July 2010, that the Commissioner is entitled to the orders sought.  Mr R   admitted to police that he had been involved in a substantial way in the cultivation of cannabis.   It is clear that the property to which the application relates, with the exception of Mr Cooper’s motorcycle, is all tainted property to which a Criminal Proceeds (Recovery) Act 2009 applies.

Result

[12]     The Commissioner’s application of 28 July 2010 is granted, except insofar as the application relates to the 2007 Harley Davidson motorcycle, registration number

25YPU, registered in the name of Martin Ralph Cooper.

[13]     The  Harley  Davidson  motorcycle  is  to  be  returned  to  Mr  Cooper  at

6 Rukumoana Place, Clendon Park, Manukau, forthwith.

[14]     At the parties’ request I reserve questions of costs.  If costs cannot be agreed and Mr Cooper seeks costs he is to file and serve a memorandum on or before Friday

8 October.  The Commissioner may have until 15 October to reply.