COMMISSIONER OF POLICE v VOUSDEN [2018] NZHC 1057

COMMISSIONER OF POLICE v VOUSDEN [2018] NZHC 1057 [15 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-1682[2018] NZHC 1057BETWEEN COMMISSIONER OF POLICEApplicantAND ALLISTER DAVID VOUSDENFourth RespondentOn the papersAppearances: M Harborow and T Bellingham for ApplicantFourth Respondent, self-representedJudgment: 15 May 2018JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 15 May 2018 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] The Commissioner has applied under the Criminal Proceeds (Recovery) Act2009 ("the Act") for the forfeiture of certain assets allegedly in the possession orcontrol of the respondents, including the fourth respondent, Allister David Vousden.[2] The Commissioner and Mr Vousden have reached agreement on terms ofsettlement of the Commissioner's application so far as it affects Mr Vousden, and theCourt has been asked to approve the settlement under s 95 of the Act. Mr Vousden hasdispensed with the services of his former counsel and wishes to resolve the matterwithout further legal assistance, acknowledging that he has had the opportunity toobtain advice.[3] It is unnecessary, given the request for approval of the terms of settlement, forthe Court to set out in detail the background to the proposed arrangements. It issufficient to say that in February 2007, Mr Vousden and others faced trial in this Courtin which Mr Vousden was charged with a number of money laundering offences. Hewas discharged by the trial Judge, Downs J, under s 147 of the Criminal ProcedureAct 2011 (the discharges amounting to acquittals) and was acquitted by the jury on thecharges which were not dismissed by the Judge.[4] The Commissioner has alleged that, despite not being convicted of the criminalcharges, Mr Vousden unlawfully benefited from significant criminal activity and thatthe Crown's case meets the civil standard of proof on a balance of probabilities. Theallegations in support of the proceeding are that Mr Vousden in fact participated in thelaundering of assets, namely various vehicles, and obtained a substantial benefit fromdoing so.[5] The terms of settlement which the Court is asked to approve result in anoutcome which includes the forfeiture of approximately $796,000 to the Crown. MrVousden's agreement with the settlement terms necessarily includes an impliedacknowledgement that there is merit in the Commissioner's allegations. Mr Vousdenalso agrees in terms of the proposal that to the extent that he or his company, EllerslieCollision Repairs Limited, are shown to have any interest in, or effective control over,any other property presently restrained in the proceeding, he will not oppose forfeiture.[6] Section 95 of the Act provides as follows:Approval of settlements (s 95)95 High Court must approve settlement between Commissioner andother party(1) The Commissioner may enter into a settlement with anyperson as to the property or any sum of money to be forfeitedto the Crown.(2) A settlement does not bind the parties unless the High Courtapproves it.(3) The High Court must approve the settlement if it is satisfiedthat it is consistent with—(a) the purposes of this Act; and(b) the overall interests of justice.[7] I accept the submissions on behalf of the Commissioner that Parliament hasempowered the Commissioner to enter into settlements with respondents regarding theforfeiture of assets to serve the public interest in bringing such proceedings to a promptand inexpensive conclusion which appropriately recognises the cost and riskassociated with contested litigation. The Court's supervision is intended by Parliamentto ensure that settlements are consistent with the principles of the legislation and theoverall interests of justice.1[8] In their joint memorandum, counsel for the Commissioner and Mr Vousdensubmit that the proposed settlement meets the requirements of s 95(3) in the followingways:(a) There is evidence to support the Commissioner's allegation thatMr Vousden derived a substantial benefit from significant criminalactivity, namely money laundering.(b) The Commissioner has a strong case to show that 3/1 Old Wairoa Roadis tainted property (so as to support an assets forfeiture order). TheCommissioner has similar strong grounds in respect of most of the1 Section 95(3).vehicles in schedule one (and where there is little evidence of taint theCommissioner considers those vehicles would be able to be realised tosatisfy a profit forfeiture order against Mr Vousden).(c) The Commissioner is prepared to adopt a pragmatic approach tosettlement, considering he is not aware of any other major assets whichwould be applied towards a potential profit forfeiture order againstMr Vousden beyond the property restrained in this matter.(d) Mr Vousden acknowledges that a contested hearing carries with it realrisk, and will take some time to complete. He also recognises themandatory nature of civil forfeiture orders, the statutory presumptionin favour of the Commissioner's nominated profit forfeiture figure(under s 53 of the Act), and the civil standard of proof.(e) There will be a considerable savings of time, resources and especiallycost to both parties if the proceedings in respect of Mr Vousden can beresolved by consent, without the need for further litigation.(f) Finally, all parties wish to have certainty and control as to the outcomeof these matters.I accept those submissions.[9] Accordingly, I make the following orders by consent to give effect to thesettlement which has been reached:Orders ancillary to restraining orders under ss 33-35 of the Act:(a) Under ss 33, 34 and 35 of the Act, the Official Assignee is directed topay the sum of $10,000 to a bank account nominated by Mr Vousdenfrom the proceeds of sale of the vehicles listed in schedule one to thismemorandum.(b) Under ss 33, 34 and 35 of the Act, the Official Assignee is directed tosell the restrained property at 3/1 Old Wairoa Road, Papakura,Auckland (the Property), registered proprietor Allister Vousden, assoon as practicable for its fair market value.(c) For the purposes of effecting the sale of the Property, Guy FrancisSayers of Napier, Official Assignee, has the power to execute any deedor instrument in the name of Allister Vousden and to do anythingnecessary to give validity and operation to the deed or instrument;(d) The Official Assignee is to deal with the proceeds of sale of theProperty as follows:(i) first, deduct his reasonable costs in effecting the sale;(ii) second, pay Mr Vousden's outstanding fines (in the vicinity of$740); and(iii) third, forfeit the net balance to the Crown in accordance withthe assets forfeiture order in paragraph (e)(i) below.Assets for forfeiture order under s 50(1) of the Act:(e) The following property vests in the Crown absolutely and is to be underthe Official Assignee's custody and control:(i) the net sale proceeds of 3/1 Old Wairoa Road following thepayments referred to in paragraph (d) above; and(ii) all vehicles (or their proceeds of sale) listed in Schedule One tothis judgment (except for the sum of $10,000 released toMr Vousden as referred to in paragraph (a) above).(f) The Commissioner shall not pursue an application for a profit forfeitureorder against Mr Vousden personally.(g) Costs will lie where they fall in relation to all matters.[10] I thank counsel and Mr Vousden for their co-operation and assistance..............................................Toogood JSchedule OneChevrolet CamaroRegistration GGF788Allister Vousden Not yet locatedChevrolet CorvetteRegistration EYT318Allister Vousden Sold by Official AssigneeHolden CommodoreRegistration HEA282Allister Vousden Sold by Official AssigneeChevrolet SilveradoRegistration FWD371Allister Vousden Not yet locatedFord GalaxieRegistration DCF630Ellerslie CollisionRepairs LimitedCurrently in custody of theOfficial AssigneeToyota Lite Ace VanRegistration HAQ648Ellerslie CollisionRepairs LimitedSold by Official AssigneeNissan SkylineRegistration GBZ865Allister Vousden Sold by Official AssigneeBoat named 'Bada Bing' andtrailer L137HAllister Vousden Sold by Official AssigneeHolden VT CommodoreRegistration JCA280Allister Vousden Sold by Official Assignee