R v Bourne
[2023] NZHC 3117
•6 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-044-3817
[2023] NZHC 3117
THE KING v
DESMOND LAWRENCE BOURNE
Hearing: 11 October 2023 Appearances:
D S Houghton for Crown B J Hunt for Defendant Mrs Bourne in person Ms Tilsley in person
Judgment:
6 November 2023
JUDGMENT OF BREWER J
[Application for instrument forfeiture order]
This judgment was delivered by me on 6 November 2023 at 10 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell (Auckland) for Crown Barbara Hunt (Auckland) for Defendant (Copies to Mrs Bourne and Ms Tilsley)
R v BOURNE [2023] NZHC 3117 [6 November 2023]
Introduction
[1] Mr Bourne has been convicted of murder. He was driven to the scene of the murder in a black Ranger Rover motor car on 28 November 2020. The murder weapon, a semi-automatic rifle, was concealed under the rear passenger’s seat. At the scene Mr Bourne retrieved the rifle and used it to shoot dead his victim. He then drove away in the Range Rover.
[2] The police found and seized the Range Rover. On 14 May 2021, Gordon J made restraining and sale orders in respect of the vehicle pursuant to the Criminal Proceeds (Recovery) Act 2009 (the CPRA).1
[3] The Range Rover was sold by the Official Assignee for $18,310.78. This sum is held in the Official Assignee’s trust account.
[4] After Mr Bourne was convicted, and before he was sentenced, the Crown filed a notice that the Court should consider making an instrument forfeiture order under s 142B of the Sentencing Act 2002 (the Act). Essentially, this was an application for forfeiture to the Crown of the sum held by the Official Assignee.
[5]In my Minute of 4 August 2023, I said:2
[4] I understand why the Crown has given this notice (there is a sum of money which might go to the Crown rather than be reserved for a criminal). I am also cognisant that resolving whether the money should be forfeited might not be straightforward. At the time of the murder, the Range Rover was registered in the name of Mr Bourne’s partner and had previously been registered to his mother. I recall that at the trial Mrs Pamela Bourne made a comment to the effect that the Range Rover was hers and Mr Bourne’s partner (Ms Serene Tilsley) had wrongly secured the registration in her name.
[6] I decided I should consider making an instrument forfeiture order and I directed the Crown to issue and serve Mrs Bourne and Ms Tilsley with notice3 that the sale
1 Crown Solicitor at Auckland v Bourne [2021] NZHC 1078.
2 R v Bourne HC Auckland CRI-2020-044-3817, 4 August 2023.
3 Sentencing Act, s 142E.
proceeds of the Range Rover may be made the subject of an instrument forfeiture order and that they may apply for relief. I set a timetable.4
[7] Ms Tilsley, representing herself, applied for relief. Mrs Bourne did not. However, Mrs Bourne appeared at the hearing and made an oral application for relief explaining she was unable to afford a lawyer to assist her. I ruled that I would waive technical requirements and treat both Mrs Bourne and Ms Tilsley (whose documents did not comply with the High Court Rules in a number of respects) as applicants for relief. I would accept Ms Tilsley’s documents and I would accept in this hearing the documents filed by Mrs Bourne in opposition to the Crown’s applications determined by Gordon J. Mrs Bourne told me her arguments had not changed.
[8]Ms Houghton, for the Crown, acceded to this course of action.
[9] This Judgment determines whether there should be an instrument forfeiture order in respect of the proceeds of sale of the Range Rover, and the applications for relief by Ms Tilsley and Mrs Bourne.
Background
[10]I respectfully adopt Gordon J’s description of the applicable legislation:
The legislative regime – instruments of crime
Overview
[12] The [CPRA] and the Sentencing Amendment Act 2009 create a regime for the forfeiture of property that has been used to commit or facilitate the commission of certain offences.5 Criminal forfeiture (as opposed to civil forfeiture) is dealt with by way of instrument forfeiture orders, made under s 142N of the Sentencing Act. Such orders are made following conviction and apply to property, wholly or in part, used to commit, or facilitate the commission of, an offence punishable by five years’ imprisonment or more. The regime is intended to have a “strongly deterrent object”.6
4 In addition to the murder, Mr Bourne was convicted of wounding Mr Scott Fowles with reckless disregard for safety. This occurred in the same incident as the murder. The conviction is also a qualifying instrument forfeiture offence because it is punishable by a maximum term of imprisonment of seven years, s 4 of the Sentencing Act. But, no separate issue arises and so I will focus on the conviction for murder.
