COMMISSIONER OF POLICE v KRISHNAN [2023] NZHC 1207

COMMISSIONER OF POLICE v KRISHNAN [2023] NZHC 1207 [23 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000269[2023] NZHC 1207BETWEEN COMMISSIONER OF POLICEApplicantAND YUVARAJ KRISHNANRespondentKRISHNAN KUPPENInterested PartyHearing: On the papersCounsel: M Harborow and E Watt for the ApplicantS Cullen for the Respondent and Interested PartyJudgment: 23 May 2023REDACTED JUDGMENT OF GORDON JThis judgment was delivered by meon 23 May 2023 at 2 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Meredith Connell, AucklandS Cullen, Barrister, Auckland[1] In this proceeding the Commissioner of Police (Commissioner) seeksforfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) inrelation to a property which is currently restrained under the Act.[2] The Commissioner, the respondent Yuvaraj Krishnan, and the interested party,Krishnan Kuppen, now seek the Court's approval under s 95 of the Act, of anagreement reached between them.Background[3] The background to the proceeding is conveniently summarised in the jointmemorandum of counsel for the three parties dated 17 May 2023. This section of myjudgment draws from that summary.[4] The proceeding commenced following a Police investigation into Mr Krishnanfor forgery, use of forged documents, altering and using documents with intent todeceive, dishonestly using documents and perjury.[5] The events giving rise to those charges were that Mr Krishnan had producedvarious forged documents in support of his applications for jobs in the medicalprofession. He successfully obtained two jobs. One role was as a COVID-19 contacttracer and one was as a doctor, namely as a Clinical Research Fellow. Mr Krishnansaw patients and prescribed medications when he was not qualified to do so.[6] Mr Krishnan derived unlawful benefits by way of wages received from theAuckland District Health Board and Counties Manukau District Health Board as aresult of using forged documents when applying for the roles referred to above. Thosewages total approximately $135,183.[7] The Commissioner made an application on 10 February 2023 without noticefor restraining orders in respect of a property at [redacted], registered to Mr Krishnanand Mr Krishnan's father, Mr Kuppen (the Apartment). That application was grantedon 15 February 2023. An on notice application was made on 17 February 2023 andwas granted, without opposition, on 28 February 2023.Proposed settlement[8] The proposed settlement is on the following terms:(a) assets forfeiture orders under s 50 of the Act be made by consent overa sum of $135,183.59 (the Settlement Sum), representing the amountof the unlawful benefits, in full;(b) the Settlement Sum is to be paid by way of a scheme of payments, madeup of four payments over four months from the date of approval of thesettlement by the Court;(c) the restraining order over the Apartment will be varied to permit furtherborrowing against it for the exclusive purpose of enabling Mr Krishnanto raise the Settlement Sum;(d) upon the Official Assignee providing written confirmation that theSettlement Sum has been paid in full, the restraining order over theApartment is to be lifted and is to be removed from the record of titleof the Apartment (in the event the Settlement Sum is not paid withintime, the Official Assignee will sell the Apartment to obtain it);(e) Mr Krishnan is to abandon all claims he may have, under the Act orotherwise, to any of the property to be forfeited or to any of the otherrestrained property;(f) the settlement is in full and final settlement of the proceedings broughtby the Commissioner against Mr Krishnan under the Act; and(g) costs will lie where they fall.Court approval – statutory provision[9] Section 95 of the Act governs settlements and provides:95 High Court must approve settlement between Commissioner andother party(1) The Commissioner may enter into a settlement with any person as tothe property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approvesit.(3) The High Court must approve the settlement if it is satisfied that it isconsistent with—(a) the purposes of this Act; and(b) the overall interests of justice.Discussion[10] I am satisfied that the proposed settlement recognises the primary purpose ofthe Act, which is to provide for forfeiture of property derived directly or indirectlyfrom significant criminal activity, or property representing the value of a person'sunlawfully derived income.1 I am also satisfied that the settlement is consistent withthe overall interests of justice. The following reasons (which are acknowledged bycounsel) support my decision on the two criteria in s 95(3):(a) the Commissioner considers he has a strong case to demonstrate thatMr Krishnan has unlawfully benefited from his criminal activity,particularly as Mr Krishnan pleaded guilty to, and has now beensentenced for, the criminal charges in the parallel criminal case;(b) the settlement ensures Mr Krishnan's unlawful benefit is forfeited, infull;(c) for his part, Mr Krishnan acknowledges he has derived unlawfulbenefits from his criminal activity, in the form of wages paid to himfollowing his fraudulent applications for the roles referred to above. He1 Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (b).accepts he has been advised about the legal impact of the Act,particularly with regard to the presumption in favour of theCommissioner's stated unlawful benefit quantum;(d) the settlement appropriately recognises the innocent interests ofMr Kuppen as Mr Krishnan is first given the opportunity to raise theSettlement Sum before any sale of the Apartment;(e) an agreed settlement allows the parties to have certainty and control asto the outcome;(f) there will be a saving of time and cost if the matter can be resolved byconsent without the need for further hearings.Result[11] Given that I am satisfied of the two matters in s 95(3) of the Act, I must approvethe settlement. I make the following orders.Assets forfeiture orders under s 50(1) of the Act[12] The sum of $135,183.59 (Settlement Sum) vests in the Crown absolutely andis in the Official Assignee's custody and control.Additional orders necessary and convenient for giving effect to the assets forfeitureorder made in respect of the Settlement Sum under s 59 of the Act[13] (a) the Settlement Sum must be paid to the Official Assignee by way of ascheme of payments, made up of four equal payments over four monthsfrom the date of these orders, and the last payment must be made before5 pm on the date that is four months from the date of these orders;(b) the restraining order over [redacted] (the Apartment) is varied to permitborrowing against it for the exclusive purpose of enabling Mr Krishnanto raise the Settlement Sum;(c) upon the Official Assignee providing written confirmation to the partiesthat the Settlement Sum has been paid in full, the restraining order overthe Apartment is lifted and the Official Assignee must then arrange forthe restraining order to be removed from the record of title of theApartment;(d) in the event the Settlement Sum is not paid in full before 5 pm on thedate that is four months from the date of these orders, the OfficialAssignee must, as soon as is reasonably practicable, sell the Apartmentat its fair market value and deal with the proceeds of sale in thefollowing way:(i) first, deduct the Official Assignee's actual costs in effecting thesale (including, if applicable, any decontamination costs);(ii) second, repay any borrowings secured against the property;(iii) third, forfeit up to $135,183.59 to ensure the Settlement Sum isforfeited pursuant to the assets forfeiture order in paragraph [12]above;(iv) finally, return the balance to Mr Krishnan and Mr Kuppen;(e) in the event the Official Assignee sells the Apartment pursuant toparagraph [13](d) above, the restraining order made by Woolford J on28 February 2023 is extended for one year from 28 February 2024 soas to allow the Official Assignee to complete the sale.Costs[14] Costs lie where they fall in relation to all matters between the Commissioner,Mr Krishnan and Mr Kuppen.[15] In addition I record the following agreed terms of settlement:(a) Mr Krishnan abandons all claims he may have, under the Act orotherwise, to any of the property to be forfeited or any of the otherrestrained property; and(b) the settlement is in full and final settlement of the proceedings broughtby the Commissioner against Mr Krishnan under the Act.[16] For the sake of completeness I confirm that once the orders are sealed theproceeding will be at an end._____________________________Gordon J