COMMISSIONER OF POLICE V JIULIANG WEI COA CA852/2011

COMMISSIONER OF POLICE V JIULIANG WEI COA CA852/2011 [27 June 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA852/2011[2012] NZCA 279BETWEEN COMMISSIONER OF POLICEAppellantAND JIULIANG WEIFirst RespondentAND DREAMLAND FINANCE LIMITEDSecond RespondentAND XIANG ZHANGThird RespondentCA853/2011AND BETWEEN COMMISSIONER OF POLICEAppellantAND SCOTT JAMES CORLESSRespondentHearing: 26 April 2012Court: O'Regan P, Ellen France and White JJCounsel: D G Johnstone and R M A McCoubrey for AppellantNo appearance for Mr WeiNo appearance for Dreamland Finance LimitedM J Dyhrberg and B J Hunt for Mr ZhangV Withy for Mr CorlessJudgment: 27 June 2012 at 10.30 amJUDGMENT OF THE COURTA The appeal in CA852/2011 is dismissed.B The appeal in CA853/2011 is dismissed._______________________________________________________________REASONS OF THE COURT(Given by O'Regan P)Introduction[1] These two appeals by the Commissioner of Police were heard together.1 A third appeal, Commissioner of Police v Burgess,2 was heard at the same time but will be the subject of a separate judgment. In both appeals, the Commissioner challenges decisions by High Court Judges to adjourn civil proceedings under the Criminal Proceeds (Recovery) Act 2009 (CPRA) until after criminal proceedings against the respondents had been completed. The Commissioner says the High Court should have proceeded with the hearings of the civil proceedings under the CPRA.Jurisdiction[2] The civil proceedings under the CPRA in the High Court in both cases were applications by the Commissioner for forfeiture orders in relation to property whichthe Commissioner said was "tainted property" in terms of the CPRA. There is nodoubt that such applications are civil in nature.3 The right of appeal in relation to decisions made in the civil jurisdiction of the High Court is extremely broad, and encompasses even interlocutory decisions on matters of procedure such as decisions to adjourn.4 There was no challenge to this Court's jurisdiction to hear the appeals.1 The decisions under appeal are Wei v Commissioner of Police HC Auckland CIV-2010-404-5461, 24 November 2011 and Corless v Commissioner of Police HC Auckland CIV-2010-404-5585, 15 December 2011.2 On appeal from Commissioner of Police v Burgess HC Auckland CIV-2010-404-2893, 10 May2011.3 Criminal Proceeds (Recovery) Act 2009, s 10.4 See Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.Mootness[3] Matters have moved on since the High Court decisions. Mr Zhang's trial hasnow taken place and he was acquitted. However, the Commissioner still intends to pursue a civil forfeiture order. Neither Mr Wei (who has fled the jurisdiction) nor Dreamland Finance Ltd pursued the appeal. The circumstances mean that Mr Zhang's appeal is now moot. However, his counsel, Ms Dyhrberg, said she didnot take the point and was happy for the Court to proceed with the hearing of the appeal.[4] In relation to Mr Corless, his trial had not taken place at the time of the hearing of the present appeals, but was so imminent that it would not have been possible for there to be a hearing of the application for civil forfeiture orders before that trial took place. In that sense, the appeal was also moot in relation to Mr Corless. His counsel, Ms Withy, was also content to argue the appeal on its merits, notwithstanding that it is essentially moot in relation to Mr Corless. We understand that his trial has taken place since the hearing of the appeals and he was convicted of a number of drug-related offences.[5] We are satisfied that it is appropriate to hear the appeals, given that the issues they raise are matters that have not come before this Court before and will provide guidance on situations that will often arise in the High Court in the future. We are satisfied that the mootness of the appeals before us does not deprive us of jurisdiction to hear them, and that it is appropriate in the circumstances of this case to hear them.5Issues[6] The sole issue for determination in each appeal is whether an adjournment ought to have been given. That must be considered against the background that adjournment decisions are discretionary and an appellate court needs to be sensitive5 Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [15]–[30].to the practical reality that trial courts need to be able to have control over the conduct of proceedings before them.