COMMISSIONER OF POLICE v DONALD JOHN McLEAN [2022] NZHC 968

COMMISSIONER OF POLICE v DONALD JOHN McLEAN [2022] NZHC 968 [9 May 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2021-412-19[2022] NZHC 968UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER of an application pursuant to s 95 of the ActBETWEEN COMMISSIONER OF POLICEApplicantAND DONALD JOHN McLEANFirst RespondentAND LISA MELANIE McLEANSecond RespondentAND DONALD JOHN MCLEAN and LISAMELANIE MCLEAN as Trustees of theMCLEAN-MCGOWAN FAMILY TRUSTThird RespondentsAND AYDEN PAUL WATTFourth RespondentAND NICHOLAS EDWARD SUSZKOFifth RespondentAND SARAH JONESSixth RespondentAND JULIE-ANNE JONESInterested PartyAND WESTPAC BANK NZ LIMITEDInterested PartyAND KIWIBANK LIMITEDInterested PartyAppearances: R D Smith for ApplicantA L Pinnock for the First, Second and Third RespondentsS A Saunderson-Warner for Fourth RespondentC T Patterson for Fifth RespondentN M Laws for Sixth RespondentJudgment: 9 May 2022(Determined on the papers)JUDGMENT OF OSBORNE J[1] The Court has previously made restraining orders under the Criminal Proceeds(Recovery) Act 2009 affecting the property of the respondents.[2] The orders cover property owned by the fifth respondent, Nicholas EdwardSuszko as follows:(a) a residential property at 28 Nottingham Crescent, Calton Hill, Dunedin,described in record of title as Lot 9 and Lot 20 Block 11, DP2162 (theproperty); and(b) a 2006 Dodge Charger Daytona, registration DODG06 (the vehicle).[3] The Commissioner of Police and Mr Suszko have since entered into asettlement as to the property and the vehicle.[4] The Commissioner and Mr Suszko request that the Court, under s 95 of theAct, approve the settlement.The jurisdiction[5] Section 95 of the Act provides:95 High Court must approve settlement between Commissioner andother party(1) The Commissioner may enter into a settlement with any person as tothe property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approvesit.(3) The High Court must approve the settlement if it is satisfied that it isconsistent with—(a) the purposes of this Act; and(b) the overall interests of justice.[6] It is recognised that the Court may consider approval of a settlement reachedfollowing the making of a restraining order without the need for a formal forfeitureapplication — a joint memorandum from the parties (or counsel) sufficiently engagess 95 of the Act.1Discussion[7] Counsel have by their memorandum identified that the Commissioner's claimthat Mr Suszko unlawfully benefitted from significant criminal activity are disputed.They have further recorded a number of ways (including in relation to forensicaccounting) in which Mr Suszko has cooperated with the Commissioner'sinvestigation and has provided relevant information. They record also that MrSuszko's health has been affected by the existence of this proceeding and a settlementwill assist Mr Suszko in that regard.[8] It is common ground as between the respondents and the Commissioner thatno respondent other that Mr Suszko has an interest in the property or the vehicle.[9] The proposed settlement involves the payment of $10,000 by Mr Suszko to theCommissioner.[10] I am satisfied that the proposed settlement is consistent with the purposes ofthe Act and the overall interests of justice.1 Commissioner of Police v Saunders [2021] NZHC 3479 at [2].Order[11] I approve the following settlement, namely:(a) Nicholas Edward Suszko is to pay to the Commissioner of Police thesettlement sum of $10,000 within two working days after the date ofthis judgment;(b) immediately upon the Commissioner's receipt of the settlement sum:(i) the Commissioner is to file and serve a Memorandumconfirming receipt of the settlement sum (such Memorandum tobe served also on the Official Assignee);(ii) the Commissioner, at his cost, is to have Mr Suszko's 2006Dodge Charger Daytona transported to Dunedin to enable MrSuszko to collect it upon its arrival in Dunedin.(c) upon the filing of the Commissioner's Memorandum referred to at(b)(i) above, the restraining order made by this Court on 13 April 2021will be, without further order of the Court, rescinded to the extent theorder (at paragraph [4](d) and [4](i)) relates to the residential propertyof Mr Suszko at 28 Nottingham Crescent, Calton Hill, Dunedin,described in record of title as Lot 9 and Lot 20, Block 11, DP2162 andto Mr Suszko's 2006 Dodge Charger Daytona, registration DODG06;(d) upon the filing of the Commissioner's Memorandum referred to at(b)(i) above, those parts of the Commissioner's on notice applicationdated 17 May 2021 as relate to Mr Suszko's said property and saidvehicle will, without further direction, stand dismissed;(e) as between the Commissioner and Mr Suszko, there is no order as tothe costs and disbursements of this proceeding; and(f) there is an order finally suppressing the amount of the settlement sumreferred to in this judgment. For the avoidance of doubt, thesuppression order affects neither the fact there has been a settlementnor the settlement arrangements (other than the amount of thesettlement sum).Osborne JSolicitors:Crown Solicitor, DunedinSolomons, DunedinCounsel: A L Pinnock, Barrister, DunedinS Saunderson-Warner, Barrister, DunedinLateral Lawyers Limited, AucklandCounsel: C T Patterson, Barrister)Ross Dowling Marquet Griffin, Dunedin