5 Criminal Proceeds (Recovery) Act , s 3; The Sentencing Amendment Act 2009 (2009 No 10), s 4. Section 4 provides that the purpose of that Act is to establish a regime for the forfeiture of instruments of crime as part of the sentencing process.
6 Commissioner of Police v Sheehan (2011) 25 CRNZ 591 (HC) at [35].
[13] Instruments of crime are to be contrasted with property acquired as a result of significant criminal activity. Property acquired in the latter way may be first restrained and then forfeited under profit forfeiture orders and assets forfeiture orders, which are in all respects civil. Returning to instruments of crime, prior to an application for an instrument forfeiture order, the prosecutor may apply to restrain the property which is said to be an instrument of crime pursuant to s 26 of [the CPRA]. Restraint is not required prior to forfeiture.7 But it is a step utilised to ensure the preservation of property pending forfeiture.
Instrument forfeiture
[14] Sections 142A to 142Q of [the Act] provide for the forfeiture of instruments of crime as part of the sentencing process. Section 142N is the governing provision. That section relevantly provides:
142N Instrument forfeiture orders
(1)Following a hearing under section 142K, the court may, if it is satisfied that the property described in the notice given under section 142B is an instrument of crime, order that the instrument of crime or any part of it specified by the court be forfeited to the Crown.
(2)In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—
(a)any matter raised in an application for relief under section 142J; and
(b)the use that is ordinarily made, or was intended to be made, of the instrument of crime; and
(c)any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and
(d)the nature and extent of the offender’s interest in the instrument of crime (if any), and the nature and extent of any other person’s interest in it (if any); and
(e)in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.
(3)A court that makes an instrument forfeiture order may, if it considers that it is appropriate to do so, by order,—
(a)declare the nature, extent, and value of any person’s interest in an instrument of crime; and
7 Section 11.
(b)declare that the instrument forfeiture order may, to the extent to which it relates to the interest, be discharged under section 85 of the Criminal Proceeds (Recovery) Act 2009.
…
[15] Section 142J of [the Act] and s 77 of [the CPRA] provide for relief at the instrument forfeiture stage for innocent third parties who claim an interest in the property that is the subject of an application for an instrument forfeiture order.
[16]Section 142L provides:
142LCourt may grant relief from instrument forfeiture order to applicant who establishes interest in property
(1)This section applies if—
(a)a person applies to the court under section 142J for relief from an instrument forfeiture order in respect of an interest in property on the ground set out in section 77(1)(a) of the Criminal Proceeds (Recovery) Act 2009; and
(b)the court is satisfied, following a hearing under section 142K, that the applicant has established on the balance of probabilities that the applicant—
(i)has an interest in the property to which the instrument forfeiture order relates; and
(ii)was not involved in the qualifying instrument forfeiture offence to which the order relates.
(2)If this section applies, the court must make an order—
(a)declaring the nature, extent, and value of the
applicant’s interest in the property; and
(b)either—
(i)directing the Crown to transfer the interest to the applicant; or
(ii)declaring that there is payable by the Crown to the applicant an amount equal to the value of the interest declared by the court; or
(iii)directing that the interest not be included in an instrument forfeiture order made in respect of the proceedings that gave rise to the application; or
(iv)determining, in accordance with section 142N, not to make an instrument forfeiture order.
(3)Despite subsection (2), the court may, but is not required to, refuse to make an order under subsection (2) if it is satisfied that—
(a)the applicant was, in any respect, involved in the commission of the offence in respect of which forfeiture of the property is or was under consideration; or
(b)if the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value.
…
[17]As is apparent, “innocent interest” relief from forfeiture is mandatory.
