COMMISSIONER OF POLICE v GRAY [2015] NZHC 377

COMMISSIONER OF POLICE v GRAY [2015] NZHC 377 [6 March 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-002553[2015] NZHC 377BETWEEN COMMISSIONER OF POLICEApplicantAND ANTONY FREDERICK GRAYRespondentHearing: (On the papers)Counsel: Katie Hogan for the ApplicantPaul Dacre QC for the RespondentJudgment: 6 March 2015JUDGMENT OF MOORE JThis judgment was delivered by on 6 March 2015 at 11:00ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Solicitors:Crown Solicitor, AucklandMr Dacre QC, Auckland[1] The parties seek this Court's approval under s 95 of the Criminal Proceeds(Recovery) Act 2009 ("the Act") to approve a settlement.[2] The background is that on 20 June 2013 various restraining and forfeiture orders were made in respect of the following property:(a) $80,5000 Whitehills Cash;(b) $215 Gray Cash;(c) $34,642.41 ASB proceeds;(d) Porsche;(e) Range Rover; and(f) Holden.[3] Mr Antony Frederick Gray, the respondent, filed a notice of opposition on 18 June 2013 but did not file any evidence in opposition.[4] Interested parties have been served and have taken no steps in the proceeding. Following the making of the restraining orders on 20 June 2013 the vehicles have been sold. As at 17 February 2015 a total of $177,507.92 (including interest) was held by the Official Assignee.[5] The Commissioner's application was adjourned at various times pendingresolution of the criminal proceedings involving Mr Gray as a defendant. He was later convicted of numerous offences on 17 October 2014 and sentenced on 21 November 2014.[6] Mr Gray and the Commissioner of Police have now reached a settlement which includes the following:(a) Mr Gray will abandon his opposition to the application for asset forfeiture orders;(b) the Commissioner of Police will abandon his application for a profit forfeiture order; and(c) costs will lie where they fall.[7] One minor complication is that in the course of sentencing Mr Gray the District Court Judge purported to forfeit the Whitehills Cash and the Gray Cash under s 32 of the Misuse of Drugs Act 1975. It appears that the Judge was not aware of the present proceedings. Counsel for the Commissioner and Mr Gray, in a joint memorandum, submit that the purported forfeiture under the Misuse of Drugs Act was ultra vires and of no effect and that the Whitecalls Cash and Gray Cash should be made the subject of asset forfeiture orders under the Act. In any event, both counsel are agreed that the net effect is the same irrespective of the source of the jurisdiction; the cash will go to the Crown.[8] Under s 95 of the Act a settlement agreement reached between the Commissioner and another party is required to be approved by this Court.[9] This Court must approve settlement if it is satisfied it is consistent with:(a) the purposes of the Act; and(b) the overall interest of justice.[10] As this Court has previously observed, Parliament has entrusted the Court with a supervisory jurisdiction to ensure that settlements are consistent with the parliamentary intention.1 One of the primary purposes of the Act is the1 Commissioner of Police v Know-All Group Limited & Anor, High Court Auckland, CIV-2010-404- 403, 7 November 2011, per Brewer J at [11].establishment of a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity.2[11] The parties submit that the settlement arrived at between them is "consistentwith the purposes of [the] Act and the overall interests of justice".[12] In particular, the parties submit that:(a) there will be a saving of time and especially cost if the matter can be resolved by consent without a need for hearing;(b) on the balance of probabilities the restrained assets are tainted property because they have wholly (or in part) been acquired as a result of significant criminal activity and/or directly or indirectly derived from significant criminal activity.[13] I am satisfied that in all the circumstances the settlement is consistent withthe purposes and scheme of the Act and the overall interests of justice. In thosecircumstances this Court is required to approve the settlement.[14] Accordingly, I make the following orders upon settlement being approved namely:(a) the following property vests in the Crown absolutely and is to be inthe Official Assignee's custody and control:(i) $80,500 cash sized by Police on 17 April 2013 from Mr Gray'shome address of 307 Whitehills Road, Waitoki;(ii) $215.00 cash sized by Police on 17 April 2013 from Mr Gray at the time of his arrest for several matters including supplying methamphetamine and possession of methamphetamine for supply;2 Criminal Proceeds (Recovery) Act 2009, s 3(1)(a).(iii) A total of $34,642.41 seized from ASB accounts 12-3035- 0430055 suffix 51 and 57 in the name of Mr Gray on 19 April 2013;(iv) 2003 Porsche Cayenne S registration GUH712, VIN number WP1ZZZPZ4LA45862 registered to Mr Gray, currently outstanding;(v) 2003 Landrover Range Rover registration GUH711 registered to Samantha Jodi Adriaanse, located on 22 April 2013 at 307 Whitehills Road, Waitoki;(vi) 2008 Holden SSV Utility registration GNG999, VIN number 6G1EP42H39L170307 registered to William James Cosgrove, currently outstanding; and(b) costs lie where they fall.Moore J