R v BOURNE [2023] NZHC 3117

R v BOURNE [2023] NZHC 3117 [6 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-044-3817[2023] NZHC 3117THE KINGvDESMOND LAWRENCE BOURNEHearing: 11 October 2023Appearances: D S Houghton for CrownB J Hunt for DefendantMrs Bourne in personMs Tilsley in personJudgment: 6 November 2023JUDGMENT OF BREWER J[Application for instrument forfeiture order]This judgment was delivered by me on 6 November 2023 at 10 amRegistrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell (Auckland) for CrownBarbara Hunt (Auckland) for Defendant(Copies to Mrs Bourne and Ms Tilsley)Introduction[1] Mr Bourne has been convicted of murder. He was driven to the scene of themurder in a black Ranger Rover motor car on 28 November 2020. The murderweapon, a semi-automatic rifle, was concealed under the rear passenger's seat. At thescene Mr Bourne retrieved the rifle and used it to shoot dead his victim. He then droveaway in the Range Rover.[2] The police found and seized the Range Rover. On 14 May 2021, Gordon Jmade restraining and sale orders in respect of the vehicle pursuant to the CriminalProceeds (Recovery) Act 2009 (the CPRA).1[3] The Range Rover was sold by the Official Assignee for $18,310.78. This sumis held in the Official Assignee's trust account.[4] After Mr Bourne was convicted, and before he was sentenced, the Crown fileda notice that the Court should consider making an instrument forfeiture order unders 142B of the Sentencing Act 2002 (the Act). Essentially, this was an application forforfeiture to the Crown of the sum held by the Official Assignee.[5] In my Minute of 4 August 2023, I said:2[4] I understand why the Crown has given this notice (there is a sum ofmoney which might go to the Crown rather than be reserved for a criminal). Iam also cognisant that resolving whether the money should be forfeited mightnot be straightforward. At the time of the murder, the Range Rover wasregistered in the name of Mr Bourne's partner and had previously beenregistered to his mother. I recall that at the trial Mrs Pamela Bourne made acomment to the effect that the Range Rover was hers and Mr Bourne's partner(Ms Serene Tilsley) had wrongly secured the registration in her name.[6] I decided I should consider making an instrument forfeiture order and I directedthe Crown to issue and serve Mrs Bourne and Ms Tilsley with notice3 that the sale1 Crown Solicitor at Auckland v Bourne [2021] NZHC 1078.2 R v Bourne HC Auckland CRI-2020-044-3817, 4 August 2023.3 Sentencing Act, s 142E.proceeds of the Range Rover may be made the subject of an instrument forfeiture orderand that they may apply for relief. I set a timetable.4[7] Ms Tilsley, representing herself, applied for relief. Mrs Bourne did not.However, Mrs Bourne appeared at the hearing and made an oral application for reliefexplaining she was unable to afford a lawyer to assist her. I ruled that I would waivetechnical requirements and treat both Mrs Bourne and Ms Tilsley (whose documentsdid not comply with the High Court Rules in a number of respects) as applicants forrelief. I would accept Ms Tilsley's documents and I would accept in this hearing thedocuments filed by Mrs Bourne in opposition to the Crown's applications determinedby Gordon J. Mrs Bourne told me her arguments had not changed.[8] Ms Houghton, for the Crown, acceded to this course of action.[9] This Judgment determines whether there should be an instrument forfeitureorder in respect of the proceeds of sale of the Range Rover, and the applications forrelief by Ms Tilsley and Mrs Bourne.Background[10] I respectfully adopt Gordon J's description of the applicable legislation:The legislative regime – instruments of crimeOverview[12] The [CPRA] and the Sentencing Amendment Act 2009 create aregime for the forfeiture of property that has been used to commit or facilitatethe commission of certain offences.5 Criminal forfeiture (as opposed to civilforfeiture) is dealt with by way of instrument forfeiture orders, made unders 142N of the Sentencing Act. Such orders are made following conviction andapply to property, wholly or in part, used to commit, or facilitate thecommission of, an offence punishable by five years' imprisonment or more.The regime is intended to have a "strongly deterrent object".64 In addition to the murder, Mr Bourne was convicted of wounding Mr Scott Fowles with recklessdisregard for safety. This occurred in the same incident as the murder. The conviction is also aqualifying instrument forfeiture offence because it is punishable by a maximum term ofimprisonment of seven years, s 4 of the Sentencing Act. But, no separate issue arises and so I willfocus on the conviction for murder.5 Criminal Proceeds (Recovery) Act , s 3; The Sentencing Amendment Act 2009 (2009 No 10), s 4.Section 4 provides that the purpose of that Act is to establish a regime for the forfeiture ofinstruments of crime as part of the sentencing process.6 Commissioner of Police v Sheehan (2011) 25 CRNZ 591 (HC) at [35].