[7] Underlying the decision to adjourn both appeals, however, was the view taken by the High Court Judges that there was nothing in the CPRA that required that priority be given to the civil proceedings under the CPRA over the criminal trials of Mr Zhang and Mr Corless respectively. That led the High Court Judges to evaluate the potential impact of the efforts that Mr Zhang and Mr Corless would need to undertake to defend the civil forfeiture order applications on their subsequentcriminal trials. Of particular relevance was the fact that Mr Zhang's andMr Corless's opposition to the civil forfeiture order applications could well involvetheir giving evidence and being cross-examined in the civil proceeding by a lawyer representing the Commissioner. The concern was that, notwithstanding certain safeguards, their giving evidence and being cross-examined could assist the police and the prosecution in relation to the investigation and prosecution of the criminal charges against them. Consideration of this aspect of the case requires us to considerthe scope of a criminal defendant's rights under the New Zealand Bill of Rights Act1990 (the Bill of Rights).[8] Before turning to these issues, we will briefly summarise the factual and procedural background.Background[9] Both of these cases involve applications by the Commissioner for civil asset and profit forfeiture orders under the CPRA. In both cases the respondents argued in the High Court that the application for forfeiture orders should be adjourned untilafter the respondents' criminal trials had been determined. In both cases,adjournments were granted.[10] The Wei proceeding concerns three accused parties: Mr Wei, Dreamland Finance Ltd, and Mr Zhang. Mr Wei and Mr Zhang were both charged with money laundering. Mr Zhang was remanded on bail at the time of the High Court judgment,but has now been acquitted. Mr Wei has absconded to China and no indictment was ever filed in relation to his alleged offending.[11] Mr Corless was subject to various charges relating to the manufacture of methamphetamine. On 2 November 2011 the Commissioner applied for civil forfeiture orders under the CPRA. Mr Corless's trial was scheduled to commence on 28 May 2012. It has now taken place.Forfeiture order provisions[12] The CPRA creates a new framework for the forfeiture of the proceeds of crime. It replaced the Proceeds of Crime Act 1991. Under the 1991 Act, a criminal conviction was a precondition to forfeiture. Under the CPRA, criminal activity on which a civil forfeiture order is based does not need to have resulted in a conviction. No prior conviction or charge is necessary.6[13] Section 3 sets out the purposes of the CPRA. One of these is to reduce the ability of criminals and their associates to continue or expand their criminal enterprise.7[14] Section 43 provides that the Commissioner may apply for a civil forfeiture order. Section 45 then provides that applications for such orders are to be made on notice to those persons known to have an interest in the relevant property. Section 46 sets out who is entitled to be heard on an application. A forfeiture order may be an assets forfeiture order or a profit forfeiture order.[15] For assets forfeiture orders, s 50 states that the High Court must make suchan order if it is satisfied on the balance of probabilities that "that specific property is tainted". "Tainted property" is defined in s 5(1):tainted property—(a) means any property that has, wholly or in part, been—(i) acquired as a result of significant criminal activity; or6 See the comments of this Court in Elliot v R [2011] NZCA 386, [2011] 3 NZLR 811 at [34].7 Criminal Proceeds (Recovery) Act 2009, s 3(2)(c).(ii) directly or indirectly derived from significant criminal activity; and(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.[16] The making of a profit forfeiture order does not require the existence of tainted property. Section 55(1) requires the High Court to make a profit forfeiture order if it is satisfied on the balance of probabilities that:(a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and(b) the respondent has interests in property.[17] Section 7 provides that a person has "unlawfully benefited from significant criminal activity" if the person has "knowingly, directly or indirectly, derived abenefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity)".[18] The relationship between civil forfeiture applications and the criminal process is described in ss 15 and 16:15 No criminal proceedings required for civil forfeiture order or in registering foreign forfeiture orderThe significant criminal activity or significant foreign criminal activity on which a civil forfeiture order or registration of a foreign forfeiture order in New Zealand is based does not need to be, or to have been, the subject of any criminal proceedings in New Zealand or a foreign country.16 Quashing criminal proceedings does not impact on civil forfeiture(1) Subsection (2) applies if criminal proceedings are commenced or pending or have been withdrawn or determined in respect of any significant criminal activity that is the basis for—(a) an assets forfeiture order or a profit forfeiture order; or(b) an application for an order of that kind.