[18] Alternatively, relief against forfeiture may be granted where an applicant claims they are likely to suffer undue hardship if an instrument forfeiture order were to be made. Section 142M provides:
142MCourt may grant relief from instrument forfeiture order to applicant on grounds of undue hardship
(1)This section applies if a person applies to the court under section 142J for relief from an instrument forfeiture order on the ground set out in section 77(1)(b) of the Criminal Proceeds (Recovery) Act 2009.
(2)If the court is satisfied that, having regard to all the circumstances, undue hardship is likely to be caused to the person making the application or to another person (other than the offender), by the operation of an instrument forfeiture order, the court—
(a)may order that the person is entitled to be paid a specified amount out of the proceeds of sale of the property, being an amount that the court thinks is necessary to prevent undue hardship to that person; and
(b)if the person is under 18 years, may make additional orders for the purpose of ensuring the proper application of an amount to be paid to that person.
(3)The circumstances a court may have regard to under subsection
(2) include, without limitation,—
(a)the use that is ordinarily made, or was intended to be made, of the property that would be the subject of the instrument forfeiture order; and
(b)the nature and extent of any person’s interest in the
property; and
(c)any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence to which the property relates.
[11] I adopt also Gordon J’s description of the evidence. It is the same evidence before me, save for a further affidavit of Detective Sergeant Beal and Ms Tilsley’s documents (which I will refer to later):
[35] In support of her position that she has a 100 per cent interest in the Range Rover, Mrs Bourne relies on the following evidence:
(a)She paid for the purchase of the Range Rover by way of two payments on 6 and 7 November 2020. Mrs Bourne’s evidence is supported by bank statements showing an initial payment of $10,000 on 6 October 2020 with the balance of $22,500 paid on 7 October 2020, the day the Range Rover was purchased from a Mr Marzouk. Mrs Bourne says that she used her overdraft facility to pay for the Range Rover;
(b)The Range Rover was registered in her name on 7 October 2020. Mrs Bourne says she was unaware of the change of registration on 14 November 2020 to Ms Tilsley’s name until the Police told her about that. Mrs Bourne said she believed it was likely that Ms Tilsley changed the registration after she evicted Ms Tilsley and Mr Bourne from her address on 14 November 2020. Mrs Bourne says that as soon as she became aware of what she describes as the “false” 14 November 2020 registration, on 9 December 2020, she re- registered the vehicle in her name. On 16 February 2021, Ms Tilsley re-registered the Range Rover in her name. Mrs Bourne’s position was that Ms Tilsley was not entitled to do so;
(c)Mrs Bourne lodged a PPSR over the Range Rover on 9 December 2020. However, she says she commenced the process on 15 November 2020, after she had evicted her son and Ms Tilsley from the property. She said they departed in the Range Rover and she wished to protect her 100 per cent financial interest in it. She did not realise that the PPSR lodging process was not completed on 15 November 2020 and when it was brought to her attention by the Police, she completed the process on 9 December 2020. There is documentary evidence that supports Mrs Bourne’s position that she commenced the process on 15 November 2020;
(d)Mrs Bourne insured the Range Rover under her commercial motor vehicle;
(e)She arranged and paid for repairs to the Range Rover subsequent to its purchase;
(f)Regarding her use of the Range Rover, she says that she keeps more than one vehicle. One is for work, one for private use and a spare. She does not deny that Mr Bourne used the Range Rover during the period 7 October 2020 to 29 October 2020. She says she did not need exclusive use of the Range Rover at that time. Her son’s Mitsubishi Triton had been
damaged during 2020 and it was, in her words, “not operable” so she allowed Mr Bourne to use the Range Rover. But she says at all times she remained the owner.
[36] Ms Tilsley’s evidence was that she and Mr Bourne began a relationship around the middle of 2020. She said that Mr Bourne handed his Mitsubishi Triton over to Mrs Bourne. In return, he became the owner of the Range Rover. She acknowledged there was an argument between Mrs Bourne and Mr Bourne on 14 November 2020. She says she was not involved in the argument but accepts she and Mr Bourne left Mrs Bourne’s property that day with Mr Bourne driving the Range Rover and she was in her vehicle. She says Mr Bourne gave the Range Rover to her and he was the one who registered it in her name on 14 November 2020. It was on the basis of that “gift” that Ms Tilsley changed the registration on 16 February 2021 from Mrs Bourne’s name back into her name.
