THE COMMISSIONER OF POLICE v DOYLE [2021] NZHC 1783

THE COMMISSIONER OF POLICE v DOYLE [2021] NZHC 1783 [14 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2149[2021] NZHC 1783BETWEEN THE COMMISSIONER OF POLICEApplicantAND WAYNE STEPHEN DOYLEFirst RespondentHARATA RAEWYN PAPUNISecond RespondentHearing: 14 July 2021Appearances: M Harborow and C Purdon for ApplicantR Mansfield QC and S L Cogan for RespondentsJudgment: 14 July 2021Reasons: 15 July 2021REASONS FOR JUDGMENT OF LANG J[on application for adjournment of the civil fixture]This judgment was delivered by me on 15 July 2021 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors:Meredith Connell, Auckland[1] The Commissioner contends that the respondents, Mr Doyle and Ms Papuni,derived substantial financial benefits from significant criminal activity. This includesdrug dealing, benefit fraud, money laundering and other forms of property anddishonesty offences. In this proceeding the Commissioner of Police seeks civilforfeiture orders against the respondents under the Criminal Proceeds (Recovery) Act2009 (the Act).[2] The proceeding is currently scheduled to be the subject of a trial of three weeksduration commencing on 23 September 2021. On 21 June 2021 Mr Doyle andMs Papuni applied for an adjournment of the trial. The Commissioner opposed thetrial being adjourned.1[3] At the conclusion of the hearing on 14 July 2021 I made an order vacating thefixture on 23 September 2021 and directing a new trial of four weeks durationcommencing on 11 July 2022. I also directed the respondents to file and serve theirevidence no later than 15 October 2021.[4] I now give reasons for those decisions.Grounds of application[5] On the respondents' behalf Mr Mansfield advances three grounds that hecontends justify an adjournment:(a) The evidence filed on the Commissioner's behalf contains significantportions of inadmissible evidence and objections to these need to bedetermined before the respondents serve their evidence.(b) The respondents wish to pursue an application for leave to appeal to theCourt of Appeal against dismissal of their application for an orderrequiring the Commissioner to file and serve a particularised statementof claim.1 The application was made in a memorandum filed by the respondents' counsel dated 21 June 2021.Given the need to deal with the application urgently I did not require a formal application andnotice of opposition to be filed.(c) The respondents require further time to prepare and file their evidence.Challenges to admissibility of evidence[6] I do not consider this issue warrants an adjournment of the trial. This is a civilproceeding and as such will be tried before a Judge and not a jury. A Judge will beable to identify those passages in the Commissioner's affidavits that are objectionablebecause they amount to submission or unsubstantiated opinion. As Mr Harborowpoints out for the Commissioner, these are issues that would ordinarily be dealt withat trial. Alternatively, if a pre-trial hearing is necessary this could be arranged withina short period of time.Application for leave to appeal to Court of Appeal[7] This issue arises because the applicants filed an application seeking an orderrequiring the Commissioner to file a fully particularised statement of claim. Theirapplication was dismissed by Brewer J in a judgment delivered on 27 May 2021.2Brewer J subsequently dismissed an application by the respondents for leave to appealto the Court of Appeal.3 The respondents say they should be given an opportunity toseek leave to appeal directly from the Court of Appeal. They do not wish to file andserve their evidence before this issue is determined.[8] I do not consider this constitutes a valid ground for adjourning the currentfixture. This Court has delivered its decision on the respondents' application and itstands unless and until the Court of Appeal reverses it. If that should happen, or if theCourt of Appeal should grant leave to appeal, the viability of the existing fixture wouldobviously need to be reconsidered. As matters currently stand, however, it would bepremature to vacate the fixture to provide the respondents with an opportunity topursue their application for leave to appeal to the Court of Appeal.2 Commissioner of Police v Doyle [2021] NZHC 1209.3 Commissioner of Police v Doyle (No. 2) [2021] NZHC 1619.Further time is required to prepare the respondents' evidenceThe argument for the Commissioner[9] The Commissioner considers the respondents have had ample opportunity toprepare their evidence in opposition to the application. Mr Harborow points out thatthe Commissioner's evidence was filed and served on 9 May 2020. On 6 September2020 Gault J made directions requiring the respondents to file and serve their evidencein opposition no later than 31 March 2021. He also directed the Commissioner to fileand serve any evidence in reply no later than 30 June 2021.[10] The respondents did not file and serve their evidence by 31 March 2021. TheCommissioner then sought amended timetabling directions. On 21 April 2021 MooreJ directed the respondents to file and serve their evidence in opposition by 14 June2021. He directed the Commissioner to file and serve any evidence in reply no laterthan 16 August 2021.