[13] Instruments of crime are to be contrasted with property acquired as aresult of significant criminal activity. Property acquired in the latter way maybe first restrained and then forfeited under profit forfeiture orders and assetsforfeiture orders, which are in all respects civil. Returning to instruments ofcrime, prior to an application for an instrument forfeiture order, the prosecutormay apply to restrain the property which is said to be an instrument of crimepursuant to s 26 of [the CPRA]. Restraint is not required prior to forfeiture.7But it is a step utilised to ensure the preservation of property pendingforfeiture.Instrument forfeiture[14] Sections 142A to 142Q of [the Act] provide for the forfeiture ofinstruments of crime as part of the sentencing process. Section 142N is thegoverning provision. That section relevantly provides:142N Instrument forfeiture orders(1) Following a hearing under section 142K, the court may, if it issatisfied that the property described in the notice given undersection 142B is an instrument of crime, order that theinstrument of crime or any part of it specified by the court beforfeited to the Crown.(2) In considering whether or not to make an instrument forfeitureorder under subsection (1) in respect of particular property, thecourt may have regard to—(a) any matter raised in an application for relief undersection 142J; and(b) the use that is ordinarily made, or was intended to bemade, of the instrument of crime; and(c) any undue hardship that is reasonably likely to becaused to any person by the operation of such anorder; and(d) the nature and extent of the offender's interest in theinstrument of crime (if any), and the nature and extentof any other person's interest in it (if any); and(e) in addition to the matters referred to in section 77(1)of the Criminal Proceeds (Recovery) Act 2009, anyother matter relating to the nature and circumstancesof the qualifying instrument forfeiture offence or theoffender, including the gravity of the qualifyinginstrument forfeiture offence.(3) A court that makes an instrument forfeiture order may, if itconsiders that it is appropriate to do so, by order,—(a) declare the nature, extent, and value of any person'sinterest in an instrument of crime; and7 Section 11.(b) declare that the instrument forfeiture order may, to theextent to which it relates to the interest, be dischargedunder section 85 of the Criminal Proceeds (Recovery)Act 2009.[15] Section 142J of [the Act] and s 77 of [the CPRA] provide for relief atthe instrument forfeiture stage for innocent third parties who claim an interestin the property that is the subject of an application for an instrument forfeitureorder.[16] Section 142L provides:142L Court may grant relief from instrument forfeiture order toapplicant who establishes interest in property(1) This section applies if—(a) a person applies to the court under section 142J forrelief from an instrument forfeiture order in respect ofan interest in property on the ground set out in section77(1)(a) of the Criminal Proceeds (Recovery) Act2009; and(b) the court is satisfied, following a hearing under section142K, that the applicant has established on the balanceof probabilities that the applicant—(i) has an interest in the property to which theinstrument forfeiture order relates; and(ii) was not involved in the qualifying instrumentforfeiture offence to which the order relates.(2) If this section applies, the court must make an order—(a) declaring the nature, extent, and value of theapplicant's interest in the property; and(b) either—(i) directing the Crown to transfer the interest tothe applicant; or(ii) declaring that there is payable by the Crownto the applicant an amount equal to the valueof the interest declared by the court; or(iii) directing that the interest not be included in aninstrument forfeiture order made in respect ofthe proceedings that gave rise to theapplication; or(iv) determining, in accordance with section142N, not to make an instrument forfeitureorder.