COMMISSIONER OF NEW ZEALAND POLICE v MCLEAN [2022] NZHC 2634

COMMISSIONER OF NEW ZEALAND POLICE v MCLEAN [2022] NZHC 2634 [12 October 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2021-412-19[2022] NZHC 2634UNDER The Criminal Proceeds (Recovery) Act 2009IN THE MATTER of an application pursuant to ss 22 and 25 ofthe ActBETWEEN COMMISSIONER OF NEW ZEALANDPOLICEApplicantAND DONALD JOHN MCLEANFirst RespondentAND LISA MELANIE MCLEANSecond RespondentAND TRUSTEES OF THEMCLEAN-MCGOWAN FAMILY TRUSTThird RespondentAND AYDEN PAUL WATTFourth RespondentAND NICHOLAS EDWARD SUSZKOFifth Respondent(Parties continued over)Hearing: On the papersAppearances: R D Smith for ApplicantG A Paine for Julie-Anne Jones (Interested Party)Judgment: 12 October 2022JUDGMENT OF DOOGUE JAND SARAH JONESSixth RespondentAND JULIE-ANNE JONESInterested PartyAND WESTPAC BANK NZ LTDInterested PartyAND KIWIBANK LTDInterested PartyThis judgment was delivered by me on 12 October 2021 at 3.15 pm pursuant to Rule11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The substantive issue in this case is an application pursuant to ss 22 and 25 ofthe Criminal Proceeds (Recovery) Act 2009 (the Act) for restraining and forfeitureorders of a variety of different property[2] Specifically, the Commissioner seeks a restraining order concerning theinterests in the residential property at 49C Bath Street, Brighton, Dunedin describedin the record of title as Lot 2 DP9931, excluding the interests of Westpac Bank NZ Ltdas mortgagee pursuant a Registered Mortgage 11656934.3 (Bath Street).[3] The registered proprietors are Sarah Jones, the sixth respondent, andJulie-Anne Jones, an interested party. Julie-Anne Jones is the mother of Sarah Jonesand Jacob Jones.[4] Sarah Jones and Jacob Jones, together with Ayden Watt, have pleaded guiltyto:(a) conspiring to sell cannabis;1(b) seven charges of sells cannabis plant;2(c) offering to sell cannabis plant;3 and(d) (Ayden Watt only) possession of cannabis for sale.4Application[5] Julie-Anne Jones has applied, pursuant to s 30 of the Act for an order excludingany order restraining her severable interest in Bath Street.[6] The grounds on which the order is sought are as follows:1 Misuse of Drugs Act 1975, s 6(2A): maximum penalty seven years' imprisonment.2 Sections 6(1)(e) and (2)(c): maximum penalty eight years' imprisonment.3 Sections 6(1)(d) and (2)(c): maximum penalty eight years' imprisonment.4 Sections 6(1)(f) and 6(2)(c): maximum penalty eight years' imprisonment.(a) Julie-Anne Jones as an interested party has a severable interest in theproperty to be restrained in that she is the owner of an undividedone-half share of the property together with Sarah Jones;(b) there is no evidence linking and/or suggesting that Julie-Anne Joneshas any involvement with the matter before the court, apart from theco-ownership of the said property; and(c) that without the severable interest being removed from the property tobe restrained the interested party would suffer adverse hardship that isreasonably likely to be caused to her with her interest in the propertybeing her only asset.Current application[7] The Commissioner seeks to introduce the convictions of Sarah Jones,Jacob Jones and Ayden Watt, as well as the summary of facts that forms the basis ofthose convictions, into evidence on the basis that they are relevant to the determinationof Julie-Anne Jones' application.[8] Julie-Anne Jones' position is that she has no knowledge of any of the mattersthat led to the convictions against Sarah Jones, Jacob Jones and Ayden Watt.[9] Section 47 of the Evidence Act 2006 provides that a criminal conviction isadmissible in civil proceedings if relevant to an issue in those proceedings.Specifically, s 47 relevantly states:47 Conviction as evidence in civil proceedings(1) When the fact that a person has committed an offence is relevant to anissue in a civil proceeding, proof that the person has been convictedof that offence is conclusive proof that the person committed theoffence.(2) Despite subsection (1), if the conviction of a person is proved underthat subsection, the Judge may, in exceptional circumstances,—(a) permit a party to the proceeding to offer evidence tending toprove that the person convicted did not commit the offencefor which the person was convicted; and(b) if satisfied that it is appropriate to do so, direct that the issuewhether the person committed the offence be determinedwithout reference to that subsection.(3) This section applies—(a) whether or not the person convicted is a party to theproceeding; and(b) whether or not the person was convicted on a guilty plea.[10] In the present case, the convictions of Sarah Jones, Jacob Jones and Ayden Wattare central to Ms Jones' application to sever her interest in the subject property. Thatis because the property in question has been restrained on account of Sarah Jones,Jacob Jones and Ayden Watt's offending.[11] The summary of facts that was agreed prior to the guilty pleas of Sarah Jones,Jacob Jones and Ayden Watt is the critical document in understanding the basis for theconvictions.[12] The authors of Cross on Evidence have opined that a summary of facts will beadmissible in civil proceedings, if not under s 47 itself, then by the relevant hearsayprovisions in Part 2 of the Evidence Act, in particular s 18.[13] On that basis, the counsel for the Commissioner submitted that the convictionsof Sarah Jones, Jacob Jones and Ayden Watt are admissible in respect to thisapplication pursuant to s 47 of the Evidence Act.[14] It was further submitted that the summary of facts underlying those convictionsshould likewise be admitted into evidence, whether or not those facts are agreed byMs Jones, so as to provide context to the convictions.[15] The summary of facts is reliable and undue expense or delay would beoccasioned if the Commissioner was required to prove each of the facts contained inthe summary.[16] The general admissibility of hearsay gateway, contained at s 18 of the EvidenceAct, is therefore opened.[17] Counsel for the Commissioner noted that in "exceptional circumstances" thepresiding Judge may allow Ms Jones to offer evidence tending to prove that theoffences were not committed. However, that does not appear to be a realisticallyavailable approach in the present case, where Ms Jones claims to have no knowledgeof the offending.[18] Overall, and noting that the without notice restraining order was granted on thebasis of Sarah Jones, Jacob Jones and Ayden Watt's now admitted offending, there isno prejudice to Ms Jones in the convictions and summary of facts being entered intoevidence.Result[19] The evidence of the convictions against Sarah Jones, Jacob Jones andAyden Watt are entered into evidence together with the summary of facts underlyingthe convictions.Doogue JSolicitors:Crown Solicitor, DunedinJenny Beck Law, DunedinSolomons, DunedinRoss Dowling Marquet Griffin, DunedinLateral Lawyers Ltd, AucklandCC:G A Paine, DunedinC Patterson, AucklandA Pinnock, DunedinS Saunderson-Warner, Dunedin