COMMISSIONER OF POLICE v ROBINSON [2021] NZHC 1856

COMMISSIONER OF POLICE v ROBINSON [2021] NZHC 1856 [22 July 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2014-485-008678[2021] NZHC 1856BETWEEN COMMISSIONER OF POLICEApplicantAND HUGH JAMES ROBINSONFirst RespondentAND SVETLANA ROBINSONSecond RespondentAND JAMIE DANIEL ROBINSONThird RespondentAND ROADING CONSULTANTS ANDAPPLICATORS LIMITEDFourth RespondentAND MASHA HOLDINGS LIMITEDFifth RespondentAND AORANGI FAMILY TRUSTSixth RespondentIntituling continued over leafHearing: 30 June 2021Appearances: K South for ApplicantA M S Williams and K E Bucher for Respondents and ThirdInterested PartyJudgment: 22 July 2021JUDGMENT OF DUNNINGHAM JAND BANK OF NEW ZEALAND LIMITEDFirst Interested PartyAND MALTECH PROPRIETARY LIMITEDSecond Interested PartyAND HIGH PERFORMANCE HEALTHLIMITEDThird Interested PartyAND PETER GEOFFREY ROBINSONFourth Interested PartyAND BULLER DISTRICT COUNCILFifth Interested PartyThis judgment was delivered by me on 22 July 2021 at 11 am, pursuant to r 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The first, second, third, fourth, fifth and sixth respondents, and the thirdinterested party (the respondents), apply for an order that these proceedings bedismissed or stayed pursuant to rr 15.1 or 15.2 High Court Rules 2016. Theapplication asserts the delay between seeking a without notice restraining order in July2014, and the filing of an application for civil forfeiture orders on 3 December 2019,amounts to an abuse of process and/or is inordinate and/or has prejudiced therespondents to such an extent that the respondents can no longer obtain a fair trial.[2] The Commissioner opposes the application, saying when the history of theproceedings is considered, there is no inordinate or inexcusable delay, nor any specialprejudice, and the interests of justice require the forfeiture application be heard anddetermined.Background[3] Before discussing the arguments, it is necessary to set out the history of theseproceedings to give some context to the parties' positions, and to show how a delay ofmore than five years arose between filing the without notice application for arestraining order and filing the substantive application for civil forfeiture orders.[4] On 7 July 2014, the Commissioner applied to the High Court in Wellington fora without notice restraining order. The Court granted the without notice restrainingorder on the following day. The order restrained the following residential properties:1(a) 45b Carlyle Street, Sydenham, Christchurch;(b) 1 Palazzo Lane, Riccarton, Christchurch;(c) 5 Bridge Street, Reefton, Buller;(d) 16 Stanley Street, Sydenham, Christchurch.[5] The properties were owned variously by the first, second, fourth and fifthrespondents and the fourth interested party. The grounds for the application includedthat the respondents had unlawfully benefitted from significant criminal activity beingthe first and third respondents' involvement in the distribution of controlled drugs.[6] On 14 July 2014, an application for an on notice restraining order was filed inthe High Court in Wellington. On 6 August 2014 the respondents filed a document inresponse. While they did not oppose the making of an on notice restraining order, theymade reference to the fact that Mr Hugh Robinson (Mr Robinson) and his son,Jamie Robinson (the first and third respondents), would be involved in the criminaltrials arising out of Operation Nebraska, and their lawyer was "instructed to not opposethe forfeiture hearing being set down after the Operation Nebraska trials arecompleted". The on notice orders were made, without opposition on 15 August 2014.1 Restraining orders were also sought in respect of a property at 7 Herald Street, Reefton but thatapplication was abandoned when it was discovered the fifth respondent was no longer the ownerof that property.[7] The Commissioner and the respondents then negotiated over the intended saleof the family home of the first and second respondents at 1 Palazzo Lane, Christchurchwith the Commissioner obtaining a restraining order, by consent, over proceeds of saletotalling more than $500,000. Orders varying the restraining orders were made tofacilitate the sale and release of funds.[8] On 30 July 2015 the on notice restraining order was extended, by consent, fora further period of one year. At this stage, the criminal trial involving Mr Robinsonand his son Jamie Robinson had still not taken place.[9] On 12 August 2016 the on notice restraining order was again extended for afurther period of one year by consent. Again, the trial had not occurred.[10] On 19 October 2016, Mr Robinson was convicted on the following chargesfollowing his jury trial:(a) conspiracy to sell a Class C controlled drug, namely Benzylpiperazine(BZP);(b) four charges of possession of BZP for supply;(c) unlawful possession of a firearm; and(d) unlawful possession of explosives.