[37] She says she was aware that Mrs Bourne paid for the Range Rover but it was a gift to Mr Bourne. She said she intends to file a formal notice claiming an interest in the Range Rover.
[38] As to the security interest, she said Mr Bourne asked his mother to register a security over the Range Rover to keep it safe as Mr Bourne was concerned the previous owner would be able to come and take the Range Rover from him.
[39] The Crown Solicitor’s position is that the evidence is not unequivocal that Mrs Bourne has the sole interest in the Range Rover and the evidence establishes that Mr Bourne also has an interest in the Range Rover. There is the following evidence.
Emails between Mr Bourne and Mrs Bourne
[40] Prior to visiting Mr Marzouk’s car sales yard, Mrs Bourne emailed Mr Bourne about vehicles he might be interested in, a list of Trade Me listings for vehicles and information about the Range Rover. (Mrs Bourne’s position was that, the reason she emailed her son about vehicles he might be interested in, was because she knew he was looking to purchase a replacement vehicle for the Mitsubishi Triton).
Mr Marzouk’s formal statement
[41] Marz Cars Limited was the previous registered owner of the Range Rover. In September 2020, Mr Marzouk, of Marz Cars, advertised the Range Rover for sale on Trade Me and Facebook. On 6 October 2020, Mr Marzouk received a message from a person using Mrs Bourne’s Facebook profile.
[42] When Detective Sergeant Beal spoke to Mr Marzouk, Mr Marzouk said he believed Mr Bourne purchased the Range Rover on 7 October 2020 because:
(a)he believed Mr Bourne contacted him on Facebook using Mrs Bourne’s Facebook profile (Mrs Bourne says she made the contact on Facebook);
(b)Mr Bourne test drove the Range Rover and Mrs Bourne did not. (Mrs Bourne says her son accompanied her on 6 and 7 October to Marz Cars. She accepts he test drove the Range Rover as she was relying on his expertise);
(c)Mr Bourne stated to Mr Marzouk he wanted the Range Rover during the test drive;
(d)Mr Bourne and Mrs Bourne discussed the Range Rover being purchased for Mr Bourne;
(e)Mr Bourne signed the sales document (Consumer Information Notice) for the vehicle on 7 October 2020 (Mrs Bourne says Mr Bourne signed that document because they experienced problems using her driver’s licence. It was for that reason that Mr Bourne’s driver’s licence was used, and he consequently signed the Consumer Information Notice). Mr Marzouk recalls there was an issue with the online registration;
(f)the Range Rover was paid for by Mrs Bourne from a trust account; and
(g)Mr Bourne drove the Range Rover from the premises after the vehicle was purchased on 7 October 2020. Mrs Bourne left in another vehicle, her Santa Fe. (Mrs Bourne accepts this but says she did not want to drive the Range Rover in peak hour traffic).
Puhoi Trust
[43] As to Mr Marzouk’s statement that the Range Rover was paid for by Mrs Bourne from a trust account, while Mr Marzouk’s bank statements are not available, Mrs Bourne’s bank statements record a narration made by her next to each of the two part-payments for the Range Rover of “Puhoi Trust”. At the relevant time Mr Bourne was a discretionary beneficiary of the Puhoi Trust. (He has since been removed as a beneficiary). Mrs Bourne’s position in response was this was simply part of an accounting exercise in relation to her property.
Police records
[44] The Range Rover has been involved in seven incidents, which incurred infringement notices from 27 October 2020 to 28 November 2020. These incidents occurred at night or early in the morning, so it is difficult to distinguish who was driving the Range Rover in the relevant photographs. Detective Sergeant Beal says he can identify Mr Bourne in a photograph related to an infringement notice number F50122343 on 28 November 2020 at 7.48 pm. Mrs Bourne accepts she did not incur any infringement notices.
[45] On 9 November 2020, Sergeant Bourne stopped Mr Bourne and Ms Tilsley in the Range Rover.
