COMMISSIONER OF POLICE v DOAN [2018] NZHC 1813

COMMISSIONER OF POLICE v DOAN [2018] NZHC 1813 [20 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001482[2018] NZHC 1813UNDER The Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND ANH TUAN DOANRespondentOn the papers:Counsel: K E Hogan for ApplicantJudgment: 20 July 2018JUDGMENT OF CHURCHMAN J[1] On 17 July 2018, the applicant applied, without notice, for restraining ordersunder ss 24 and/or 25 of the Criminal Proceeds (Recovery) Act 2009.[2] The application related to interests in two properties 54 Kirton Crescent,Manurewa (certificate of title NA3D/311) and 34 Hunua Road, Papakura (certificateof title NA23C/1207), and a Buccaneer 550 boat, motor and trailer (trailer plateF847G).[3] The applicant also sought an ancillary order in relation to 54 Kirton Crescentand 34 Hunua Road that the mortgagor must not increase the sum outstanding underany loans secured by the mortgages on either property, and that at all times paymentsof the loan to the mortgagee must be maintained.[4] The grounds on which the orders are sought were that there are reasonablegrounds to believe that the property is tainted property, and/or there are reasonablegrounds to believe that the property is the property of the respondent and therespondent has unlawfully benefited from significant criminal activity.[5] In relation to the ancillary orders, they were sought on the basis that it wasnecessary and appropriate to make these orders to allow the Official Assignee topreserve the value of the property in accordance with the statutory duty under s 80 ofthe Act.[6] Detailed affidavits in support were filed by Detective Sergeant Isileli Richard'Aho and Detective Philip James Taylor.The law[7] Applications of this type can be made without notice where there is a risk ofthe proposed restrained property being disposed of, or concealed, if notice were givento the respondent and interested parties, or if the interests of justice require theapplication to be determined without serving notice of the application.[8] I am satisfied on the basis of the affidavit evidence that this is an appropriatecase for the making of without notice orders.[9] In relation to the substantive orders, s 24 of the Act provides the Court maymake a restraining order if it is satisfied, on reasonable grounds, that the property is"tainted property".[10] Tainted property will be property which has been either:(a) acquired as a result of significant criminal activity; or(b) directly or indirectly derive from significant criminal activity.[11] The evidence satisfies me that the applicant has reasonable grounds to believethat the respondent has engaged in significant criminal activity.[12] Section 25 of the Act provides that the Court may make a restraining order ifit has reasonable grounds to believe that the respondent has unlawfully benefited fromsignificant criminal activity. Again, the information set out in the affidavit satisfiesme that the applicant has reasonable grounds for so believing.[13] A restraining order is effectively an interim order of finite duration, althoughit may be renewed on expiry.1[14] The Court is not required to make a finding that the relevant property is taintedproperty, or that the particular person did in fact unlawfully benefit from significantcriminal activity, merely that there are reasonable grounds for so believing.2[15] As Katz J noted in Commissioner of Police v Li:3The threshold for making restraining orders is therefore relatively low,consistent with their role as a "holding" measure.Conclusion[16] I am satisfied that there are reasonable grounds for belief that the tests in ss 24and 25 are met, and that the respondent has insufficient legitimate income to explainhis acquisition of the property in respect to which this application has been made.[17] I am also satisfied that there is risk of disposition if the application is notgranted on a without notice basis, and accordingly the application is granted in termsof the order sought.Churchman JSolicitors:Kayes Fletcher Walker Ltd, Auckland for Applicant1 Vincent v Commissioner of Police [2013] NZCA 412.2 Above n 1.3 Commissioner of Police v Li [2014] NZHC 479 at [8].