(2) If this subsection applies, the order or application is not affected by the criminal proceedings, even if any conviction entered in those proceedings is or has been quashed or set aside.[19] Section 6 of the Act defines "significant criminal activity" as activity engagedin by a person that, if proceeded against as a criminal offence, would amount to offending punishable by a maximum term of imprisonment of five years or fromwhich property, proceeds or benefits of the value of $30,000 or more have directly or indirectly been acquired or derived.[20] Where the Commissioner intends to seek a forfeiture order, he may seek a restraining order in relation to property that he reasonably believes is tainted property.8 If a restraining order is made, the Official Assignee takes custody and control of the restrained property and the order prevents it being sold.9 The property in issue in both Wei and Corless was (and remains) subject to restraining orders.High Court decision — Wei[21] In Wei, Mr Zhang argued that his fair trial rights in the criminal proceedings would be compromised if the forfeiture application was heard before the resolution of the criminal proceedings. He sought a stay or adjournment.[22] In the High Court, Ellis J accepted that it was clear beyond doubt that a conviction was not a prerequisite to the making of a forfeiture order under the CPRA. However, she did not see the policy reasons behind enabling forfeiture without conviction to apply easily in the circumstances of an application for a forfeiture order in advance of a pending trial. She said she could not see that waiting for criminal charges to be determined before addressing the forfeiture applicationwould impede Parliament's legislative intention. She did, however, accept that therewas some cost to the Crown in requiring the Official Assignee to have custody and care of assets that had been made subject to restraint orders pending the determination of the criminal proceedings.[23] Ellis J then turned to the question of whether the hearing of the application inadvance of the trial would infringe Mr Zhang's rights under the Bill of Rights. Sheconsidered in particular s 25, which relevantly provides:25 Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:8 Criminal Proceeds (Recovery) Act 2009, s 18.9 Criminal Proceeds (Recovery) Act 2009, s 24.(a) the right to a fair and public hearing by an independent and impartial court:...(c) the right to be presumed innocent until proved guilty according to law:(d) the right not to be compelled to be a witness or to confess guilt:...[24] Ellis J noted that the Court considering the forfeiture application may berequired to hold that Mr Zhang has engaged in activity that is "significant criminal activity" as defined in the CPRA.10 She said that whether Mr Zhang has engaged in such activity would be the central issue in his upcoming criminal trial. In those circumstances his right to a fair trial and/or the presumption of innocence (s 25(a) and (c)) could be undermined. She said if Mr Zhang gave evidence in the forfeiture proceedings and the Crown then sought to introduce that evidence in his criminal trial under s 27 of the Evidence Act 2006, the context in which the evidence hadbeen given would almost certainly come to the jury's attention. She also saw this as potentially prejudicing Mr Zhang's fair trial rights, notwithstanding that a Judgewould direct the jury not to take that context into account.[25] In relation to s 25(d) (the right not to be compelled to be a witness or confess guilt), Ellis J observed that the key component of the right was compulsion, citing the decision of Miller J in D Holdings Ltd v Secretary for Internal Affairs.11 She said there was no compulsion to give evidence or confess guilt in the context of aforfeiture application hearing. She concluded that Mr Zhang's s 25(d) right was notprejudiced by the forfeiture order hearing proceeding before the criminal trial.