Text message data
[46] Detective Sergeant Beal refers to a text message dated 22 November 2020 at 9.21 am from Mr Bourne to Mrs Bourne. The message reads:
Hole hand between as hocks an wheel not the case with wheels he had on asso they are damaged by the car itself whenever go over a bump the range rover smacksinto the wheel .I could Neva get a wsrr a nt we ith those be wheels new 2 I have to huge gap…anywY need speaker box in ur rangerover to take with me please an thank tyre also please.
(emphasis added)
[47] Detective Sergeant Beal suggests that in the text Mr Bourne was explaining some of the problems with the Range Rover to Mrs Bourne and that he was asking Mrs Bourne for the speaker box from her other Range Rover (the old Range Rover). The inference the Court is asked to draw is that this text message shows the Range Rover was purchased for and accordingly belonged to Mr Bourne, while the old Range Rover belonged to Mrs Bourne.
[48] Detective Sergeant Beal also refers to a text message from that same day from Mr Bourne to Mr Marzouk at 7.23 pm. The text message says:
Hi brougjtRange rover.off u radar an sub have stopped.worked.figured id.uSeeingas u probably did.subswireing etc. Etc
[49] The inference the Court is asked to draw from this text message is that it supports the Crown Solicitor’s position that Mr Bourne was the intended owner of the Range Rover when it was purchased from Mr Marzouk. In the text message, Mr Bourne informs Mr Marzouk that he was experiencing problems with the Range Rover and he asks Mr Marzouk to look at those problems.
[50] A further text message on 23 November 2020 was from Mr Bourne to Mrs Bourne. The message said:
Thank u so much fuckn useless fukn mother […]
[…] U WIL HAVE NOTHING KARMA IS CMN FOR U. LIERTHIEF ALL ROUND PPP IECE OF SHIT AN RUN FROM THAT HOUSE CAUSE EVERYONE SEES.UR LIES.AM CRAP ..P.S I WAS.BEING CIVIL DIDN’T WANT DOGS IN HOT CAR ALL AFTER NOON WANT SPARE KEY FOR MY CAR DON’T TRUST U….U DESERVE EVERYTHING KARMA GOT INSTSLLED FOR U ..NO WORK EVERYDAY RIP US OFF AN INSURANCE COMPANY THAYS UR WORK REAL REASON UR SELLING WAIREWA IS IN DEBT UL
TO UR EYEBALLS LOL pathetic credit card urself sum friends (emphasis added)
[51] In this text Mr Bourne refers to “my car”. I accept this message refers to the Range Rover (Mrs Bourne said she had the spare key). In the text, Mr Bourne is asking Mrs Bourne to return the spare key. Mrs Bourne did not respond to the text message.
Other vehicles Mr Bourne controlled/owned
[52] Detective Sergeant Beal also provides evidence of previous vehicles Mr Bourne controlled and/or owned and which were registered under Mrs Bourne’s name. These included a Porsche Cayenne and another Range Rover.
Insurance
[53] On 13 October 2020, Mrs Bourne forwarded an email to her son, which recorded that her insurance policy had been updated to include the Range Rover. It was put to Mrs Bourne in cross-examination that she forwarded this email to her son because he had an interest in the Range Rover. She said she forwarded the email because her son had been involved in the purchase to help her. Further, in relation to insurance, it was put to Mrs Bourne that her son would have trouble getting insurance with his criminal history, and that was why the Range Rover was included in her insurance policy. Mrs Bourne acknowledged that her son was not able to get insurance but she said she put the Range Rover on her policy because it was her car.
Use of the Range Rover
[54] While Mrs Bourne refers to some use of the Range Rover by her, the evidence suggests that it was used predominantly by Mr Bourne.
[12] Detective Sergeant Beal swore an affidavit on 20 September 2023 in support of an instrument forfeiture order. Its contents, unsurprisingly, are largely repetitive of the material in his earlier affidavits filed in the case before Gordon J.
[13] Ms Tilsley’s documents repeat the evidence she gave before Gordon J. Her case is that the Range Rover was Mr Bourne’s, he gave it to her as a gift and so it is hers. Ms Tilsley says the vehicle was registered in her name to reflect that it was now hers. As a result, she has been sent infringement notices relating to the use of the vehicle.