[11] Following his conviction, Mr Robinson appealed to the Court of Appeal.2 Onappeal, Mr Robinson challenged the pre-trial ruling admitting expert evidence byMs Melanie van der Pol which analysed Mr Robinson's financial activity and thefinancial affairs of his company. Her evidence was relied on to demonstrate that thelarge quantity of cash which Mr Robinson had access to could not be accounted for bythe legitimate sales activity of High Performance Health (HPH), a health food andsupplement business run by Mr Robinson. In particular, her evidence demonstratedhow Mr Robinson set out to disguise, or launder, cash generated by the illegal sale of2 Robinson v R [2017] NZCA 347.BZP through his business and other bank accounts, and through purchasing properties.This was to rebut the defence case that the drugs seized through a search warrant weresimply forgotten leftovers from previously legal manufacture, which Mr Robinsonknew nothing about, and which belonged to his son Jamie Robinson.[12] The Commissioner considered it was appropriate to await the outcome of theCourt of Appeal hearing so he knew whether a retrial would be ordered withMs van der Pol's evidence excluded, before pursuing an application for forfeitureorders.[13] On 4 August 2017 the on notice restraining order was again renewed with theconsent of the respondents.[14] Also on 14 August 2017 the Court of Appeal issued its judgment dismissingMr Robinson's appeal against conviction. This fact was not communicated toDetective Senior Sergeant McGowan, the manager of the Southern Asset RecoveryUnit based in Christchurch, who was the contact point within the police for theseproceedings. It was only in August 2018, when the on notice restraining order againneeded to be renewed (and which was renewed with the consent of the respondents),that the Commissioner became aware that the appeal had been dismissed a year earlier.[15] On 24 October 2018, the parties filed a joint memorandum stating:(a) counsel for the first respondent had recently been instructed (newcounsel was Mr Williams who still represents the respondents);(b) the parties intended to engage in resolution discussions and requiredtime for those discussions to take place; and(c) the applicant was preparing forfeiture proceedings and expected to bein a position to file those proceedings in the New Year if the matter wasnot capable of resolution.[16] In late 2018, the file was transferred to the Christchurch Crown Solicitor'soffice from the Wellington Crown Solicitor's office and that firm has had carriage ofthe file ever since.[17] On 12 December 2018, the parties filed a further joint memorandum saying: resolution discussions have commenced and are ongoing. The partiesrequire further time to continue [those] discussions. If resolution is notpossible by 31 January 2019 [t]he Commissioner expects to be in a positionto file the forfeiture proceedings by 30 April 2019. [18] On 14 May 2019, and after settlement negotiations had failed to reachresolution, a minute was issued by the High Court recording that the Commissionerintended to pursue forfeiture orders.[19] On 12 August 2019, the restraining order was again extended with the consentof the respondents.[20] On 2 August 2019, Mr Robinson was examined by the Commissioner pursuantto an examination order. The Commissioner explains that this was done "as part ofthe finalisation of his case". In terms of what the Commissioner calls "unexplainedincome", Mr Robinson claimed in the course of being examined that he had"affidavits" and "bank records" which would support his version of events.[21] On 11 November 2019, the respondents gave notice that they opposed anyfurther extension of the restraining order. On 3 December 2019, the Commissionerfiled the application for civil forfeiture orders.[22] On 14 February 2020, the respondents were directed to file any stay applicationby 6 March 2020, with the case to be called in the list on 23 March 2020. Noapplication was filed by that date and the call-over was vacated. The on noticerestraining order was again renewed by consent.[23] On 31 July 2020, the respondents filed the application to stay or strike out theproceedings.[24] It is in the context of that chronology of events that the respondents make theirapplication to dismiss or stay the proceedings.The legal principles[25] The parties agree on the legal principles applying to an application for an orderdismissing a proceeding for want of prosecution. Those principles were summarisedin Lovie v Medical Assurance Society New Zealand Ltd as follows:3the applicant must show that the plaintiff has been guilty of inordinate delay,that such delay is inexcusable, and that it has seriously prejudiced thedefendant. Although these considerations are not necessarily exclusive, andat the end one must always stand back and have regard to the interests ofjustice, if the application is to be successful, the applicant must commenceby proving the three factors listed.[26] While Lovie identifies three relevant considerations; inordinate delay, that isinexcusable, and which seriously prejudices the defendant, the overridingconsideration is whether justice can be done at the trial despite the delay.4The respondent's submissionsIs there inordinate delay?