[26] However, the Judge said it was at least theoretically possible that Mr Zhang would not give evidence in the forfeiture proceedings because of concerns about the admissibility of that evidence at the criminal trial. She saw this as potentiallyaffecting Mr Zhang's rights under s 27(3) of the Bill of Rights, which provides that every person has the right to defend civil proceedings brought by the Crown and to10 See [19] above.11 D Holdings Ltd v Secretary for Internal Affairs HC Wellington CIV-2005-485-967, 28 April2006.have those proceedings heard according to law in the same way as civil proceedings between individuals. She saw this provision as being potentially triggered because the Crown is, in substance, both the applicant in the forfeiture proceedings and the prosecuting authority in the criminal proceedings.[27] Ellis J observed that s 27(3) could not be interpreted as requiring the Commissioner to refrain from using his powers under the CPRA because he is similarly engaged in criminal proceedings in relation to the same conduct. However, she thought that the importance of ensuring a fair hearing in both proceedings would be a significant factor relevant to the scope and ongoing exercise of theCommissioner's decision to pursue the forfeiture application. She saw it as goingwithout saying that the decision must not be influenced by the possibility of obtaining a tactical advantage in the trial.[28] The Judge then turned her attention to s 16 of the CPRA. She declined toread the section as limiting or circumscribing the Court's inherent supervisoryjurisdiction to ensure that no abuse of process occurs. She said she would haveexpected the section to have been more explicit had it been Parliament's intention to restrict the Court's ability to control its process and to require that forfeiture orderapplications be dealt with in advance of criminal trials, even where fair trial rights are potentially affected.[29] The Judge then referred to, and set out, the guidelines given by Wootten J inMcMahon v Gould,12 which were adopted by Master Venning in Invensys Plc v Load Logic Ltd13 and by Allan J in Rudman v Way.14 The Judge then set out her reasoning, following at least in broad terms those guidelines. She prefaced her consideration of those issues by observing that the Commissioner should not be regarded as an ordinary plaintiff in ordinary civil proceedings. This distinguished the present case from many of the decided cases involving parallel criminal and civil proceedings, where the civil plaintiff and the prosecuting authority were not the same and there was therefore less direct overlap between the factual and legal issues between the proceedings.12 McMahon v Gould (1982) 1 ACLC 98 (NSWSC).13 Invensys Plc v Load Logic Ltd HC Christchurch CP 73/01, 26 March 2002 at [20].14 Rudman v Way [2008] 3 NZLR 404 (HC) at [23].[30] Ellis J then undertook a balancing exercise and concluded as follows:15(a) For the reasons I have given I do not consider that the "right to silence" is directly engaged.(b) There is a degree of "real" (rather than notional) danger of injusticein the criminal proceedings because determining the forfeiture application ahead of trial does put the presumption of innocence at risk. More particularly there is a possibility that any publicity arising from the forfeiture application might reach and influence jurors in the subsequent criminal trial. If it did, there can in my view be little doubt that the fact that the Court had already found that the accused had been engaged in significant criminal activity might influence their determination of the criminal charges.(c) Similarly ... Mr Zhang's fair trial rights would be prejudiced if theforfeiture application were to proceed now and he chose to give evidence.(d) The proximity of the criminal hearing (now three months away) does not militate against the grant of a stay.(e) I am prepared to accept that in light of the proximity of the trial, there would be a greater burden on Mr Zhang in preparing for both sets of proceedings concurrently (that is, if the forfeiture application is not stayed).(f) There has to my knowledge been no prior disclosure by Mr Zhang of his defence.(g) To my knowledge Mr Zhang has not engaged in conduct which would militate against a stay.(h) I accept that there would be some cost to the Crown in granting astay, because of the Official Assignee's ongoing requirements tomanage and care for the property. There is, however, no evidence before me about what that cost is and, of course, the proximity of the trial is a mitigating factor in that respect.[31] In addition to those factors, she noted two further factors about the efficiency of the forfeiture proceeding if it took place after the criminal trial. She said that, if a conviction were secured at trial then the issues in the forfeiture proceedings would be considerably confined. Equally, although an acquittal would not be determinative of a forfeiture application, it might well have a bearing on the outcome.