(3) Despite subsection (2), the court may, but is not required to,refuse to make an order under subsection (2) if it is satisfiedthat—(a) the applicant was, in any respect, involved in thecommission of the offence in respect of whichforfeiture of the property is or was under consideration;or(b) if the applicant acquired the interest at the time of orafter the commission of the offence, the applicant didnot acquire the interest in the property in good faith andfor value.[17] As is apparent, "innocent interest" relief from forfeiture is mandatory.[18] Alternatively, relief against forfeiture may be granted where anapplicant claims they are likely to suffer undue hardship if an instrumentforfeiture order were to be made. Section 142M provides:142M Court may grant relief from instrument forfeiture order toapplicant on grounds of undue hardship(1) This section applies if a person applies to the court under section142J for relief from an instrument forfeiture order on the groundset out in section 77(1)(b) of the Criminal Proceeds (Recovery)Act 2009.(2) If the court is satisfied that, having regard to all thecircumstances, undue hardship is likely to be caused to theperson making the application or to another person (other thanthe offender), by the operation of an instrument forfeiture order,the court—(a) may order that the person is entitled to be paid aspecified amount out of the proceeds of sale of theproperty, being an amount that the court thinks isnecessary to prevent undue hardship to that person; and(b) if the person is under 18 years, may make additionalorders for the purpose of ensuring the properapplication of an amount to be paid to that person.(3) The circumstances a court may have regard to under subsection(2) include, without limitation,—(a) the use that is ordinarily made, or was intended to bemade, of the property that would be the subject of theinstrument forfeiture order; and(b) the nature and extent of any person's interest in theproperty; and(c) any other matter relating to the nature andcircumstances of the qualifying instrument forfeitureoffence to which the property relates.[11] I adopt also Gordon J's description of the evidence. It is the same evidencebefore me, save for a further affidavit of Detective Sergeant Beal and Ms Tilsley'sdocuments (which I will refer to later):[35] In support of her position that she has a 100 per cent interest in theRange Rover, Mrs Bourne relies on the following evidence:(a) She paid for the purchase of the Range Rover by way of twopayments on 6 and 7 November 2020. Mrs Bourne's evidenceis supported by bank statements showing an initial paymentof $10,000 on 6 October 2020 with the balance of $22,500paid on 7 October 2020, the day the Range Rover waspurchased from a Mr Marzouk. Mrs Bourne says that sheused her overdraft facility to pay for the Range Rover;(b) The Range Rover was registered in her name on 7 October2020. Mrs Bourne says she was unaware of the change ofregistration on 14 November 2020 to Ms Tilsley's name untilthe Police told her about that. Mrs Bourne said she believedit was likely that Ms Tilsley changed the registration after sheevicted Ms Tilsley and Mr Bourne from her address on14 November 2020. Mrs Bourne says that as soon as shebecame aware of what she describes as the "false"14 November 2020 registration, on 9 December 2020, she re-registered the vehicle in her name. On 16 February 2021,Ms Tilsley re-registered the Range Rover in her name.Mrs Bourne's position was that Ms Tilsley was not entitled todo so;(c) Mrs Bourne lodged a PPSR over the Range Rover on9 December 2020. However, she says she commenced theprocess on 15 November 2020, after she had evicted her sonand Ms Tilsley from the property. She said they departed inthe Range Rover and she wished to protect her 100 per centfinancial interest in it. She did not realise that the PPSRlodging process was not completed on 15 November 2020 andwhen it was brought to her attention by the Police, shecompleted the process on 9 December 2020. There isdocumentary evidence that supports Mrs Bourne's positionthat she commenced the process on 15 November 2020;(d) Mrs Bourne insured the Range Rover under her commercialmotor vehicle;(e) She arranged and paid for repairs to the Range Roversubsequent to its purchase;(f) Regarding her use of the Range Rover, she says that she keepsmore than one vehicle. One is for work, one for private useand a spare. She does not deny that Mr Bourne used theRange Rover during the period 7 October 2020 to 29 October2020. She says she did not need exclusive use of the RangeRover at that time. Her son's Mitsubishi Triton had beendamaged during 2020 and it was, in her words, "not operable"so she allowed Mr Bourne to use the Range Rover. But shesays at all times she remained the owner.