COMMISSIONER OF POLICE v ROYCE ALLAN DUNCAN [2023] NZHC 2482

COMMISSIONER OF POLICE v ROYCE ALLAN DUNCAN [2023] NZHC 2482 [5 September 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2010-470-933[2023] NZHC 2482BETWEEN COMMISSIONER OF POLICEApplicantAND ROYCE ALLAN DUNCANFirst RespondentAND ALISON JUSTINE DUNCANSecond RespondentAND KENNEDY O'CONNOR WILLIAMSThird RespondentAND NATIONAL BANK OF NEW ZEALANDFourth RespondentHearing: 25 July 2023Appearances: M R Harborow for the ApplicantW T Nabney for the First RespondentNo appearance by or on behalf of the third and fourthRespondentsJudgment: 5 September 2023JUDGMENT OF POWELL JThis judgment was delivered by me on 05 September 2023 at 4.00 pm pursuant tor 11.5 of the High Court Rules..Registrar/Deputy Registrar[1] In 2011 Andrews J made a profit forfeiture order against Mr Duncan in the sumof $1,872,963.00 ("the profit forfeiture judgment").1 In accordance with the judgmenta large amount of property which had been restrained was sold but only $304,882.50was recovered, leaving a shortfall of $1,568,080.50.[2] Not long after the orders were made Mr Duncan pleaded guilty to and wassentenced for serious drug-related offending for which he received 15 years'imprisonment.2 He was released on parole in 2018.[3] On 15 December 2021 the Police executed a search warrant at Mr Duncan'saddress in Tauranga. $37,222 in cash was seized along with a firearm (a pistol),assorted ammunition, small quantities of drugs, and drug utensils. Mr Duncan wassubsequently convicted and sentenced for unlawful possession of the pistol.[4] The Official Assignee seeks leave to enforce the profit forfeiture judgmentagainst Mr Duncan. Specifically a sale order is sought to enable the Official Assigneeto retain the $37,222 found during the execution of the search warrant and currentlyheld by the Police. Leave is required because more than six years have elapsed sincethe profit forfeiture judgment.3[5] The application for leave to enforce the judgment is opposed by Mr Duncan.The case for Mr Duncan[6] Mr Duncan has deposed that he had received a bequest of $48,000 from hisfather and the $37,222 seized by Police represents the balance of that sum followinga number of transactions undertaken by Mr Duncan involving buying and selling amotorcycle and various cars, as well as taking into account monies expendedrenovating/rebuilding Mr Duncan's home and general living costs. Mr Nabney, onbehalf of Mr Duncan, submitted that I should exercise my discretion not to allow1 Commissioner of Police v Duncan HC Tauranga CIV-2010-470-000933, 11 October 2011 at[163(b)].2 R v Duncan [2013] NZHC 193 at [73].3 High Court Rules 2016, r 17.9(2)(b).enforcement to give Mr Duncan the opportunity to get on with his life utilising moneythat was not in any way tainted.Discussion[7] There is no dispute that the profit forfeiture order is a judgment and creates adebt that remains outstanding. In particular s 55(4) of the Criminal Proceeds(Recovering) Act 2009 ("the Act") provides:A profit forfeiture order is enforceable as an order made as a result of civilproceedings instituted by the Crown against the person to recover a debt dueto it, and the maximum recoverable amount is recoverable from the respondentby the Official Assignee on behalf of the Crown as a debt due to the Crown.[8] Section 83(4) of the Act likewise makes it clear that in the event a profitforfeiture order is not satisfied by the sale of specified property the Official Assigneemay recover: by any lawful means, the balance of the maximum recoverable amount thatremains due to the Crown, after the Crown is paid a sum less than themaximum recoverable amount under the provision.[9] The Court of Appeal noted in Harrison v Commissioner of Police:4[50] The wording is clear. The profit forfeiture order is to be treated as ajudgment debt due to the Crown recoverable by the Official Assignee. And inour view, contrary to the reasoning adopted in Doorman, the otherrequirements in s 55 should not be interpreted, particularly in light of thelegislative purpose, as qualifying or in any way restricting those words.[52] Nowhere in the Act does it say that the s 83 process [being the sale ofspecific property] is the only means of enforcing the judgment debt created byvirtue of the profit forfeiture order. That is to say, nowhere in the Act does itsay that the only means of enforcing the debt is by realising the assets specifiedin the order. On the contrary, s 83(4) specifically provides that if the OfficialAssignee's disposal of the specified property results in the Crown being paidless than the maximum recoverable amount, the Official Assignee is notprevented from recovering by any lawful means the balance of the maximumrecoverable amount that remains due to the Crown.[52] Drawing all these strands together, we conclude that under the Act aprofit forfeiture order is designed to do two things: first it creates the debt —which is the maximum recoverable amount — and secondly the order4 Commissioner of Police v Harrison [2021] NZCA 540, [2022] 2 NZLR 339.identifies any property to be disposed of if it is proposed to utilise theenforcement mechanism under s 83. The latter is the context in which theobligation under s 52 to specify property in the application for a profitforfeiture order should be understood. The debt can however also be enforcedutilising other available enforcements mechanisms outside the Act, whetherthe property was in existence at the time the forfeiture order was made andspecified in the order or is after acquired property[10] Given that position I accept Mr Harborow's submissions that the source of themonies presently in issue is effectively irrelevant. Even if it was relevant, I amsatisfied that there is no mention of any bequest at the time the monies were seized byPolice. On the contrary, Mr Duncan's explanations on the day the search warrant wasissued and his explanations subsequently given were inconsistent. His laterexplanations were similar to those considered and rejected by Andrews J.5 I considerthe circumstances at the time the cash was discovered, being found along with thepistol, drugs and drug-paraphernalia is simply not consistent with any lawful purposegiven Mr Duncan's previous history.[11] In the event, it is not necessary to reach a final conclusion on the provenanceof the money. It is clear that the profit forfeiture orders give rise to a debt owing tothe Official Assignee and the source of the money is therefore irrelevant. In thecircumstances, it would be antithetical to the purpose of the legislation to decline togrant leave. Instead it is appropriate to permit the Official Assignee to retain on behalfof the Crown the monies seized by Police.Decision[12] Leave is granted to enforce the profit forfeiture judgment. The Sheriff atTauranga is authorised to seize the sum of $37,222 belonging to Royce Allan Duncancurrently held in the New Zealand Police Trust account.[13] The money seized is to be allocated:(a) To satisfy the costs and expenses executing this order; and5 See, for example, Commissioner of Police v Duncan, above n 1, at [33]–[37], [154] and [161].(b) To discharge a portion of the judgment debt owed by Royce AllanDuncan to the Crown under the profit forfeiture order made by AndrewsJ on 11 October 2011 under the Criminal Proceeds (Recovery) Act2009._______________________________Powell JSolicitors:Meredith Connell, AucklandCounsel:W Nabney