COMMISSIONER OF POLICE v MARSHALL [2021] NZHC 2316

COMMISSIONER OF POLICE v MARSHALL [2021] NZHC 2316 [6 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-377[2021] NZHC 2316UNDER The Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND EVELYN DAWN MARSHALLFirst RespondentDAVID SIMON MARSHALLSecond RespondentZACH MARSHALLThird RespondentHearing: On the papersAppearances: N Walker / J Pridgeon for ApplicantN T C Batts for First RespondentM J Taylor-Cyphers for Second RespondentS Wimsett for Third RespondentJudgment: 6 September 2021JUDGMENT OF LANG J[on application for leave to appeal to Court of Appeal]This judgment was delivered by me on 6 September 2021 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In this proceeding the Commissioner seeks asset and profit forfeiture ordersagainst the respondents under the Criminal Procedure (Recovery) Act 2009 (CPRA).At trial the Commissioner seeks to rely in part on statements made duringexaminations of the three respondents undertaken after the Commissioner hadobtained orders under s 107 of the CPRA.[2] The respondents acknowledge they made self-incriminating statements duringthe examinations. They contend these are rendered inadmissible by both the EvidenceAct 2006 and the CPRA. They therefore sought an order requiring the Commissionerto provide redacted transcripts of the interviews that excluded their incriminatingstatements.[3] In a judgment delivered on 19 July 2021 I dismissed the respondents'application.1 The respondents now seek leave to appeal to the Court of Appeal againstthis decision.Relevant principles[4] Leave is required under s 56(3) of the Senior Courts Act 2016 because theproposed appeal relates to an interlocutory decision. In Ngai Te Hapu Inc v Bay ofPlenty Regional Council the Court of Appeal confirmed that considerations similar tothe principles applicable to applications under the former 24G of the Judicature Act1908 remain relevant to applications for leave under s 56(3).2 The Court observed:3We agree that leave to appeal should only be granted where the significanceor implications of an arguable error of fact or law, either for the particular caseor for the applicant or as a matter of precedent, warrants the further delaywhich the appeal process would involve.[5] The principles governing interlocutory appeals were also very recentlyreviewed by the Court of Appeal in Tomar v Tomar.4 In that case the Court approvedthe approach taken by Fitzgerald in Finewood Upholstery Ltd v Vaughan.5 Thisrecognises that the requirement for leave to appeal serves as a filtering mechanism to1 Commissioner of Police v Marshall [2021] NZHC 1819.2 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].3 At [17].4 Timar v Tomar [2021] NZCA 419.5 At [6], citing Finewood Holstery Ltd v Vaughan [2017] NZHC 1679 at [13].ensure that unmeritorious appeals against interlocutory orders do not necessarily delaythe proceedings in which the orders were made. The Court of Appeal acknowledgedthat the following considerations have been recognised as relevant on an applicationfor leave to appeal:6(a) A high threshold exists.(b) The applicant must identify an arguable error of law or fact.(c) The alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value.(d) The circumstances must warrant incurring further delay.(e) The ultimate question is whether the interests of justice are served bygranting leave.[6] In Greendrake v District Court of New Zealand the Court of Appeal alsoapplied the principles referred to in Finewood.7The issue[7] The issue for which the respondents seek leave to appeal arises out of thewording used in ss 164 and 165 of the CPRA. They provide as follows:164 Admissibility of evidence(1) No evidence that is lawfully obtained under section 105 or 107 isinadmissible by reason only of the fact that it was so obtained.(2) This section is subject to section 165.165 Admissibility of self-incriminating statements(1) A self-incriminating statement made orally by a person (whether ornot the statement is recorded in writing) in the course of answeringany question, or supplying any information, or producing any6 At [6].7 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].document, or providing any explanation, as required under section105 or 107, may be used in evidence against that person only in aprosecution for an offence under section 108 of the Crimes Act 1961(which relates to perjury) or under this Act in relation to any evidencegiven by the person that is inconsistent with the statement.(2) Despite subsection (1), any statement made in relation to—(a) a refusal or failure to answer any question, supply anyinformation, produce any document, provide any explanation,or comply with any other requirement may be used in evidenceagainst that person in any prosecution for any offence undersection 152 arising from that refusal or failure:(b) the answering of any question in a way that is false ormisleading in a material particular, or the supply of anyinformation, or the production of any document, or theproviding of any explanation that is false or misleading in amaterial particular, may be used in evidence against that personin any prosecution for any offence under section 152 arisingfrom that act.[8] In the present case there is no dispute that the Commissioner examined therespondents lawfully using the orders he obtained under s 107 of the CPRA. For thatreason, as I noted in my judgment, s 164(1) appears to provide a complete answer tothe respondents' argument.8 However, the respondents rely on the fact that s 164(2)makes s 164(1) expressly subject to s 165. The respondents contend that s 165prescribes the only circumstances in which the Commissioner may use self-incriminating statements obtained in examinations under ss 106 and 107 of the CPRA.These do not include forfeiture proceedings under the CPRA.Decision[9] Several factors favour the granting of leave. First, I acknowledged in myjudgment that the wording of s 165(1), and in particular the use of the word "only",meant that the respondent's submission is capable of argument.9 The wording of thesection makes it arguable that evidence obtained under ss 105 and 107 may be used inthe types of prosecutions specified in s 165 but for no other purpose whatsoever,including civil proceedings under the CPRA.8 Commissioner of Police v Marshal, above n 1, at [11].9 At [13].[10] Secondly, I accept that the issue is likely to have importance for proceedingsother than the present. It is also novel, with counsel being unable to find any othercase in which it has been raised. Thirdly, the issue is narrow and ought to be capableof argument before the Court of Appeal without undue delay.[11] However, two factors suggest leave should not be granted. First, I found thatthe interpretation for which the respondents argued would result in an outcome thatwas wholly inconsistent with the purpose of the CPRA.10 In effect it would deny theCommissioner the ability to use information obtained in examinations conductedlawfully under ss 107 and 107 in subsequent forfeiture proceedings. This underpinnedmy conclusion that the restrictions contained in s 165 applied only to criminalprosecutions. I held that Parliament could not have intended the restriction in s 165 toapply also to civil proceedings involving applications for forfeiture orders under theCPRA.11 I consider this factor weakens the argument for the respondentsconsiderably.[12] Secondly, the respondents appear to acknowledge that the application forforfeiture orders does not rely wholly on the statements made by the respondentsduring their examinations. The Commissioner can point to other evidence, includingthe fact that the respondents have now been convicted and sentenced on chargesrelating to drug-related activity.[13] Had the challenged statements been determinative of the present proceeding Iwould have granted leave to appeal. It seems to me, however, that it is better at thisstage for the proceeding to be determined at trial. If the respondents are not satisfiedwith the outcome they can exercise their general right of appeal against the substantivejudgment, including reliance by the Commissioner on the statements made during theexaminations. If the Court of Appeal concludes the statements ought to have beenexcluded it will then be able to assess whether the Commissioner nevertheless adducedsufficient other evidence to obtain the forfeiture orders he seeks. Any other approachruns the risk that the Court of Appeal will be required to consider two appeals ratherthan one.10 At [13].11 At [14].Result[14] The application for leave to appeal is dismissed.Lang J