[27] Mr Williams submits that all three criteria are met in this case, thus warrantingthe stay or dismissal of the proceedings. Mr Williams points out more than five yearselapsed between the making of the restraining orders and the eventual filing of theapplication for a forfeiture order. This is contrary to the intention noted by Mander Jin Commissioner of Police v Jiang, that restraining orders are short term measures:5[17] Restraining orders are temporary measures. They are "interim ordersof limited duration", intended "to preserve property while the Crown isgathering evidence to support an application for forfeiture".Mr Williams says the intention that restraining orders be of limited duration isreinforced by s 37 of the Criminal Proceeds (Recovery) Act 2009 (the Act), which3 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 (HC) at 248.4 Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA) at 579.5 Commissioner of Police v Jiang [2016] NZHC 2782 (footnotes omitted).provides that a restraining order expires one year after the day on which it is made. Itrequires an application to the Court under s 41 of the Act to extend it.[28] Mr Williams submits the delay of almost five and a half years before theapplication for civil forfeiture orders was eventually filed inevitably qualifies as"inordinate delay". This is demonstrated by the comments of Ronald Young J inCommissioner of Police v Malcolm, where a restraining order had been on foot fornearly three years while criminal proceedings were completed.6 In the face ofopposition to a further extension, Young J was only prepared to extend the restrainingorder for a further month, saying "this should be ample time for the Police to make anapplication for a profit forfeiture order".7 Given the time from filing the restrainingorder application to filing the application for a civil forfeiture order was less inMalcolm than in this case, but was still described as being "significantly delayed", thedelay here must be inordinate delay in terms of r 15.2.Was the delay excusable?[29] In terms of whether the delay was excusable, Mr Williams initially submittedthat no excuse had been offered by the applicant for the delay. In oral submissions,Mr Williams accepted that the delay prior to resolution of the criminal proceedingswas explicable, but the delay from the release of the Court of Appeal's decision to thefiling of the civil forfeiture order application, was not. In particular, he rejected thesuggestion that delays caused by the Commissioner's lawyers (in particular by failingto advise the outcome of the appeal), or by "operational constraints" as outlined in theevidence of Detective Senior Sergeant McGowan, amounted to a "reasonable excuse".[30] In terms of delay caused by legal advisers, Mr Williams relied on the followingobservation in Lovie v Medical Assurance Society New Zealand Ltd:8In these circumstances, to be sustainable any excuse would need to beconvincing. But putting it baldly and without any intention of being unkind,the explanation was simply that plaintiffs' counsel was busy and gave otherwork priority. This provides no excuse for either the barrister or his instructingsolicitors. Thus the question of prejudice becomes critical.6 Commissioner of Police v Malcolm [2013] NZHC 132.7 At [6].8 Lovie v Medical Assurance Society New Zealand Ltd, above n 2, at 253.[31] Mr Williams also pointed to the case of Birkett v James, where Lord Diplocksaid:9Where an action is dismissed for want of prosecution the fault must lie eitherwith the plaintiff or with his solicitors or both. Which of them is to blame forthe inordinate and inexcusable delay does not affect the prejudice caused tothe defendant, which is the justification for the dismissal of the action; [32] Relying on these cases, Mr Williams says that the operational commitmentsoutlined in Detective Senior Sergeant McGowan's affidavit, including evidence of theother large cases relevant staff members were dealing with at the time, cannot amountto a reasonable excuse, nor can delays caused by the Commissioner's lawyer.[33] Similarly, Mr Williams submits that delays while the parties were discussingsettlement does not excuse the applicant's delay. In New Zealand Industrial Gases Ltdv Andersons Ltd, McCarthy J made the following observation:10The second question is whether this delay was excusable and here we differfrom the learned judge in the Court below who thought that over some of thetime that was so because of the intimations from Mr Collins that settlement insome very small sum might be achieved. We place less weight on theseobservations, though we think it fair to say that though Mr Collins wasgrowing impatient at the procrastination, he gave little evidence that hebelieved the action was dead, and indeed as late as December 1967 wasprepared to sign a praecipe to set down. But fundamentally it was theplaintiff's job to press on, and we think it failed lamentably and inexcusablyover the whole of this period. We are not prepared to mince words about that.