COMMISSIONER OF POLICE v YAN & ANOR [2015] NZHC 2544

COMMISSIONER OF POLICE v YAN & ANOR [2015] NZHC 2544

Court has jurisdiction within the restraint proceedings to make an 'unless' direction that the Commissioner must file and serve a civil forfeiture application with supporting affidavits by a specified date or else the existing restraining orders will be discharged; on balance the Court should exercise that discretion here and ordered filing by 29 April 2016 with a detailed timetable culminating in allocation of a five month hearing after 26 April 2017.

Citation
[2015] NZHC 2544
Parties
Applicant/respondent: Commissioner of Police; First Respondent/applicant: William Yan; Second Respondent/applicant: Wei You
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 October 2015
Procedural Posture
Civil Proceedings Under the Criminal Proceeds (recovery) Act 2009 / Application for Directions Concerning Filing of Civil Forfeiture Application; on Notice Restraining Orders Scheduled for Hearing June 2016
Outcome
Application for directions granted in part: Court exercises jurisdiction to impose an 'unless' timetable in the restraining proceedings and ordered the Commissioner to file a forfeiture application by a deadline or the restraining orders will be discharged; timetable and hearing allocation set; costs awarded to...
Legal Topics
Restraining Orders (freezing), Jurisdiction to Compel Prosecutor to File, Abuse of Process, Unless Directions/timetable Orders, Statutory Interpretation of Ss 28, 33 35, 37, 39, 41, 47
Criminal Proceeds Recovery Civil Forfeiture Civil Procedure Judicial Case Management Restraining Orders (freezing) Jurisdiction to Compel Prosecutor to File Abuse of Process Unless Directions/timetable Orders +1 more

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Parties

Commissioner of Police

Applicant/respondent

William Yan

First Respondent/applicant

Wei You

Second Respondent/applicant

Procedural Posture

Civil Proceedings Under the Criminal Proceeds (recovery) Act 2009 / Application for Directions Concerning Filing of Civil Forfeiture Application; on Notice Restraining Orders Scheduled for Hearing June 2016

Legal Issues

  1. 1 Whether Court has jurisdiction to require Commissioner to file a civil forfeiture application within a time frame
  2. 2 Whether Court should exercise such jurisdiction in light of ongoing police investigation and public interest
  3. 3 Appropriate terms of any order requiring filing (an 'unless' direction)

Ratio Decidendi

Court has jurisdiction within the restraint proceedings to make an 'unless' direction that the Commissioner must file and serve a civil forfeiture application with supporting affidavits by a specified date or else the existing restraining orders will be discharged; on balance the Court should exercise that discretion here and ordered filing by 29 April 2016 with a detailed timetable culminating in allocation of a five month hearing after 26 April 2017.

Court Disposition

Application for directions granted in part: Court exercises jurisdiction to impose an 'unless' timetable in the restraining proceedings and ordered the Commissioner to file a forfeiture application by a deadline or the restraining orders will be discharged; timetable and hearing allocation set; costs awarded to...

Orders

  • Unless the Commissioner files and serves an application for civil forfeiture orders, together with affidavits in support of the application, no later than 29 April 2016 the existing restraining orders will be discharged and set aside and the existing scheduled fixture vacated.
  • If the Commissioner files the application for forfeiture then any affidavits in opposition are to be filed and served by 30 September 2016.