[32] Ellis J concluded on balance that the forfeiture application should beadjourned pending the outcome of Mr Zhang's criminal trial.15 Wei v Commissioner of Police, above n 1, at [61].High Court decision — Corless[33] In the High Court Mr Corless argued that allowing the civil forfeiture application to be heard before the criminal trial would prejudice his fair trial rights, and would constrain his ability to participate in the forfeiture proceeding because participation could harm him in the criminal proceeding. An important factualdifference in Mr Corless's case is that he has already submitted an affidavit in theforfeiture proceedings outlining his defence.[34] Brewer J observed that the contest in the forfeiture proceeding was whether the property in issue was tainted by, or acquired as a result of, the same or similar criminal conduct with which Mr Corless was charged in the criminal proceedings. If the forfeiture proceeding went first, Mr Corless would face a difficult choice. If he did not actively defend the forfeiture application, he would forfeit his property. If he did actively defend the forfeiture application, he would place himself at risk in the criminal proceeding.[35] The Judge noted that Mr Corless had filed an exculpatory affidavit and could be compelled to face cross-examination on that in the forfeiture proceedings. He would be bound to answer questions in cross-examination, unless an answer was self-incriminating. His answers could be used as evidence at a later criminal trial.[36] Brewer J considered the High Court decisions in Commissioner of Police v Burgess and Wei v Commissioner of Police. He rejected the Commissioner'ssubmission that they were wrongly decided. He treated the application as an application for adjournment rather than a stay application. He saw the competing considerations as:(a) the Commissioner's right to pursue his civil claim;(b) Mr Corless's right to defend that claim; and(c) the need to ensure that Mr Corless's rights in relation to the criminalproceeding were given due effect.[37] He set out his essential reasoning as follows:[45] These are the factors I find relevant in considering the application:(a) The civil and criminal proceedings are legally independent of one another, although in practical terms they are interconnected;(b) There would be no breach of the NZBORA in respect of the criminal proceeding if the civil proceeding were to precede the criminal proceeding. However, there could bedisadvantage to him (Asher J's "side wind" [in the HighCourt decision in Commissioner of Police v Burgess]);(c) In any event, Mr Corless would be significantly constrained in his ability to assert his position in the civil proceeding if it preceded the criminal proceeding. Not a legal constraint, but a practical one arising from the predicament that I have addressed above;(d) The Commissioner is not an ordinary civil plaintiff. The State has launched interconnected proceedings (they are not"parallel" since they intersect in their issues) in the civil andcriminal jurisdictions. Through the former the State might gain advantage in the latter. That advantage would not otherwise be available to the State (indeed, would be denied the State by the rights accorded a defendant in criminal proceedings). The Commissioner is not a plaintiff asserting a personal or corporate right to damages or to reinstatement which should not be delayed because the defendant faces related criminal proceedings:(e) Although there is some added expense in maintaining the restrained assets, there is no pressing need for the civil proceeding to commence as scheduled rather than some months later. The proximity for the criminal proceedings (scheduled for three months after the civil proceeding) tends to favour the grant of an adjournment.[46] I accept that the Commissioner has a statutory pathway to proceed and that s 16 of the Act does not contemplate that the civil procedure must give way to the criminal procedure. But that is a neutral factor. Whether or not in cases such as this an adjournment is granted must depend upon a consideration of the facts of the particular case.[47] Section 27(3) of the NZBORA does have significance here. In the circumstances, the State, because it is the State, could stand to gain a benefit that would not otherwise arise, in that through its prosecution of Mr Corless in the criminal proceeding he is effectively inhibited from adequately defending the civil proceeding.(Footnotes omitted.)