R v Karpavicius

[2016] NZHC 2433

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001056 [2016] NZHC 2433

UNDER	The Crown Proceedings Act 1950
BETWEEN	THE QUEEN Applicant
AND	ROKAS KARPAVICIUS Respondent

Hearing:	12 October 2016
Appearances:	AMR Park for the Applicant No appearance by or on behalf of the Respondent
Judgment:	12 October 2016

ORAL JUDGMENT OF MUIR J

Solicitors:

AMR Park, Crown Solicitors, Auckland

Copy To:           Respondent

R v KARPAVICIUS [2016] NZHC 2433 [12 October 2016]

[1]      The Crown applies for an order that satisfaction be entered upon judgment. That application arises out of a now very historic breach of bail conditions by Mr Karpavicius.

[2]      Mr Karpavicius was arrested in August 1999 on charges of conspiracy to import class A controlled drugs and supply of class B controlled drugs.   Bail was ultimately granted to him with a sum of $100,000 paid into the High Court by way of recognisance for his release from custody.

[3]      Mr Karpavicius subsequently breached his bail conditions by absconding prior to trial and in those circumstances automatically forfeited his recognisance.

[4]      A formal procedure known as estreatment is required to effect payment of that sum from the High Court to the Crown.  The procedure to be followed where an estreatment application is made has recently been set out in the decision of R v Wu.1

In short, the recognisance (that is the surety) is forfeited immediately upon the occurrence  of  the  breach  of  bail.     Upon  forfeiture  a  judge  may  cause  the recognisance to be estreated, that is to take the forfeited recognisance for the benefit of the State.  A judge must then certify that the recognisance has been forfeited for the benefit of the State. The certificate of forfeiture is then delivered to the Attorney- General or his nominee, to sign a final judgment in the High Court for the amount of the recognisance (together with costs).   That final judgment is a civil judgment enforceable against the defendant and any surety.

[5]      Once the judgment has been signed a party seeking relief from forfeiture may then apply for an order that the judgment not be satisfied (under s 23 of the Crown Proceedings Act 1950). This is usually on the basis that:

(a)       The person has paid the full amount of the judgment; or

(b)The person has taken all reasonable steps to ensure that the accused complied with the bail conditions; or

1      R v Wu HC Auckland CRI-2006-019-8458, 1 December 2011.

(c)      According to equity, good conscience and the real merits and justice of the case, the person ought not be required to satisfy the forfeiture judgment.

[6]      In the present proceedings the High Court certified on 18 July 2016 that forfeiture of the recognisance had occurred and signed a final judgment in favour of the Crown in the sum of $100,000 plus all and any interest earned on the sum since its deposit, together with a sum not exceeding $10 for costs.

[7]      On 28 July 2016 that judgment was served on Mr Karpavicius who remains in custody at the South Auckland Corrections Facility in Wiri.

[8]      On the same date Mr Karpvicius provided an acknowledgment that he had received the judgment of Lang J relating to “a forfeiture order for $100,000 made against me” and that he “did not intend on challenging this judgment”.

[9]      The current application, was served on Mr Karpavicius at the same facility on

20 September 2016.  The application served on him identified today’s date as that for a hearing of the application (the original hearing date of 21 September having been enlarged by order of Courtney J on 19 September 2016 in order to facilitate service).

[10]     Mr Karpavicius has not taken any steps in relation to the application, nor has he communicated further with the applicant.

[11]     I am satisfied on the basis of his advice as of 28 July 2016 that his failure to take any steps reflects his intention not to in any further way challenge the forfeiture of the surety.

[12]   Accordingly, I am satisfied that the orders sought by the Crown are appropriately made.

Result

[13]     I order that:

(a)      Satisfaction be entered upon the judgment dated 18 July 2016 for the sum of $100,000 plus all and any interest earned on that sum since deposit.

(b)That the Registrar of this court is directed to release to the Crown the sum of $100,000 plus all or any interest earned on that sum since its

deposit into this court.

Muir J