[14] Among the documents Ms Tilsley handed to me in Court is a page from a police statement taken from a Selene Christine Jubinville. Ms Jubinville did not give evidence at the trial. One paragraph contains this passage:
Pam [Mrs Bourne] told us she bought her son a Land Rover to drive after his ute had been written off and that this was the vehicle that was located at a property in Baldrock Road after the shooting…
Discussion
[15] First, I am satisfied that the proceeds of the sale of the Range Rover can be the subject of an instrument forfeiture order.8 That is because the Range Rover was an instrument of crime. The term is defined in s 4 of the Act and s 5 of the CPRA and includes “property used (wholly or in part) to commit, or to facilitate the commission of, a qualifying instrument forfeiture offence”.
[16] In sentencing Mr Bourne, I recorded my finding that he did not travel to the scene of the murder intending to shoot the victim. I held that he formed his murderous intent once at the scene. So, prior to forming the murderous intent he did not use the Range Rover to facilitate the commission of the murder. But, the murder weapon was carried in the Range Rover. Once Mr Bourne formed his murderous intent he took the weapon from the vehicle so he could use it to shoot the victim. That means he used the Range Rover (wholly or in part) to commit, or to facilitate the commission of, the murder.
[17] The issue then becomes whether Mrs Bourne and/or Ms Tilsley have relevant interests in the Range Rover.
[18] On the balance of probabilities, I find that Mrs Bourne bought the Range Rover for her son to use, but not as a gift. Mrs Bourne paid $32,500 for the vehicle on 6 October 2020 and 7 October 2020.9 Mr Bourne took part in the purchase by signing the sales document because Mrs Bourne experienced issues with the online vehicle registration and the vehicle was for his use.
[19] I am influenced by the facts that upon purchase the vehicle was registered in Mrs Bourne’s name and she insured it. Later, she paid bills for its maintenance and repair (as did Mr Bourne).
[20] I acknowledge that Mrs Bourne registered the car in her name “T/A Puhoi Trust Ltd” and later (15 November 2020) began the process of registering a PPSR interest
8 Criminal Proceeds (Recovery) Act, s 142N.
9 Mrs Bourne paid $10,000 on 6 October and $22,500 on 7 October.
in the name of that Trust. But the money used to buy the Range Rover was hers, and not the Trust’s.
[21] The purchase price did not come from a savings account. Mrs Bourne borrowed the money using her overdraft facility. She has the obligation to repay her Bank.
[22] I find that Mrs Bourne has a relevant interest in the Range Rover as its legal owner.
[23] It follows that Ms Tilsley does not have a relevant interest in the Range Rover. On the balance of probabilities, I find that Mr Bourne did not gift her the vehicle. In my view, having quarrelled with Mrs Bourne on 14 November 2020 and been evicted by her, Mr Bourne registered the Range Rover in Ms Tilsley’s name because he feared his mother would claim it. But, if I am wrong in this, Mr Bourne did not own the vehicle and could not gift it.
[24] The evidence is that Mr Bourne continued to drive the Range Rover almost exclusively (during the trial there was evidence that earlier on the day of the murder Ms Tilsley drove the Range Rover with Mr Bourne as passenger because he was very affected by alcohol).
[25]Ms Tilsley had her own car which she continued to use.
[26] It is necessary to consider whether Mr Bourne had a relevant interest in the Range Rover. Section 142I of the Act provides that for the purposes of determining the nature and extent of a person’s interest in an instrument of crime, the Court may apply the provisions of s 17A of the CPRA. Those provisions include:
(1)If the High Court is satisfied that a [defendant] has effective control over property, the Court may, on an application made by the Commissioner, order that the property is to be treated as though the [defendant] had an interest in the property specified by the Court.
(2)An order under subsection (1) may—
(a)be made even if the [defendant] has no interest in the property; and
(b)specify an interest that differs from the interest that the [defendant] has in the property.