[36] Ms Tilsley's evidence was that she and Mr Bourne began arelationship around the middle of 2020. She said that Mr Bourne handed hisMitsubishi Triton over to Mrs Bourne. In return, he became the owner of theRange Rover. She acknowledged there was an argument between Mrs Bourneand Mr Bourne on 14 November 2020. She says she was not involved in theargument but accepts she and Mr Bourne left Mrs Bourne's property that daywith Mr Bourne driving the Range Rover and she was in her vehicle. She saysMr Bourne gave the Range Rover to her and he was the one who registered itin her name on 14 November 2020. It was on the basis of that "gift" thatMs Tilsley changed the registration on 16 February 2021 from Mrs Bourne'sname back into her name.[37] She says she was aware that Mrs Bourne paid for the Range Rover butit was a gift to Mr Bourne. She said she intends to file a formal notice claimingan interest in the Range Rover.[38] As to the security interest, she said Mr Bourne asked his mother toregister a security over the Range Rover to keep it safe as Mr Bourne wasconcerned the previous owner would be able to come and take the RangeRover from him.[39] The Crown Solicitor's position is that the evidence is not unequivocalthat Mrs Bourne has the sole interest in the Range Rover and the evidenceestablishes that Mr Bourne also has an interest in the Range Rover. There isthe following evidence.Emails between Mr Bourne and Mrs Bourne[40] Prior to visiting Mr Marzouk's car sales yard, Mrs Bourne emailedMr Bourne about vehicles he might be interested in, a list of Trade Me listingsfor vehicles and information about the Range Rover. (Mrs Bourne's positionwas that, the reason she emailed her son about vehicles he might be interestedin, was because she knew he was looking to purchase a replacement vehiclefor the Mitsubishi Triton).Mr Marzouk's formal statement[41] Marz Cars Limited was the previous registered owner of the RangeRover. In September 2020, Mr Marzouk, of Marz Cars, advertised the RangeRover for sale on Trade Me and Facebook. On 6 October 2020, Mr Marzoukreceived a message from a person using Mrs Bourne's Facebook profile.[42] When Detective Sergeant Beal spoke to Mr Marzouk, Mr Marzouksaid he believed Mr Bourne purchased the Range Rover on 7 October 2020because:(a) he believed Mr Bourne contacted him on Facebook usingMrs Bourne's Facebook profile (Mrs Bourne says she madethe contact on Facebook);(b) Mr Bourne test drove the Range Rover and Mrs Bourne didnot. (Mrs Bourne says her son accompanied her on 6 and7 October to Marz Cars. She accepts he test drove the RangeRover as she was relying on his expertise);(c) Mr Bourne stated to Mr Marzouk he wanted the Range Roverduring the test drive;(d) Mr Bourne and Mrs Bourne discussed the Range Rover beingpurchased for Mr Bourne;(e) Mr Bourne signed the sales document (Consumer InformationNotice) for the vehicle on 7 October 2020 (Mrs Bourne saysMr Bourne signed that document because they experiencedproblems using her driver's licence. It was for that reason thatMr Bourne's driver's licence was used, and he consequentlysigned the Consumer Information Notice). Mr Marzoukrecalls there was an issue with the online registration;(f) the Range Rover was paid for by Mrs Bourne from a trustaccount; and(g) Mr Bourne drove the Range Rover from the premises after thevehicle was purchased on 7 October 2020. Mrs Bourne leftin another vehicle, her Santa Fe. (Mrs Bourne accepts this butsays she did not want to drive the Range Rover in peak hourtraffic).Puhoi Trust[43] As to Mr Marzouk's statement that the Range Rover was paid for byMrs Bourne from a trust account, while Mr Marzouk's bank statements arenot available, Mrs Bourne's bank statements record a narration made by hernext to each of the two part-payments for the Range Rover of "Puhoi Trust".At the relevant time Mr Bourne was a discretionary beneficiary of the PuhoiTrust. (He has since been removed as a beneficiary). Mrs Bourne's positionin response was this was simply part of an accounting exercise in relation toher property.Police records[44] The Range Rover has been involved in seven incidents, whichincurred infringement notices from 27 October 2020 to 28 November 2020.These incidents occurred at night or early in the morning, so it is difficult todistinguish who was driving the Range Rover in the relevant photographs.Detective Sergeant Beal says he can identify Mr Bourne in a photographrelated to an infringement notice number F50122343 on 28 November 2020at 7.48 pm. Mrs Bourne accepts she did not incur any infringement notices.