[34] Likewise, in Nikau Holdings Ltd v Bank of New Zealand, Master Thompsonstruck out proceedings pursuant to r 478 of the High Court Rules in force at the time.11In Nikau Holdings the proceeding was not issued until three to four years after theevents in question, and it then took nearly nine years for a praecipe to be filed. Inrespect of the argument that some of the delay resulted from settlement negotiations,Master Thompson said "[a]nyway it is settled law that entering into settlementnegotiations cannot excuse a plaintiff's failure to progress his case to trial in anexpeditious manner."129 Birkett v James [1977] 3 WLR 38 (CA) at 51-52.10 New Zealand Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58 (CA) at 62.11 Nikau Holdings Ltd v Bank of New Zealand (1997) 11 PRNZ 254.12 At 261.[35] In Mr Williams' submission, the adjournments which were sought by consentfor the purposes of advancing settlement negotiations should not be excluded whenconsidering whether there has been inexcusable delay in filing the application for civilforfeiture orders.Is there serious prejudice to the respondents?[36] The key plank to Mr Williams' argument on behalf of the respondents is thatthe delay has caused serious prejudice, particularly as outlined in the affidavits ofMr Hugh Robinson and his wife Svetlana Robinson.[37] Mr Robinson's affidavits outline that the following witnesses have now passedaway or are otherwise unavailable:(a) Duncan McFarlane (died 30 December 2010);(b) Nancy Emms (died 16 May 2017);(c) Ernest Madden (died 22 October 2018);(d) Alistair Barr (died 17 January 2019);(e) Guy Devereaux (died 9 February 2019);(f) Alene Robinson (died 1 August 2019);(g) Barbara Gutry (died 22 October 2019);(h) James Robinson (died 25 May 2021, but prior to that had dementia);and(i) David Gutry (died 5 June 2021);(j) Murray Wright (suffering from anxiety and unwilling to give evidence).[38] Mr Williams points out that the Commissioner is seeking civil forfeiture orderson the basis that Mr Robinson unlawfully benefited from significant criminal activityand on the basis that the property proposed to be forfeited is tainted property becauseit was acquired directly or indirectly from significant criminal activity. However,Mr Robinson opposes the orders sought on the grounds that he did not profit fromsignificant criminal activity, nor was the property he owned tainted property. Theproperty was purchased from funds which were legitimate. He explains that he hadboth cash sales from his business and he had a: group of friends who over many years would borrow money from oneanother for the purpose of making investments. From time to time, I wouldborrow money from them or sell items to them to assist me in makinginvestments, on other occasions I would lend money or purchase items toenable them to do so.[39] He also gives evidence that some of the cash sums came from the sale of threepaintings owned by his wife, purportedly by Pablo Picasso, Salvador Dali andRaoul Dufy, along with sale of jewellery his wife inherited.[40] Mr Robinson deposes that each of the witnesses would have given evidence asto the sources and legitimacy of the funds which were used to acquire the property,which is clearly relevant to the respondents' case at trial. The evidence they wouldhave been able to give is summarised in Mr Robinson's affidavits as follows:(a) Guy Devereaux would have been able to testify that he purchased bulksynthetic cannaboid products for cash from 2010 to March 2013 (beforethey were made illegal);(b) Alistair Barr would have testified to the authenticity and sale ofpaintings purchased from Mr Robinson's wife Svetlana Robinson.While these paintings were purchased by David Gutry, they were latersold to Alistair Barr.(c) Duncan McFarlane would have testified that he purchased jewelleryfrom Svetlana Robinson in exchange for cash and motor vehicles.(d) Ernest Madden was a car dealer who had numerous transactions withDuncan McFarlane which involved jewellery Duncan McFarlane hadpurchased from Svetlana Robinson's inheritance.(e) Barbara Gutry could corroborate her husband's testimony that he hadlent money to Jamie Robinson to purchase 16 Stanley Street,Sydenham, and she would support her husband David Gutry's evidencethat he purchased three paintings for cash from Svetlana Robinson'sinheritance.(f) Nancy Emms was Mr Robinson's mother and would have givenevidence about the existence and sale of jewellery fromSvetlana Robinson's inheritance from Russia.(g) Alene Robinson was Mr Robinson's stepmother and would have givenevidence in support of the existence of the sale of jewellery thatSvetlana Robinson had inherited.(h) James Robinson was Mr Robinson's father. Mr Robinson would havebeen able to affirm the legitimacy of Svetlana Robinson's inheritance.He had seen the artwork and other assets left to her and would giveevidence of this.(i) Murray Wright is Jamie Robinson's father-in-law. Mr Robinson saysthat Mr Wright suffers from "debilitating anxiety". But for thiscondition he would have given evidence to say that he lent JamieRobinson $50,000 towards the purchase of 16 Stanley Street,Sydenham on 2 July 2013. This sum was transferred directly from hisbank account to the trust account of Hill Lee and Scott, Solicitors.Because of his anxiety, when he was interviewed by Detective Bull, hemisrepresented the true amount of the loan, saying it was $40,000 whenthe bank transfer clearly shows $50,000.