Tonkin v Police

[2018] NZHC 1321

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

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

CRI-2018-476-000002

[2018] NZHC 1321

BETWEEN

MICHAEL ALAN TONKIN

Appellant

AND

NEW ZEALAND POLICE

TRISTIAN CECIEL GRANT BECKETT

Respondents

Hearing:

Determined on the Papers

Counsel:

L M Laming for Appellant

H V Bennett for New Zealand Police Respondent No Appearance for TCG Beckett Respondent

Judgment:

6 June 2018

JUDGMENT OF GENDALL J

[1]                  This is an appeal against an order for confiscation of a motor vehicle by a third party, the appellant Michael Alan Tonkin.

[2]On Friday 25 May 2018, this appeal was called before me.

[3]                  At that time, with the consent of counsel for the parties, the appeal was adjourned to a new call date on 14 June 2018 at 9 a.m. by way of a telephone conference. A direction was also given that counsel were to file a joint memorandum (or individual memoranda if they could not agree) advising as to future progress with this appeal, given that they had advised there was a possibility that the Police might concede the appeal.

[4]Counsel for the parties have now filed a joint memorandum dated 1 June 2018.

TONKIN v NZ POLICE [2018] NZHC 1321 [6 June 2018]

[5]                 That memorandum noted the following:

1.…The appellant appealed the Order on the following grounds:

(a)The appellant did not own or have an interest in the motor vehicle, registration number AUA599 at the time the offence was committed by the defendant, Tristian Ceciel Grant Beckett, on 7 October 2017;

(b)The appellant did not acquire ownership of the vehicle until 8 January 2018 at which time registered ownership of the motor vehicle had changed several times since the date of the offence;

(c)The appellant otherwise has no personal knowledge or relationship with the defendant and had no involvement in the offending;

(d)Confiscation of the motor vehicle will cause undue hardship to the appellant, who has incurred significant cost in the purchase and maintenance of the motor vehicle.

2.The appeal was adjourned part heard for the following reasons:

(a)Police had filed submissions on 24 May 2018 in response to submissions filed by the appellant on 23 May 2018. The police opposed the appeal on the basis there was insufficient evidence before the Court to allow the appeal.

(b)Following police submissions, the appellant provided a sworn affidavit and appendices to the Court as evidence to support the grounds of appeal set out at paragraph 1(a)-(d) above on 24 May 2018;

(c)On 24 May 2018 after receiving the affidavit, police made further enquiries regarding registration of the vehicle’

(d)Police had not been able to make further enquiries with the New Zealand Transport Agency regarding registration of the vehicle in time before the appeal was heard.

3.On 29 May 2018, information was obtained from NZTA which shows that Mr Beckett has never been a registered owner of the vehicle (attached) and Mr Tonkin was the bona fide owner of the vehicle at the time of sentencing. Therefore, it is submitted that the Order was invalid.

4.On that basis, the police concede to the appeal being allowed.

[6]                  Given these comments in the Joint Memorandum of Counsel dated 1 June 2018 and the acknowledgment that the Police now concede this appeal being allowed, this effectively brings this matter to an end.

[7]                  The appeal is allowed and the Order for confiscation of the motor vehicle Ford registration number AUA599 is now quashed.

[8]The call of this matter on 14 June is vacated.

...................................................
Gendall J

Solicitors:

Berry & Co, Oamaru

Gresson Dorman & Co, Timaru Copy to Respondent Mr Beckett