[45] On 9 November 2020, Sergeant Bourne stopped Mr Bourne andMs Tilsley in the Range Rover.Text message data[46] Detective Sergeant Beal refers to a text message dated 22 November2020 at 9.21 am from Mr Bourne to Mrs Bourne. The message reads:Hole hand between as hocks an wheel not the case with wheels he hadon asso they are damaged by the car itself whenever go over a bump therange rover smacksinto the wheel .I could Neva get a wsrr a nt we iththose be wheels new 2 I have to huge gapanywY need speaker box inur rangerover to take with me please an thank tyre also please.(emphasis added)[47] Detective Sergeant Beal suggests that in the text Mr Bourne wasexplaining some of the problems with the Range Rover to Mrs Bourne andthat he was asking Mrs Bourne for the speaker box from her other RangeRover (the old Range Rover). The inference the Court is asked to draw is thatthis text message shows the Range Rover was purchased for and accordinglybelonged to Mr Bourne, while the old Range Rover belonged to Mrs Bourne.[48] Detective Sergeant Beal also refers to a text message from that sameday from Mr Bourne to Mr Marzouk at 7.23 pm. The text message says:Hi brougjtRange rover.off u radar an sub have stopped.worked.figuredid.uSeeingas u probably did.subswireing etc. Etc[49] The inference the Court is asked to draw from this text message is thatit supports the Crown Solicitor's position that Mr Bourne was the intendedowner of the Range Rover when it was purchased from Mr Marzouk. In thetext message, Mr Bourne informs Mr Marzouk that he was experiencingproblems with the Range Rover and he asks Mr Marzouk to look at thoseproblems.[50] A further text message on 23 November 2020 was from Mr Bourne toMrs Bourne. The message said:Thank u so much fuckn useless fukn mother [][] U WIL HAVE NOTHING KARMA IS CMN FOR U. LIERTHIEFALL ROUND PPP IECE OF SHIT AN RUN FROM THAT HOUSECAUSE EVERYONE SEES.UR LIES.AM CRAP ..P.S I WAS.BEINGCIVIL DIDN'T WANT DOGS IN HOT CAR ALL AFTER NOONWANT SPARE KEY FOR MY CAR DON'T TRUST U.U DESERVEEVERYTHING KARMA GOT INSTSLLED FOR U ..NO WORKEVERYDAY RIP US OFF AN INSURANCE COMPANY THAYS URWORK REAL REASON UR SELLING WAIREWA IS IN DEBT ULTO UR EYEBALLS LOL pathetic credit card urself sum friends(emphasis added)[51] In this text Mr Bourne refers to "my car". I accept this message refersto the Range Rover (Mrs Bourne said she had the spare key). In the text,Mr Bourne is asking Mrs Bourne to return the spare key. Mrs Bourne did notrespond to the text message.Other vehicles Mr Bourne controlled/owned[52] Detective Sergeant Beal also provides evidence of previous vehiclesMr Bourne controlled and/or owned and which were registered underMrs Bourne's name. These included a Porsche Cayenne and another RangeRover.Insurance[53] On 13 October 2020, Mrs Bourne forwarded an email to her son,which recorded that her insurance policy had been updated to include theRange Rover. It was put to Mrs Bourne in cross-examination that sheforwarded this email to her son because he had an interest in the Range Rover.She said she forwarded the email because her son had been involved in thepurchase to help her. Further, in relation to insurance, it was put to Mrs Bournethat her son would have trouble getting insurance with his criminal history,and that was why the Range Rover was included in her insurance policy.Mrs Bourne acknowledged that her son was not able to get insurance but shesaid she put the Range Rover on her policy because it was her car.Use of the Range Rover[54] While Mrs Bourne refers to some use of the Range Rover by her, theevidence suggests that it was used predominantly by Mr Bourne.[12] Detective Sergeant Beal swore an affidavit on 20 September 2023 in supportof an instrument forfeiture order. Its contents, unsurprisingly, are largely repetitive ofthe material in his earlier affidavits filed in the case before Gordon J.[13] Ms Tilsley's documents repeat the evidence she gave before Gordon J. Hercase is that the Range Rover was Mr Bourne's, he gave it to her as a gift and so it ishers. Ms Tilsley says the vehicle was registered in her name to reflect that it was nowhers. As a result, she has been sent infringement notices relating to the use of thevehicle.