The Commissioner of Police v Ireland [2016] NZHC 968

The Commissioner of Police v Ireland [2016] NZHC 968 [13 May 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-3044[2016] NZHC 968UNDER the Criminal Proceeds (Recovery) Act2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND DANE CONNOR IRELANDRespondentHearing: On the papersCounsel: KE Hogan for applicantPJB Winter for respondentJudgment: 13 May 2016JUDGMENT OF FAIRE JThis judgment was delivered by me on 13 May 2016 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Solicitor at ManukauTo: PJB Winter, Auckland[1] On 17 December 2015, the Commissioner of Police filed a without notice application for restraining orders under the Criminal Proceeds (Recovery) Act 2009 in respect of a 2009 white Mercedes C63 motor vehicle, registration JKQ464, registered to PI Contractors Ltd. Also on that date, the Commissioner filed an on notice application for restraining and forfeiture orders in respect of the Mercedes and $101,420 cash, located on 25 November 2015.[2] On 17 December 2015, without notice restraining orders were made in respect of the Mercedes. On 3 February 2016, on notice restraining orders were made by consent in respect of the Mercedes and the cash.[3] On 22 January 2016, the respondent filed a notice of opposition to forfeiture orders. On the same day, the registered owner of the Mercedes, PI Contractors Ltd, applied to exclude the Mercedes from any civil forfeiture order made in the proceeding, initially on the grounds of undue hardship but now on the grounds ofhaving an interest and not being involved in the respondent's significant criminalactivity.[4] The Commissioner, the respondent and PI Contractors Ltd have agreed tosettle this proceeding subject to the court's approval under s 95(2) of the Act.[5] Section 95 of the Act governing settlements provides:95 High Court must approve settlement between Commissioner and other party(1) The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approves it.(3) The High Court must approve the settlement if it is satisfied that it is consistent with—(a) the purposes of this Act; and(b) the overall interests of justice.The facts[6] The Commissioner's application for forfeiture rests on the affidavit of YisuLee, sworn on 16 December 2015. For the Commissioner it is asserted that:(a) Given the profit being derived from the respondent's cannabis sales,the court can be satisfied that the Mercedes' acquisition was fundedfrom that activity;(b) It appears that the respondent was present when the Mercedes was purchased;(c) The Mercedes was used by the respondent from the date of its purchase;(d) The respondent refers to the Mercedes as "my car" in text messages;(e) There is text message evidence that the respondent was using the Mercedes to facilitate drug deals;(f) Drugs, more than $100,000 cash and personal effects of the respondent were located in the Mercedes on 25 November 2015.[7] On 11 April 2016, the shareholders of PI Contractors Ltd, who are therespondent's parents, filed and served affidavits with corroborative exhibits regarding their lack of knowledge of the respondent's offending and their financial circumstances and how they funded the acquisition of the Mercedes.[8] The Commissioner has reconsidered PI Contractors Ltd's application forrelief in the civil proceedings.[9] Counsel draws attention to the fact that even though:(a) The Mercedes is also presently restrained pursuant to s 26 of the Act because the respondent has been charged with qualifying instrumentforfeiture offences, and there are reasonable grounds to believe that the Mercedes is an instrument of crime used to facilitate those offences; and(b) Unless varied the section 26 restraining order over the Mercedes will remain in force until the respondent is acquitted of the criminal charges or, if he is convicted, once instrument forfeiture is determined by the sentencing court.PI Contractors Ltd would be entitled to seek relief on the same grounds in the criminal jurisdiction.[10] The parties have reached a settlement as follows:(a) Asset forfeiture orders can be made by consent in respect of the cash;(b) The Commissioner forgoes his application for an asset forfeiture order in respect of the Mercedes;(c) The Commissioner files a consent application to vary the restraining orders, such that the Mercedes is forthwith released from restraint andreturned to the respondent's parents, Mr and Mrs Ireland;(d) The Commission forgoes his application for a profit forfeiture order in respect of Dane Ireland.[11] When considering the approval of this settlement, I am required to be satisfied that it is consistent with the purposes of this Act and overall interests of justice. I accept the submissions that have been advanced that this settlement is consistent with the purposes of the Act and note:(a) The cash will be forfeited and the Mercedes will be returned to its registered owner. This result has been achieved after the sworn evidence has been considered and all parties have received legal advice;(b) The settlement is a full and final settlement of the issues and is made on the basis that costs will lie where they fall; and(c) There will be a considerable saving in time and cost.[12] I am satisfied that in addition to the purposes of the Act being satisfied the settlement is in accordance with the overall interests of justice.[13] Accordingly, I approve the settlement and order:(a) Asset forfeiture orders are made in respect of the cash;(b) The Mercedes is forthwith released from the restraint and shall be returned to Mr and Mrs Ireland;(c) The Commissioner's application for a profit forfeiture order in respectof Dane Ireland is dismissed; and(d) There will be no order as to costs.____________________JA Faire J