(j) David Gutry would have given evidence about a number of transactionswhich are relevant to the case, and in addition would supportMr Robinson's evidence that he, Mr Gutry, and their friends would lendmoney to one another on the basis of a gentleman's agreement.[41] In addition, Mr Robinson says that other witnesses, because of age, would nowstruggle to remember the transactions for the purpose of Court proceedings. Forexample, he says Fritz Petersen, who is 75 years of age, borrowed money offMr Robinson in 2012 and later returned it, but he cannot now remember any detailsabout this, and Reginald Edmonds, who was present when Duncan McFarlane boughtjewellery off Mr Robinson, would now struggle to recall this, because of his age.[42] Mr Williams strongly rejects the Commissioner's contention that Mr Robinsonhas had ample opportunity both when defending the criminal charges he faced, and asa consequence of the restraint proceedings, to marshal his witnesses and gatherevidence to present in Court. Mr Robinson's position is that the charges he was facing,which involved possession of firearms, possession of Class B controlled drugs andconspiracy to supply Class B controlled drugs, did not require him to prove thelegitimacy of his assets. Because the Commissioner was not required to prove thatsupply had in fact occurred, much of the evidence which Mr Robinson intended toadduce for the forfeiture application, would have been irrelevant or inadmissible inthe criminal proceedings. Mr Williams says Mr Robinson cannot be criticised for nothaving called, during his criminal trial, the witnesses he now intends to call, as theambit of the civil forfeiture order proceedings are quite different from the criminalproceedings he went through in 2016.[43] Mr Robinson also cannot be criticised for not obtaining the evidence inadvance of civil forfeiture order proceedings being brought (and incurring costs indoing so), as it was not inevitable that such proceedings would follow the restrainingorder. In short, Mr Williams submits the applicant's failure to make the applicationfor forfeiture orders in a timely manner has meant Mr Robinson is now deprived ofthe ability to call evidence from key witnesses in his defence. In those circumstances,he cannot get a fair trial.[44] Mr Robinson also outlines the prejudice caused to him by the ongoing presenceof the restraining order. He says it has limited his ability to rent out the properties heand related parties own, causing loss of income, has limited his business opportunities,including to market an anti-inflammatory product called Theragold more widely, andhas had a general impact on his and his wife's standard of living and health.Dismissal for abuse of process[45] Alternatively, the respondents submit that the proceedings should be dismissedpursuant to r 15.1(1)(d). He points out that abuse of process can take many forms andone potential ground of abuse of process is where a party has, commenced or pursueda proceeding in relation to a claim that is so stale that a fair trial is now impossible and"justice could no longer be done".13[46] For the same reasons as are relied on to support the application for dismissalfor want of prosecution, Mr Williams submits that to allow the proceedings to continuewould be an abuse of the Court processes.The applicant's submissionsIs there an inordinate delay?[47] The Commissioner accepts there has been delay, but does not consider therehas been inordinate delay in this case. Ms South points out that Mr Robinsonemphatically denied that he was responsible for BZP manufacture or sale after itbecame unlawful, and he blamed the possession of all items on his son and oninadvertent possession without any intention of supply. He disputed the evidence ofMelanie van der Pol regarding his financial transactions which countered this defenceand he called his own trial evidence about where his surplus funds had come from. Inthose circumstances, the Commissioner considered it was appropriate to wait the resultof the criminal prosecution before proceeding with the forfeiture application. AsMs South says, the outcome of the criminal case would have a direct impact on themanner and scope in which the forfeiture application was cast. She also notes that the13 A C Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.05].respondents were explicit that they consented to the forfeiture proceedings being dealtwith after the criminal proceedings.[48] Ms South points out that it was not appropriate to file the application inadvance of the criminal trial and then seek amendments later. Indeed, s 47 of theCriminal Proceeds (Recovery) Act 2009 prohibits the Commissioner from amendingan application to include additional property unless specified circumstances arise.Furthermore, she points out that requiring the Commissioner to file and prosecute theforfeiture application ahead of a criminal jury trial would inevitably spark justifiedcomplaint on the part of the respondents that their right to silence was being abrogatedby the need to give evidence in a civil context in order to defend their assets.