[14] Among the documents Ms Tilsley handed to me in Court is a page from apolice statement taken from a Selene Christine Jubinville. Ms Jubinville did not giveevidence at the trial. One paragraph contains this passage:Pam [Mrs Bourne] told us she bought her son a Land Rover to drive after hisute had been written off and that this was the vehicle that was located at aproperty in Baldrock Road after the shootingDiscussion[15] First, I am satisfied that the proceeds of the sale of the Range Rover can be thesubject of an instrument forfeiture order.8 That is because the Range Rover was aninstrument of crime. The term is defined in s 4 of the Act and s 5 of the CPRA andincludes "property used (wholly or in part) to commit, or to facilitate the commissionof, a qualifying instrument forfeiture offence".[16] In sentencing Mr Bourne, I recorded my finding that he did not travel to thescene of the murder intending to shoot the victim. I held that he formed his murderousintent once at the scene. So, prior to forming the murderous intent he did not use theRange Rover to facilitate the commission of the murder. But, the murder weapon wascarried in the Range Rover. Once Mr Bourne formed his murderous intent he took theweapon from the vehicle so he could use it to shoot the victim. That means he usedthe Range Rover (wholly or in part) to commit, or to facilitate the commission of, themurder.[17] The issue then becomes whether Mrs Bourne and/or Ms Tilsley have relevantinterests in the Range Rover.[18] On the balance of probabilities, I find that Mrs Bourne bought the Range Roverfor her son to use, but not as a gift. Mrs Bourne paid $32,500 for the vehicle on6 October 2020 and 7 October 2020.9 Mr Bourne took part in the purchase by signingthe sales document because Mrs Bourne experienced issues with the online vehicleregistration and the vehicle was for his use.[19] I am influenced by the facts that upon purchase the vehicle was registered inMrs Bourne's name and she insured it. Later, she paid bills for its maintenance andrepair (as did Mr Bourne).[20] I acknowledge that Mrs Bourne registered the car in her name "T/A Puhoi TrustLtd" and later (15 November 2020) began the process of registering a PPSR interest8 Criminal Proceeds (Recovery) Act, s 142N.9 Mrs Bourne paid $10,000 on 6 October and $22,500 on 7 October.in the name of that Trust. But the money used to buy the Range Rover was hers, andnot the Trust's.[21] The purchase price did not come from a savings account. Mrs Bourneborrowed the money using her overdraft facility. She has the obligation to repay herBank.[22] I find that Mrs Bourne has a relevant interest in the Range Rover as its legalowner.[23] It follows that Ms Tilsley does not have a relevant interest in the Range Rover.On the balance of probabilities, I find that Mr Bourne did not gift her the vehicle. Inmy view, having quarrelled with Mrs Bourne on 14 November 2020 and been evictedby her, Mr Bourne registered the Range Rover in Ms Tilsley's name because he fearedhis mother would claim it. But, if I am wrong in this, Mr Bourne did not own thevehicle and could not gift it.[24] The evidence is that Mr Bourne continued to drive the Range Rover almostexclusively (during the trial there was evidence that earlier on the day of the murderMs Tilsley drove the Range Rover with Mr Bourne as passenger because he was veryaffected by alcohol).[25] Ms Tilsley had her own car which she continued to use.[26] It is necessary to consider whether Mr Bourne had a relevant interest in theRange Rover. Section 142I of the Act provides that for the purposes of determiningthe nature and extent of a person's interest in an instrument of crime, the Court mayapply the provisions of s 17A of the CPRA. Those provisions include:(1) If the High Court is satisfied that a [defendant] has effective controlover property, the Court may, on an application made by theCommissioner, order that the property is to be treated as though the[defendant] had an interest in the property specified by the Court.(2) An order under subsection (1) may—(a) be made even if the [defendant] has no interest in the property;and(b) specify an interest that differs from the interest that the[defendant] has in the property.(3) Without limiting the generality of subsections (1) and (2), the Courtmay have regard to—(a) shareholdings in, debentures over, or directorships of, anycompany that has an interest (whether direct or indirect) in theproperty; and(b) any trust that has a relationship to the property; and(c) family, domestic, and business relationships between personshaving an interest in the property or in companies of the kindreferred to in paragraph (a) or in trusts of the kind referred toin paragraph (b), and any other persons.