[11] The proceeding came before the Court again on 21 June 2021. The minuteissued by Nation J on that date contains the following paragraph:[7] Mr Mansfield said, in any event, the respondent would have beenunder difficulty in complying even with the suggested extension of the timefor them to file affidavits. He says the respondents have engaged a privateinvestigator who is assisting in the assessment of what, I accept, must be verydetailed and complex evidence that the Commissioner relies on. Mr Mansfieldsays they were anticipating they would need at least another four weeks tocomplete the evidence they have to file.[12] Mr Harborow contends the history of the proceeding to date demonstrates thatthe respondents have consistently failed to comply with timetable directions made bythe Court and that they have now had ample opportunity to provide evidence inopposition to the Commissioner's claim. He submits the Court should make "unless"orders prohibiting the respondents from defending the Commissioner's claim unlessthey file and serve their evidence no later than 23 July 2021. In that event theCommissioner would accept a truncated date by which to file and serve his evidencein reply. This would enable the fixture commencing on 23 September 2021 to bemaintained.The argument for the respondents[13] Mr Doyle has filed an affidavit in which he deposes:5.4 However, even if Brewer J's judgment is the final word on theCommissioner's case, there is simply not enough time to prepare theRespondents' evidence in the remaining time available.5.5 The Respondents do not have the same extensive powers andresources that the Commissioner has. Our resources are very limited.I have been working closely with a private investigator, TimMcKinnel, to prepare the Respondent's evidence. I have today askedhim for his updated estimate as to how much longer he needs tocomplete the evidence with me. Mr McKinnel advises that,realistically, he needs at least until Friday, 17 September 2021.5.6 We have done the best we can to complete the evidence on time giventhe time and resources available to us, and the nature and breadth ofthe Commissioner's case. If the Commissioner's application issuccessful, the outcome will significantly impact on many people.The Court can be assured that we are taking our opposition veryseriously.5.7 I simply ask for a reasonable opportunity to prepare the Respondent'sevidence, after being forced by the Commissioner to wait until 27 May2021 for an answer to what the Commissioner's case is. TheRespondents had been asking for this since 25 September 2020.[14] If the respondents cannot file and serve their evidence until 17 September 2021the fixture commencing on 23 September 2021 plainly cannot proceed.Context[15] I accept Mr Mansfield's submission that, regardless of any timetable directionsthe Court has made in the past, the present application needs to be viewed in context.[16] The proceeding commenced on 20 September 2017 when the Commissionersuccessfully applied on a without notice basis for restraining orders over propertyowned by the respondents. This included cash held in bank accounts, a motor vehicle,four residential properties and a building used as clubrooms by the Head HuntersMotorcycle Club. The restraining orders were subsequently extended on fouroccasions, the latest being on 9 April 2021.[17] The complexity and breadth of the Commissioner's application for forfeitureorders is reflected by the fact that it took nearly three years for the Commissioner tofile and serve his application for civil forfeiture orders. The application relies uponevidence obtained in no less than 16 different police operations undertaken between1999 and 2016. The Commissioner will also rely on evidence obtained duringinvestigations undertaken by the Ministry of Social Development and the CharitiesCommission.[18] In addition, the Commissioner relies on evidence located during the executionof search warrants on nine separate addresses. The police have also conductedexaminations under s 107 of the Act on no fewer than 20 separate individuals,including the respondents. Furthermore, the Commissioner's case involves ananalysis of the financial affairs of Mr Doyle and entities associated with him thatcovers a period of approximately 20 years.[19] These factors have resulted in the Commissioner filing no fewer than23 separate affidavits in support of the application for forfeiture orders. Some of theseare relatively straightforward but several relate to issues that are of considerablecomplexity.[20] The fact that neither respondent has been charged with any of the criminalactivity alleged in the present proceeding also adds another dimension to the case. Itmeans the Commissioner must establish the existence of significant criminal activity.That would not be the case where the criminal activity alleged in forfeitureproceedings has already been established through criminal proceedings.