JUDGMENT OF THE COURT

ATHE APPEAL IS ALLOWED.
BWe order that the foreign restraining order issued by the Regional Court in Wloszczowa, 2^nd Penal Department, Kielce, Republic of Poland, against the respondent on 26 June 2006 be registered in New Zealand under the Mutual Assistance in Criminal Matters Act 1992.
CTHE RESPONDENT MUST PAY THE APPELLANT COSTS FOR A STANDARD APPEAL ON A BAND A BASIS AND USUAL DISBURSEMENTS.

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REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents

Para No

INTRODUCTION  [1]
EVENTS TO DATE  [3]
THE CASE RETURNS TO THE HIGH COURT  [15]
SUBMISSIONS ON APPEAL  [18]
DISCUSSION  [21]
           THE INTERNATIONAL CONTEXT  [23]
           THE CHARACTER OF A FOREIGN RESTRAINING ORDER AND OF A REGISTERED ORDER    [26]
           THE PUBLIC PROSECUTOR’S ORDER NISI  [28]
           THE POLICE COURT’S ORDER ABSOLUTE  [29]
Comment on the High Court decision  [31]
           Our approach  [41]
Decision[49]

Introduction
[1]       This case is before this Court for a second time. In R v Bujak [2007] NZCA 347 this Court allowed an appeal from a decision of the High Court to register an order under the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and referred the case back to the High Court. Clifford J declined to register the order on 16 November 2007 and the Solicitor-General has appealed. Substantially more evidence is now before the Court.
[2]       Under the MACMA, a “foreign restraining order” can be registered so that it takes effect in the same manner as if it were a domestic restraining order made under the Proceeds of Crime Act 1991 (PCA). The central issue in this case is whether Polish orders made in relation to the respondent’s property should be characterised as foreign restraining orders.
Events to date
[3]       The respondent is suspected of criminal offending in Poland, including what in New Zealand would constitute obtaining money and property by false pretences and theft by conversion of a number of large commercial vehicles. The offending is said to involve more than US$1m. There is evidence that the respondent disposed of his assets in Poland and imported the proceeds of his crimes into New Zealand where he opened six bank accounts and acquired a property in Christchurch. The Solicitor-General alleges that the credits in the accounts and the property are the proceeds of the alleged offending in Poland.
[4]       Acting under s 55 of the MACMA, the Central Authority of the Republic of Poland requested the Attorney-General to assist with the enforcement of an order issued by the Regional Court in Wloszczowa (the Polish Court) on 26 June 2006. That decision granted “a motion by the District Public Prosecutor in Kielce for granting an…

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 Solicitor-General v Bujak

Details

AGLC: Solicitor-General v Bujak [2008] NZCA 334
Case: [2008] NZCA 334
Decision Date: 1 September 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal brought by the Solicitor-General against a decision of the High Court to not register a foreign restraining order issued by a Polish court against Slawomir Bujak. The central issue in the case was whether the Polish orders made in relation to Bujak's property should be characterised as foreign restraining orders under the Mutual Assistance in Criminal Matters Act 1992. The Court allowed the appeal, holding that the Polish orders satisfied the definition of a foreign restraining order and should be registered in New Zealand. The Court rejected the High Court's reasoning that the Polish order was not a "restraint" but a "seizure" of property and held that the evidence established that the Polish order did restrain Bujak from dealing with his property. The Court of Appeal ordered that the Polish restraining order be registered in New Zealand, and the respondent was to pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

Orders