[49] In Ms South's submission, the operative delay is between August 2017, whenthe Court of Appeal dismissed Mr Robinson's appeal against conviction, and3 December 2019 when the application was filed. This is a delay of two years andthree months. However, in that time a number of events took place:(a) Mr Robinson was a sentenced prisoner at the beginning of this perioduntil his parole on 26 February 2018;(b) the restraining order was renewed in 2018 by consent;(c) the file was transferred to the Christchurch Crown Law Office in late2018;(d) good faith settlement negotiations were on foot from late 2018 until late2019;(e) the restraining order was renewed in July 2019 by consent;(f) Mr Robinson was examined in August 2019.[50] In Ms South's submission this cannot be described as delay which wasmaterially longer than the time which was usually regarded by the Courts and theprofession as an acceptable period of time, although she accepts that the overall delayis unsatisfactory.Was the delay excusable?[51] The Commissioner's submissions on whether the delay is excusable rely, inpart, on the submissions made in support of saying the delay was not inordinate. Inaddition, Ms South submits that any delays were not deliberate or the result of laziness.While there was a lack of communication for one year with the Commissioner,between the outcome of the appeal and when a further extension was sought for therestraining order, in all other stages, the Commissioner was diligent and consistent inhis efforts to resolve and finalise the case.[52] Furthermore, there were other significant operational demands on the SouthernAsset Recovery Unit, with five other significant files that were being dealt with by astaff of five at the time the Robinson file was being prepared.Is there serious prejudice to the respondents?[53] The Commissioner submits the respondents cannot claim serious or incurableprejudice in this case as a result of the delay. The starting point is the evidence whichis sought to be called regarding the sale of paintings and jewellery whichSvetlana Robinson inherited, along with cash loans, is still available as Mr Robinson,his wife and his son are still available to give evidence. Thus, the crux of the evidencethey seek to call can still be adduced from them as the primary witnesses. What therespondents really complain about is their impaired ability to call corroborativeevidence of those transactions from people they know.[54] In addition, the significance of any prejudice needs to be seen in the context ofthe criminal trial and the issues raised in it as well as the fact Mr Robinson was onnotice of the Commissioner's intention to seek forfeiture orders since 2014, and yetfailed to obtain affidavits or witness statements from that time onwards. Ms Southnotes that only one of the witnesses proposed to be called, David Gutry, was called atthe criminal trial, despite the importance of that occasion from Mr Robinson.Ms South also notes that one proposed witness, Duncan McFarlane, died in 2010, sothere is no prejudice occasioned through the Commissioner's delay in respect of thatwitness.[55] In any event, she notes that at his examination on 27 August 2019, as to thesources of his cash sums, and the funding of 16 Stanley Street, Mr Robinsonemphatically claimed that the witnesses had "all given [him] affidavits". This is quitecontrary to his current claim that he needs the oral evidence of these witnesses.[56] Ms South says the submission that the evidence at Mr Robinson's criminal trialwas addressing completely different issues from those that arise in the currentproceedings is inaccurate. The criminal trial did turn on the legitimacy of cashbankings and funds that paid for assets as evidence which countered his assertion hehad nothing to do with the supply of controlled drugs. This was the whole point ofMs van der Pol's evidence which Mr Robinson challenged on appeal. It was also thereason Mr Robinson called seven witnesses to try and explain the legitimacy of hiscash resources. In that regard, Mr Gutry gave evidence at that trial and there is noreason why that evidence cannot be adduced as hearsay evidence.[57] In summary, Ms South submits while there are aspects of delay, it is not at alevel that can be described as inordinate, and in the circumstances, as outlined, thedelay is excusable. In any event, the actual prejudice to the respondents is limited.The Court is not deprived of the evidence which is central to the respondents' case andjustice can be done at trial despite the delay. As it is in the public interest to deal withthe allegation that the respondents have unlawfully benefited by at least $1,400,000 asa result of the significant criminal activity, it is in the interests of justice for theapplication to be heard and determined.DiscussionWas there inordinate and inexcusable delay?[58] The considerations of inordinate and inexcusable delay are linked, as the word"inordinate" means "excessive",14 and that carries with it the implication that the delay14 Catherine Soanes and Angus Stevenson (eds) Concise Oxford English Dictionary (11th ed, OxfordUniversity Press, Auckland, 2004) at 733.is unjustified or unwarranted. Excusable delay will not, generally, be inordinate delay.Thus, while the delay between filing the restraining order application and filing thecivil forfeiture order application is acknowledged to be significant, the real issue iswhether it is inexcusable.