Telke v Police

[2019] NZHC 279

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-476-000008

[2019] NZHC 279

BETWEEN

JESSE ROBERT TELKE

Appellant

AND

POLICE

Respondent

AND

JOSHUA DOUGLAS MARTIN

Defendant

Hearing:	26 February 2019
Appearances:	J R Telke (Appellant) in person H V Bennett for Respondent No appearance for Defendant
Judgment:	26 February 2019

ORAL JUDGMENT OF OSBORNE J

Introduction

[1]    Jesse Telke appeals an order of Judge J E Maze made on the 18th of July 2018 (the confiscation order) whereby a Holden motor vehicle with registration no. APA788 (the vehicle) was ordered confiscated.

[2]    The vehicle was at the time of the confiscation order registered in the name of Joshua Martin. Mr Martin pleaded guilty to a charge that he had on the 12th of July 2018 driven the vehicle on a road while his breath alcohol level exceeded the statutory limit.

TELKE v POLICE [2019] NZHC 279 [26 February 2019]

[3]    In the absence of any ground of hardship raised under s 129(4) of the Sentencing Act 2002, Judge Maze was obliged because of Mr Martin’s offending background to make the confiscation order pursuant to s 129(3).

This appeal

[4]Mr Telke appeals the confiscation order on the grounds that:

(a)he did not own or have an interest in the vehicle at the time the offence was committed by the defendant;

(b)he bought the car from the defendant on the 12th of July 2018, although he did not change the registered ownership until the 18th of July 2018; and

(c)confiscation of the vehicle would cause undue hardship to him, he having incurred significant cost in buying the vehicle.

The jurisdiction

[5]    Section 129EA(1) of the Act permits a third party to appeal a confiscation order in prescribed circumstances:

129EA Appeal against confiscation by third party

(1) If the court orders the confiscation of a motor vehicle under section 128, 129, or 129A, a person (other than the offender or, as the case may be, the substitute for the offender) may, within 20 working days after the date of the order, or within any further time that the appropriate court allows, appeal to the appropriate court against the order on the ground that the confiscation is causing, or will cause, undue hardship to the appellant or any other person (other than the offender or, as the case may be, the substitute for the offender).

[6]    For the Police, Ms Bennett submits that, given the absence at the time of the sentence hearing of any evidence or submissions as to ownership issues and hardship, it is appropriate that the Court deals with this appeal de novo. I accept that such an approach is appropriate in this case.

The evidence

The vehicle’s ownership history

[7]    On this appeal, Mr Telke has given evidence himself. He was briefly cross- examined by Ms Bennett. I found Mr Telke’s evidence to be straightforward and frank. He was a credible witness. Ms Bennett responsibly has not suggested otherwise.

[8]    The history from Mr Telke’s perspective can be briefly summarised. He had previously, until shortly before his purchase of the vehicle, had another vehicle which had been the subject of a crash. He had been paid $2,000 on account of the value of his old vehicle. He put up a Facebook post looking for a replacement vehicle for similar cost. Through that means, he came into contact with Josh Martin, a person who is not a close friend but with whom Mr Telke has had some contact through lane meets.

[9]    Mr Martin explained that he had the vehicle for sale. The first contact between the two, evidenced by a screen dump from his Facebook post, was on the 11th of July 2018.   The contact through Facebook continued into 12th  of July.    On that day,     Mr Telke met Mr Martin after work, took the vehicle for a test drive, liked it and agreed to purchase it from Mr Martin. He paid $2000 cash for the car and took it that day, intending to register the change of ownership the next day.

[10]   In answering questions put to him  by  Ms  Bennett,  Mr  Telke  stated  that Mr Martin did not make him aware of the matters confronting Mr Martin in the District Court or in relation to the car. It is clear that Mr Telke simply thought that he was buying a car on the open market in usual circumstances.

[11]   Mr Telke did not get around to registering the change of ownership the next day. On the following day, his partner’s brother unfortunately died and matters further slipped. Mr Telke eventually got around to registering the change of ownership on  18 July 2018. He was unaware that on that very day Judge Maze inevitably made the confiscation order in relation to the vehicle in the context of sentencing Mr Martin.

[12]   Shortly before Mr Telke effected the change of registration details, he had received contact from Mr Martin which made him aware that there was something going on with the motor vehicle as Mr Martin referred to the fact that he was going through a Court process in relation to the vehicle and that it was in Mr Telke’s interest to get on and effect the registration. That said, I accept Mr Telke’s evidence that he has been unaware of those circumstances at the time he made the purchase on 12 July 2018.

[13]   On 23 July 2018, the Ministry of Justice sent to Mr Telke a notice of the confiscation of the motor vehicle, evidently because the Ministry had become aware of Mr Telke’s registration of ownership details. At that point, Mr Telke took some advice and filed this appeal on his own behalf.

The law relevant to the timing of ownership

[14]   Ms Bennett made succinct submissions as to the law relating to the timing of ownership which I accept reflect the correct position. In particular, Ms Bennett’s written synopsis recorded:

[7]A vehicle will only be confiscated if the defendant “is the owner of    the vehicle or has an interest in the vehicle at the time of conviction”. In Devi v Police the Court confirmed that a vehicle must be owned by the offender at the time of sentencing for it to be confiscated.¹

…

9.If the defendant was the owner of the vehicle at the time of the   offending, s 131 of the Sentencing Act 2002 sets out that disposition of the motor vehicle by the defendant must be made with a bona fide intention to dispose permanently of his or her ownership or interest in the vehicle. The onus is on the appellant to satisfy the Court that, on the balance of probabilities, the disposition of the vehicle was bona fide.

[15]   In this case, I am satisfied on the evidence that Mr Telke has given that the ownership of the vehicle did pass from Mr Martin to Mr Telke on 12 July 2018. In particular, Mr Martin intended to permanently dispose of his ownership of the vehicle to Mr Telke. As that occurred before Mr Martin’s sentencing on 18 July 2018, the law

1      Devi v Police [2014] NZHC 53.

as established in Antcliff v Police2 and Devi v Police3 means that the confiscation order would not have been made had the evidence which I have now heard been put before Judge Maze at the time of sentencing. In these circumstances, Mr Telke is entitled to succeed on this appeal. It is unnecessary to examine issues such as the undue hardship which Mr Telke asserts he would have suffered had the confiscation order remained effective.

My order

[16]   The appeal is allowed. The confiscation order made in the District Court on 18 July 2018 is quashed.

Osborne J

Solicitors:

Gresson Dorman & Co, Timaru Copies to: Mr Telke, Appellant

Mr Martin, Defendant

2      Antcliff v Police HC Palmerston North CRI-2009-454-23, 15 December 2009 at [4].

3      Devi v Police [2014] NZHC 53.