R v Bourne - [2023] NZHC 3117

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bourne

Details

AGLC: R v Bourne [2023] NZHC 3117
Case: [2023] NZHC 3117
Decision Date: 6 November 2023

CaseChat Overview and Summary

Desmond Lawrence Bourne has been convicted of murder. The Crown has applied for an instrument forfeiture order in respect of the proceeds of sale of a black Ranger Rover motor car, which was used as an instrument of the crime. The vehicle was registered in the name of Bourne's partner, Serene Tilsley, but Bourne's mother, Pamela Bourne, claims the vehicle was hers. Tilsley claims Bourne gifted the vehicle to her. The Crown claims that Bourne also has an interest in the vehicle. The court must determine whether the Crown can forfeit the proceeds of the sale of the vehicle to the Crown and if so, whether Pamela Bourne and/or Serene Tilsley have an interest in the vehicle which should be protected from forfeiture. The court found that the vehicle was an instrument of the crime. Pamela Bourne was the legal owner of the vehicle and had a 100 per cent interest in it. Serene Tilsley did not have an interest in the vehicle as Bourne did not own it and therefore could not gift it to her. The court found that Bourne did not have effective control over the vehicle as he did not have a possessory interest or any form of legal interest in the vehicle. The court held that Pamela Bourne was an innocent party and the fact that her son used the vehicle to transport a weapon, which he later used to murder a man, should not deprive her of her asset. The court directed that the Crown transfer the entire interest in the vehicle to Pamela Bourne.

Orders