[59] In my view, and Mr Williams accepted this in submissions, the delay until theconclusion of the criminal proceedings was clearly excusable. The respondentsactively sought this delay, for obvious reasons. The respondents would have beenprejudiced if the application for civil forfeiture orders had gone ahead while they weredefending the criminal proceedings, particularly as the respondent's right to silencewould have been compromised.[60] I also accept that the Commissioner's case could not reasonably be finaliseduntil the criminal proceedings had concluded. Evidence may have emerged in the casewhich contradicted the Commissioner's claims, necessitating an amendment to theCommissioner's case. It was sensible for the Commissioner to hold off filing theapplication for civil forfeiture orders until the criminal case was concluded, and therespondents' claims that the cash sums received by them and used to acquire propertywere tested in that forum.[61] The delay which is not excused is the delay between the delivery of the Courtof Appeal's decision on Mr Robinson's criminal appeal, and the application for anextension of the restraining orders made a year later. While this is explained by acommunication failure, there was a clear failure on the part of the Commissioner'sadvisors to keep the Commissioner informed.[62] However, I do not consider the Commissioner can be criticised for the delaysfrom August 2018 onwards, as these are reasonably explained.[63] First, there was a natural hiatus when Mr Williams was instructed as counselfor the respondents in late 2018. He needed to acquaint himself with the file and thento see if settlement was possible before the respondents had to address an applicationfor civil forfeiture orders.[64] While I accept that the fact of settlement discussions is not ordinarily acceptedas an excuse for delay, in the cases relied on by the respondents there was nosuggestion in those that the defendant had agreed to a delay. In my view, thecircumstances in the present proceedings are different. A joint memorandum was filedconfirming the parties' agreement to settlement discussions, and, at least for someperiod, to a delay by the Commissioner in filing the civil forfeiture order application.This is also indicated by the continuing consent to the restraining orders.[65] From the point the settlement discussions broke down, I accept that theCommissioner acted reasonably expeditiously. There was an application for an orderfor examination of Mr Robinson, which was clearly relevant to the preparation of theapplication for profit forfeiture orders.15 Three and a half months after theexamination took place, the forfeiture application was filed.[66] Ironically, the subsequent delays have been the result of the respondent's delay.On 14 February 2020, Osborne J directed that any stay application be filed and servedby 6 March 2020. The application itself was only filed on 31 July 2020 and thesupporting affidavits not served until 3 September 2020. Any loss of witnesses afterthis date, cannot be attributed to the applicant.[67] In summary, the delay was significant, but largely excusable, although a yearof it was not adequately explained. Nevertheless that, on its own would not justifygranting the application if justice can still be done.Is there serious prejudice to the respondent?[68] In my view, the application turns on whether there is such serious prejudice tothe respondents as a result of the delay, that it is appropriate to dismiss or stay theproceedings. As Eichelbaum J said in Lovie v Medical Assurance Society NZ Ltd,"[a]n overriding consideration is whether justice can be done despite the delay".16[69] Before discussing Mr Robinson's ability to conduct his defence, I note he givesevidence that the ongoing restraining orders have restricted their ability to rent the15 Under s 106 Criminal Proceeds (Recovery) Act 2009.16 Lovie v Medical Assurance Society New Zealand Ltd, above n 2, at 253.properties and caused them financial hardship. However, I accept the Commissioner'ssubmission that the orders did not prevent them from renting the properties andcollecting that rental, nor have the orders affected their employment opportunities.Any other hardship can be addressed, if it meets the statutory threshold, in the contextof the civil forfeiture order application.[70] The respondents' defence is that the property and money that is restrained canbe shown to have come from legitimate sources and is not in any way linked to theoffending Mr Robinson was convicted of.[71] The first issue is whether, taken at face value, the witnesses could giveevidence which is relevant to the respondents' defence. I accept that, at leastsuperficially, the unavailable witnesses could confirm that:(a) the jewellery and artworks existed;(b) they were sold by Mr Robinson for cash sums; and(c) he obtained cash in other ways, for example, through undocumentedloans from friends, or by the sale of synthetic cannabis products beforethey were made illegal.