[38] Brewer J therefore granted the adjournment.Our analysis[39] For the Commissioner, Mr Johnstone accepted that the Court had a discretion to adjourn the hearing of a forfeiture order application. But he argued that the decisions in Wei and Corless were more than just the exercise of the discretion to adjourn a proceeding. He said that they effectively amounted to rulings that forfeiture applications in relation to cases where a criminal trial was pending could never be heard in advance of the criminal trial. Thus he saw the cases as raising a matter of significant principle calling for an authoritative determination by this Court.[40] In our view that approach overstates the significance of the High Court decisions and effectively turns case-specific rulings into something they were not. In our consideration of the appeals, we keep ourselves firmly grounded in the nature of the decision under appeal in each case, namely a decision by a Judge about the time at which an application should be heard. This is a discretionary decision tailored to the facts of each case. It requires the Judge to undertake a balancing exercise, assessing the interests of each party, to reach a conclusion as to where the interests of justice lie.16 It is not an area where an appellate court should be making hard and fast rules.[41] There is no general rule that civil proceedings must be adjourned if related criminal proceedings are pending.17 Equally, there is no rule that a civil plaintiff is entitled to a hearing before an impending criminal trial. In a case where the prosecuting agency is, in effect, the same party as the plaintiff in the civil proceeding, considerations of entitlement of a civil plaintiff to pursue his or her case without delay are obviously diluted substantially. In our view, the High Court16 O'Malley v Southern Lakes Helicopters Ltd HC Christchurch CP 513/89 4 December 1990.17 V v C [2001] EWCA Civ 1509; Jefferson Ltd v Bhetcha [1979] 1 WLR 898 (CA); D HoldingsLtd v Secretary of Internal Affairs, above n 11, Burrell Demolition Ltd v Wellington RegionalCouncil CA161/01, 18 March 2002 at [14]. See also Z v Dental Complaints AssessmentCommittee [2009] 1 NZLR 1 (SC) at [26], where McGrath J said for the plurality that there wasno rule preventing inquiry (in professional disciplinary proceedings) into some of the essentialfacts in issue in a criminal trial where they are relevant to an accusation of a different character.See also the Crimes Act 1961, s 405, which provides that no civil remedy for any act or omissionis suspended because the act or omission amounts to an offence.Judges in the decisions under review were right to see the present cases as fact- specific and as calling for a balancing exercise.[42] Mr Johnstone argued that deferring the hearing of a forfeiture application was inconsistent with the purpose of reducing the ability of criminals to continue or expand their criminal enterprise. That may be so if the criminals continued to have possession and control of the property concerned, but in the present proceedings restraining orders ensure that this is not the case.[43] Mr Johnstone argued that ss 15 and 16 of the CPRA make it clear that Parliament intended that, where the Commissioner seeks a civil forfeiture order prior to the determination of related criminal proceedings, the hearing of the application will precede the related criminal trial. In our view, that submission is unsustainable in the face of the clear wording of those provisions. Neither says anything about the order in which the civil and criminal proceedings should be heard.18[44] The reference in the heading to s 16 and in s 16(2) to the quashing of a conviction could even be construed as supporting the proposition that forfeiture orders can be expected to be made after a conviction, and to survive a later quashingof a conviction. Mr Johnstone argued that the use of the term "even if" in s 16(2)indicated that the quashing of a conviction was an example of the extreme and that this indicated that the general words of s 16(2) should not be limited by the later reference to the quashing of a conviction. We accept the validity of that argument,but that does not lead us to accept Mr Johnstone's argument that ss 15 and 16 requirethat forfeiture applications be heard before criminal trials. The sections are simply silent on the respective timing of the hearing of the civil and criminal proceedings.[45] However we record that we do not agree with Ellis J's view that the effect ofss 15 and 16 is limited to particular circumstances, namely:1918 Contrast the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, s 73(2).This Act was passed in the same year as the CPRA. The equivalent legislation to the CriminalProceeds (Recovery) Act in Victoria, the Confiscation Act 1997 (Vic), includes a provision to theeffect that the fact that criminal proceedings have been commenced is not a ground on which theCourt can stay a proceeding under the Act: s 133. See also Criminal Proceeds Confiscation Act2002 (Qld), s 93 and Criminal Assets Recovery Act 1990 (NSW), s 63.19 Wei v Commissioner of Police, above n 1, at [24].