[27] The fundamental question is whether, in fact, a defendant had the capacity tocontrol, use, dispose of, or otherwise treat the property as his or her own.10 In the caseof a family or domestic relationship, the court has to consider the nature andcharacteristics of the family ties or relationship, with the focus directed to the abilityof the defendant, in all the circumstances, to influence or control the family memberor other party in relation to the use or disposition of the property.11 Exclusive use ofthe property and the ability to restrict access does not necessarily equate with effectivecontrol. For example, in R v Van de Ven, the registered owner of a property was notconsidered to possess effective control because the land was subject to a mortgage andconsequently it was the mortgagee who had effective control.12 Key to this findingwas that:13[51] The mortgage was repayable on demand and although demand wasnever made, it could have been made at any time. The mortgage prevented[the defendant] from being able to use or dispose of the property as his own.[28] I am not satisfied that Mr Bourne had effective control over the Range Rover.Although it had been bought for his use, he used it almost exclusively and there is noevidence Mrs Bourne ever drove it, exclusive access does not equate with effectivecontrol. The defendant must, generally, have both a possessory interest and some form10 Commissioner of Police v Jiang [2020] NZHC 695 at [43]; Commissioner of Police v Read [2015]NZHC 2055 at [60]; and Solicitor-General v Bartlett [2008] 1 NZLR 87 (HC) at [27].11 Solicitor-General v Huang HC Auckland CIV-2005-404-1538, 18 December 2007 at [73].12 R v Van de Ven [2013] NZHC 479 at [49].13 (Emphasis added).of legal interest in the property — for example, by a beneficial interest14 or indirectownership through a company15 — to have effective control. At no point didMr Bourne possess any legal interest to the Range Rover. Mrs Bourne could havedemanded the return of the vehicle at any time and Mr Bourne was not free to disposeof the Range Rover (see above [23]).[29] I do not consider that the family relationship between Mrs Bourne andMr Bourne affects this conclusion. There will be circumstances in which parents couldbe regarded as informal trustees or, more cynically, puppets for the child's interestssuch that assets should be regarded as being in the control of the child. There is noevidence of this here, and Mrs Bourne's efforts to lodge the Range Rover on the PPSRand re-registering it in her name when she found it had been transferred to Ms Tilsleywould suggest the contrary.[30] The Court may, but is not required to, decline making an order under s 142L(2)if it is satisfied that:(a) the applicant was, in any respect, involved in the commission of theoffence in respect of which forfeiture of the property is or was underconsideration; or(b) if the applicant acquired the interest at the time of or after thecommission of the offence, the applicant did not acquire the interestin the property in good faith and for value.[31] I am satisfied that Mrs Bourne was not involved in the offending and acquiredher interest in the Range Rover before the murder.[32] Having determined that:(a) the vehicle was an instrument of crime;(b) Mrs Bourne has an interest in the Range Rover;(c) Mr Bourne did not have effective control of the Range Rover; and14 See, for example, Commissioner of Police v Ranga [2013] NZHC 745 at [30].15 Commissioner of Police v Read, above n 10, at [93].(d) neither of the exceptions in s 142L(3) apply –I must:(a) declare the nature, extent, and value of Mrs Bourne's interest in theproperty; and(b) make one of the orders in s 142L(2)(b).[33] Mrs Bourne is an innocent party. The Range Rover is hers. The fact that herson used it to transport a weapon (unbeknownst to her), which he later used to murdera man, should not deprive Mrs Bourne of her asset. I see no reason why the Crownshould take a proportion of the sale proceeds of the vehicle. Mr Bourne has no interestin the proceeds and forfeiting a part of them to the Crown would not deprive him ofanything.[34] I declare that Mrs Bourne has a 100 per cent interest in the Range Rover.Result[35] In light of the Range Rover having been sold and the proceeds being held bythe Official Assignee, I direct that the Crown transfer the entire interest to Mrs Bourne.The Official Assignee must pay the proceeds of the sale to Mrs Bourne.________________________________Brewer J