[72] However, the Commissioner challenges the utility of this evidence in a numberof ways:(a) most of the evidence was not thought of sufficient utility forMr Robinson to call it in the criminal proceedings where the source ofthe large sums of cash he had access to, was in issue;(b) some of the witnesses have convictions themselves including for drugand dishonesty offending (Fritz Peterson, Reginald Edmonds,Guy Devereaux, Alistair Barr and Ernest Madden) and their credibilityis questionable;(c) the scope of some witnesses' evidence appears to have changed overtime, or is inherently implausible (for example, David Gutry's evidencethat he purchased the paintings without having them checked forauthenticity, did not know where they came from, or who the artistswere, and relied on a verbal valuation from Mr Robinson at the time hepurchased them).[73] An application for stay or dismissal of the proceedings is not a mini trial andthis Court cannot resolve issues of credibility in this type of hearing. However, Iaccept the Commissioner's submission that the key witnesses, who can attest toSvetlana Robinson owning and selling the paintings and jewellery, and to the otheralleged financial dealings, are still available. This is not a case where the primarywitnesses are lost through the delay.[74] Furthermore, it is clear that a number of the relevant transactions involve thirdparties who are still available, or where there should be a paper trail to demonstratethe source or the destination of the funds. For example, when Mr Robinson wasexamined on 27 August 2019, and was asked to explain the source of the $430,000which funded the purchase of 16 Stanley Street, he explained this as follows:(a) $8,000 deposited by Murray Coates, who was Mr Robinson's officemanager, this money came from his mother-in-law Jeanette Healey.Mr Robinson also stated "I've got an affidavit supporting this andshe can produce bank records".(b) $5,000 from Aleksey Kiroshka, being repayment of moneyMr Robinson had lent his mother.(c) $2,000 from the Global Commodities account.(d) $5,000 from Global Commodities from the sale of a car.(e) $5,000 "a loan from Dave Gutry", which Mr Robinson guaranteed.(f) $6,000 which was "another loan from Jeanette Healey".(g) $9,000 came from Sasha Radujko, being "key money to secure thelease".(h) $50,000 which Jamie Robinson borrowed from his father-in-lawMurray Wright;(i) $35,000 which was from David Gutry as a loan;(j) $8,000 which came from a truck Mr Robinson sold to a Mike Kingwhich is covered by an affidavit from Mike King, and whereMr Robinson produced an NZTA transaction receipt showing thechange of ownership.[75] It is evident that most of these people are still available as witnesses. Therewill also be records, such as bank records which could authenticate these statements,if correct. Furthermore, Mr Robinson, himself said during the examination that he hadaffidavits from these people to support these statements. He has not resiled from thatposition in evidence before this Court. While I accept there was no onus or obligationon him to marshal his evidence in advance of the civil forfeiture order applicationbeing filed, if he has done this, he cannot claim prejudice.[76] I also accept the Commissioner's position that the source of Mr Robinson'sfunds was squarely in issue in his criminal proceedings. Ms van der Pol's evidencewas called for the express purpose of demonstrating Mr Robinson was receiving largesums of cash which were otherwise unexplained, to demonstrate he was connected tothe supply of BZP, even if that was not the specific charge he faced. Furthermore, hecalled witnesses, including David Gutry, Aleksey Kiroshka, Fritz Petersen,Michael King and Paul McKay at his criminal trial, to attest to some of the transactionswhich were said to give rise to the quantities of cash Mr Robinson had. Thosewitnesses are either available or their evidence may be adduced as hearsay evidence.It is a logical inference that if other parties had credible evidence to give in support ofthat position, they, too, would have been called.[77] Mr Robinson still has a range of witnesses available, including most of thosehe called at his criminal trial, to give oral evidence regarding the source of the fundswhich are in question. More importantly, there is no reason why he cannot obtain andproduce bank, company or law firm records at the hearing which would reliably tracewhere funds came from, if, in fact, their source is legitimate.[78] In summary, I am left in no real doubt that Mr Robinson is able to conduct hisdefence and sufficient witnesses remain who could corroborate his defence, if true, forjustice to be able to be done.Result[79] Accordingly, the application to dismiss or stay the proceedings is dismissed.[80] Costs should follow the event and my preliminary view is that costs should beawarded on a 2B basis. If costs cannot be agreed, I reserve leave for counsel to filememoranda on any disputed issue. Any such application must be filed within20 working days of the date of this decision.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:A M S Williams, Barrister, Christchurch