(a) where there has been a trial resulting in an acquittal;(b) where charges cannot be laid against an alleged mastermind of a criminal enterprise;(c) where the alleged offender has died or fled the jurisdiction.[46] With respect, we think that Ellis J goes too far in restricting the application of ss 15 and 16 to these three fact scenarios. The wording of the provision gives no hint of this. The explanatory note to the CPRA does not contain any indication that ss 15 and 16 was intended to be so restricted, and nor do the parliamentary debates.[47] However, ss 15 and 16 also do not contain any indication that they were intended to override well established rights to fair criminal trials, and there is nothing in the legislative history to suggest this. The focus of ss 15 and 16 is really to ensure that forfeiture applications under the Act do not need to rely on a criminal prosecution or conviction. Sections 15 and 16 should not act as an absolute bar onthe Court's power to grant a stay where there are related criminal proceedings underway or pending. Rather, the fact that the CPRA places weight on the independence of civil and criminal proceedings should be a relevant, but not determinative, factor in the balancing exercise that the Court undertakes when deciding whether the hearing of a forfeiture application should be deferred until after the criminal trial of the person against whom the order is sought.[48] Mr Johnstone drew support for his argument from the wording of the Explanatory Note to the Bill that became the CPRA, which described the civilforfeiture process as operating "completely independently" of any criminalproceedings. We do not accept that adjourning the hearing of a civil forfeiture application until after a criminal trial compromises that objective.[49] Mr Johnstone referred to the first of the guidelines given by Wootten J inMcMahon v Gould,20 to the effect that a plaintiff in a civil action is prima facie entitled to have that action tried in the ordinary course of the procedure and business20 See [29] above.of the Court.21 He said that the Commissioner was entitled to rely on this. He took issue with the view expressed by Brewer J in Corless, to the effect that the Commissioner was not an ordinary civil plaintiff. Mr Johnstone said the Commissioner should be treated as any other litigant would be. We disagree. In our view Brewer J was right that the Commissioner is in a different position from that of an ordinary civil plaintiff, because he is directly associated with the criminal proceedings as well as being the plaintiff in the civil forfeiture proceedings. As Brewer J said, the Commissioner is not a plaintiff asserting a personal or corporate right to damages or to reinstatement that should not be delayed because the defendant faces criminal proceedings.[50] Mr Johnstone argued that the High Court judgments had confused the tactical advantages that a defendant has in criminal proceedings (not being required to disclose a defence before trial) with rights under the Bill of Rights. He referred toGeneral Distributors Ltd v Hilliard, in which Heath J found that a summary judgment application against an alleged thief should not be stayed until after the trial of the alleged thief.22 Heath J accepted there would be tactical advantages to the alleged thief in deferring any evidence until the criminal trial, but this was not enough to rebut the presumption that the civil proceedings go first.[51] Mr Johnstone said that Ellis J had been wrong to find that the rights of the respondent in the civil forfeiture order proceedings could be undermined if the civil forfeiture order proceedings preceded the criminal trial. He supported her view that the right to silence (s 25(d) of the Bill of Rights) was not engaged. He said that theconcern that Ellis J had about Mr Zhang's rights under s 25(a) and (c) could be dealt with by making non-publication orders preventing any publicity about the forfeiture proceedings being published before the criminal trial and by directions to the jury if the pre-trial publicity restrictions did not prevent the jury becoming aware of the earlier civil proceedings. He pointed out that this course had been followed in an earlier High Court case in which the civil forfeiture proceedings were dealt with21 The authority given by Wootten J for that proposition is Rochfort v John Fairfax & Sons Ltd[1972] 1 NSWLR 16 (CA). See also General Distributors Ltd v Hilliard HC Auckland CIV-2008-404-1057, 16 July 2008 at [20]–[23] and Jefferson Ltd v Bhetcha, above n 17, at 904.22 General Distributors Ltd v Hilliard, above n 21, at [38].prior to the criminal trial.23 He said that there was no basis for concern that the presumption of innocence would be put at risk because the Crown would still have to prove the criminal charges beyond reasonable doubt at the criminal trial regardless of any earlier hearing of the civil forfeiture proceedings.