R v Corless - [2014] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2009-090-2181

[2014] NZHC 1955

BETWEEN
THE QUEEN

Applicant

AND

SCOTT JAMES CORLESS

Respondent

Hearing: 30 May 2014

Appearances:

M Walker for the Applicant B Sellars for the Respondent

S Jefferson QC and S Patel for Laura Corless G Satherly for Nikole, Ryan and Tane Corless

Judgment:

20 August 2014

REASONS JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 20 August 2014 at 9.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel/Solicitors:
M Walker, Meredith Connell, Auckland B Sellars, Barrister, Auckland
S Jefferson QC, Barrister, Auckland G Satherly, Barrister, Auckland

R v CORLESS [2014] NZHC 1955 [20 August 2014]

[1] Mr Scott Corless was for sentence on 30 May 2014 having been convicted of a range of methamphetamine related charges, including manufacturing. As part of the sentencing process the Commissioner of Police had applied for an instrument forfeiture order relating to a property located at 61 Otitori Bay Rd, Titirangi, where Mr Corless’ manufacturing activity took place. The property is owned by Mr Corless’ family trust but he had accepted that he has “effective control” over it.

[2] Applications for relief from forfeiture had previously been made by Mr Corless’ ex-wife, Laura, and two of his children, Luke and Casey. The applications for relief were based on their asserted interests in the property which (they said) the Court was required to recognise under s 142L of the Sentencing Act 2002 (the SA). In my decision dated 21 October 2013 I found that Laura had an interest in the property which I valued at 50 per cent of the market value.1 But I held that Casey and Luke did not have a recognisable interest.

[3] Before Mr Corless could be sentenced, however, a further application for relief from forfeiture under s 142L was then made on behalf of Mr Corless’ niece and nephews (Nikole, Ryan and Tane Corless).2 Their claim to an interest in the Otitori Bay Rd property was made:

… on the ground that the applicants directly or indirectly contributed to the purchase of the property at 61 Otitori Bay Rd because $128,000 that they inherited from their Grandmother Joyce Corless in 1999 was used by Scott Corless and assisted him to purchase the property.

[4]The extent or value of the claimed interest was said to be:

… $210,500 together with interest pursuant to that sum from 1 June 2005 until the date of payment; or such other sum as determined by the court; less the sum of $31,075 already received by Ryan Corless.

[5] The $210,500 sum is said to comprise the applicants’ original $128,000 inheritance together with half of a $165,000 overall increase in “trust account funds”.3

1 R v Corless [2013] NZHC 2735.
2 They had not filed an application for relief earlier because, although they were aware of the parallel and yet to be determined civil forfeiture proceedings, the Crown had not served the application for…

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 Corless

Details

AGLC: R v Corless [2014] NZHC 1955
Case: [2014] NZHC 1955
Decision Date: 20 August 2014

CaseChat Overview and Summary

Scott James Corless was sentenced on drug related charges. The Crown applied for an instrument forfeiture order relating to a property located at 61 Otitori Bay Road, Titirangi, where Corless’ drug manufacturing activity took place. Corless' niece and nephews (Nikole, Ryan and Tane Corless) applied for relief from forfeiture on the basis that $128,000 that they inherited from their Grandmother Joyce Corless in 1999 was used by Scott Corless and assisted him to purchase the property. The court considered whether it was possible to trace the misappropriated funds to the Otitori Bay Road property. The court was not satisfied that the applicants could trace their inheritance funds to the Otitori Bay Road property with sufficient specificity to be able to declare the nature, extent, and value of the applicants' interest in the property. The court held that it could not grant relief from forfeiture.

Orders