[21] It also needs to be borne in mind that the Commissioner is seeking to obtainforfeiture orders over property having a current total value of approximately $10million. The stakes are therefore high and the respondents stand to lose assets havingvery significant value if they cannot successfully counter the Commissioner's claims.[22] Furthermore, I accept Mr Mansfield's submission that it will not be astraightforward matter for the respondents to defend the proceedings. TheCommissioner does not contend they were personally responsible for all the criminalactivity that produced the financial benefits they are alleged to have received. Muchof that activity is alleged to have been undertaken by others, with a portion of theproceeds being paid to Mr Doyle. The Commissioner alleges Mr Doyle has then usedthese funds to acquire much of the property that is currently subject to the restrainingorders. In order to respond to the application Mr Doyle is therefore effectivelyrequired to identify legitimate sources for the funds used to acquire that property.[23] On the other hand I accept that an adjournment would inevitably be frustratingfor the Commissioner. He obviously considers the respondents have been dilatory intheir approach to this proceeding and this has resulted in unacceptable delay.However, the property in respect of which the Commissioner seeks forfeiture ordersremains subject to the restraining orders and is unlikely to decline in value with thepassage of time. The reverse is likely to be the case. It therefore cannot be said thatan adjournment would cause any material prejudice to the Commissioner.Decision[24] My greatest concern lies in the fact that, as the passage set out at above4 shows,counsel then appearing for the respondents advised Nation J on 21 June 2021 that therespondents' affidavits could be filed and served within approximately four weeks.The affidavit Mr Doyle has filed in support of the present application is to contraryeffect. It now seems that the respondents' evidence will not be completed until at least17 September 2021.[25] During the hearing before me Mr Mansfield submitted that the Minute issuedby Nation J on 21 June 2021 does not capture the point he was endeavouring to make.This was that, if the trial was required to proceed on 23 September 2021, it would benecessary for the respondents' affidavits to be filed and served within four weeks. MrMansfield says that he was not thereby accepting this could be achieved.[26] Given the breadth and complexity of the issues the respondents are required toconfront in their evidence I cannot say that the evidence contained in Mr Doyle'saffidavit is false or misleading. I have little option but to accept what he has said on4 At [11].oath. I am therefore required to proceed on the basis that the respondents will not beable to complete the preparation of their evidence in opposition to the Commissioner'sapplication until mid-September 2021.[27] In part the explanation for the delay that has occurred may flow from therespondents' application for orders seeking discovery and requiring the Commissionerto file and serve a particularised statement of claim. They filed this on 25 September2020 and it resulted in the Commissioner providing four separate tranches of discoverybetween November 2020 and February 2021.[28] The application for an order requiring the Commissioner to file and serve aparticularised statement of claim was initially resolved in December 2020 whencounsel for the Commissioner agreed to provide further particulars of theCommissioner's claims. It then took until 8 March 2021 for the Commissioner to sendthe respondents a 22- page letter setting out the particulars on which the Commissionerrelies. This did not satisfy the respondents. They resurrected their application, andthis resulted in the judgments delivered by Brewer J in May and June 2021. It ispossible in my view that the respondents may have become side-tracked by theseissues and concentrated on them rather than on preparing their evidence in oppositionto the Commissioner's claim.[29] Regardless of the reasons why the respondents have not yet filed and servedtheir evidence I am satisfied it is no longer practicable to maintain the current trialdate. The interests of justice require an adjournment of the fixture to enable therespondents to complete the preparation of their evidence. I therefore vacated thefixture at the conclusion of the hearing on 14 July 2021. In its place I have allocateda fixture of four weeks duration commencing on 11 July 2022.[30] As I have already observed, I have directed that the respondents are to file andserve their affidavits in opposition to the Commissioner's claim no later than Friday15 October 2021. I do not make "unless" orders at this stage but I record my adviceto Mr Mansfield that, if the respondents do not comply with this direction, it is highlylikely the Court will make "unless" orders when the matter is next called.Next event[31] The proceeding is to be listed for mention in the Duty Judge List on Monday18 October 2021 at 10 am to ensure the respondents' evidence has been filed andserved. Directions can be given at that time for the filing and service of theCommissioner's evidence in reply and any other pre-trial directions that need to bemade.Lang J