[52] We accept that publicity restrictions may be effective in preventing details of the forfeiture proceedings becoming known to a jury in later criminal proceedings. But that does not provide an answer to the concern expressed by Brewer J in Corlessthat the respondent to a civil forfeiture application would have a dilemma in determining whether to give evidence resisting that application because, if he or she did, then that evidence would be able to be used at the trial and he or she would be effectively disclosing his or her defence prior to the criminal trial. Mr Johnstone said that this situation arose in cases of retrials and there was no suggestion that a fair trial was not then achievable. We agree that this is the case, and would provide an effective answer to the proposition that civil forfeiture proceedings can never precede a criminal trial. But that is not what was decided in any of the cases before us: rather, the Judges engaged in a balancing exercise aimed at determining where the interests of justice lay. In the case of a retrial, this factor cannot normally be avoided. In the present case, it can. We see no reason for concern that Ellis and Brewer JJ gave some weight to this factor.[53] It is not necessary for us to express a concluded view on whether the right to silence is engaged in the present circumstances. The outcome of the present appeals does not depend on a finding that it is.[54] The argument for adjourning the civil forfeiture proceedings in relation to Mr Corless is weaker than that in relation to Mr Zhang because Mr Corless has already effectively disclosed his defence by filing an affidavit in relation to the civilforfeiture proceedings. Mr Johnstone submitted that Mr Corless's concern appearedto be that he will be shown to be a liar in cross-examination at the hearing of the civil forfeiture application. He argued that the Court should not be attempting toprotect a person in that position. However, we see no error in Brewer J's view thatthe cross-examination may elicit further information that would assist the police23 Commissioner of Police v Duncan HC Tauranga CIV-2010-470-933, 11 October 2011.inquiry. That would be information that the police would otherwise have no access to.[55] Finally we note that the deferral of the hearing of the civil forfeiture applications until after the criminal trials has very little downside for the Commissioner in both of the present cases. Assuming that the Commissioner seeks no tactical advantage in the criminal proceedings by forcing disclosure of thedefendants' defences and a preliminary chance to examine them, the only downside to the Commissioner is the fact that the delay leaves the assets subject to the restraining order longer than would otherwise be the case. While there must be some costs of storage and the like, there was nothing before us to indicate that those costs were substantial. Given that in both cases the criminal trial was scheduled to take place not very long after the adjournment hearings, we assume that the costs would not be substantial. If there were any impediments to the Commissioner protecting his position by way of restraint orders, that would be a factor that would support theCommissioner's position that civil proceedings should not be delayed. But that isnot the case in either of the two cases before us.[56] We conclude that the High Court decisions in both Wei and Corless wereprincipled and careful exercises of the judicial discretion to ensure that the Court'sprocedures meet the interests of justice. In both cases the Judges did not take an absolute position but carefully balanced the competing interests of the Commissioner as the civil plaintiff and the defendants as civil defendants and accused persons. We are not persuaded that there is any proper basis for us to interfere with theirdecisions, although we see Mr Corless's appeal as more finely balanced than Mr Zhang's.Result[57] Both appeals are dismissed.Solicitors:Meredith Connell, Auckland for Appellant