(3)Without limiting the generality of subsections (1) and (2), the Court may have regard to—
(a)shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in the property; and
(b)any trust that has a relationship to the property; and
(c)family, domestic, and business relationships between persons having an interest in the property or in companies of the kind referred to in paragraph (a) or in trusts of the kind referred to in paragraph (b), and any other persons.
[27] The fundamental question is whether, in fact, a defendant had the capacity to control, use, dispose of, or otherwise treat the property as his or her own.10 In the case of a family or domestic relationship, the court has to consider the nature and characteristics of the family ties or relationship, with the focus directed to the ability of the defendant, in all the circumstances, to influence or control the family member or other party in relation to the use or disposition of the property.11 Exclusive use of the property and the ability to restrict access does not necessarily equate with effective control. For example, in R v Van de Ven, the registered owner of a property was not considered to possess effective control because the land was subject to a mortgage and consequently it was the mortgagee who had effective control.12 Key to this finding was that:13
[51] The mortgage was repayable on demand and although demand was never made, it could have been made at any time. … The mortgage prevented [the defendant] from being able to use or dispose of the property as his own.
[28] I am not satisfied that Mr Bourne had effective control over the Range Rover. Although it had been bought for his use, he used it almost exclusively and there is no evidence Mrs Bourne ever drove it, exclusive access does not equate with effective control. The defendant must, generally, have both a possessory interest and some form
10 Commissioner of Police v Jiang [2020] NZHC 695 at [43]; Commissioner of Police v Read [2015] NZHC 2055 at [60]; and Solicitor-General v Bartlett [2008] 1 NZLR 87 (HC) at [27].
11 Solicitor-General v Huang HC Auckland CIV-2005-404-1538, 18 December 2007 at [73].
12 R v Van de Ven [2013] NZHC 479 at [49].
13 (Emphasis added).
of legal interest in the property — for example, by a beneficial interest14 or indirect ownership through a company15 — to have effective control. At no point did Mr Bourne possess any legal interest to the Range Rover. Mrs Bourne could have demanded the return of the vehicle at any time and Mr Bourne was not free to dispose of the Range Rover (see above [23]).
[29] I do not consider that the family relationship between Mrs Bourne and Mr Bourne affects this conclusion. There will be circumstances in which parents could be regarded as informal trustees or, more cynically, puppets for the child’s interests such that assets should be regarded as being in the control of the child. There is no evidence of this here, and Mrs Bourne’s efforts to lodge the Range Rover on the PPSR and re-registering it in her name when she found it had been transferred to Ms Tilsley would suggest the contrary.
[30] The Court may, but is not required to, decline making an order under s 142L(2) if it is satisfied that:
(a)the applicant was, in any respect, involved in the commission of the offence in respect of which forfeiture of the property is or was under consideration; or
(b)if the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value.
[31] I am satisfied that Mrs Bourne was not involved in the offending and acquired her interest in the Range Rover before the murder.
[32]Having determined that:
(a)the vehicle was an instrument of crime;
(b)Mrs Bourne has an interest in the Range Rover;
(c)Mr Bourne did not have effective control of the Range Rover; and
14 See, for example, Commissioner of Police v Ranga [2013] NZHC 745 at [30].
15 Commissioner of Police v Read, above n 10, at [93].
(d) neither of the exceptions in s 142L(3) apply –
I must:
(a)declare the nature, extent, and value of Mrs Bourne’s interest in the property; and
(b)make one of the orders in s 142L(2)(b).
[33] Mrs Bourne is an innocent party. The Range Rover is hers. The fact that her son used it to transport a weapon (unbeknownst to her), which he later used to murder a man, should not deprive Mrs Bourne of her asset. I see no reason why the Crown should take a proportion of the sale proceeds of the vehicle. Mr Bourne has no interest in the proceeds and forfeiting a part of them to the Crown would not deprive him of anything.
[34]I declare that Mrs Bourne has a 100 per cent interest in the Range Rover.
Result
[35] In light of the Range Rover having been sold and the proceeds being held by the Official Assignee, I direct that the Crown transfer the entire interest to Mrs Bourne. The Official Assignee must pay the proceeds of the sale to Mrs Bourne.
Brewer J
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