THE COMMISSIONER, NEW ZEALAND v WOODLEY & ORS [2022] NZHC 1018

THE COMMISSIONER, NEW ZEALAND v WOODLEY & ORS [2022] NZHC 1018 [12 May 2022]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2022-454-30[2022] NZHC 1018UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under sections 22, 24, 25,33-35, and 80.BETWEEN THE COMMISSIONER, NEW ZEALANDPOLICEApplicantAND JACQUELINE MARIE WOODLEYFirst RespondentMICHAEL LEWIS WOODLEYSecond RespondentANZ BANKInterested PartyOn the papers:Counsel: G J C Carter for ApplicantJudgment: 12 May 2022JUDGMENT OF CHURCHMAN J[1] By without notice application dated 11 May 2022, the applicant seeksrestraining and other orders (prior to civil forfeiture orders) under ss 22, 24, 25, 33-35, 80, and 102 of the Criminal Proceeds (Recovery) Act 2009 (the Act).[2] Filed with the application was a memorandum of counsel and a detailedaffidavit from Detective Constable Chaston.[3] The applicant seeks restraining orders under s 24 and/or s 25 of the Act inrespect of a property owned by the first and second respondents (the Property). Theyhave applied on a without notice basis pursuant to s 22 of the Act.[4] The description of the Property is:All interests in the property at 21 Platform Road, Himatangi, Manawaturegistered in the name of the first and second respondents and described underrecord of title unique identifier WN13D/1361, legal description section 759Town of Carnarvon; other than the registered interest of ANZ BankNew Zealand Limited.[5] In addition to the restraining order, the applicant seeks further orders underss 33-35, 80 and 102 of the Act that:(a) members of the Police and of the Official Assignee's office may go ontoand into the Property to take custody and control of the Property(including keys);(b) the Property to which this order applies is not to be disposed of, or dealtwith, other than as is provided for in the restraining order;(c) the Property to which this order applies is to be in the OfficialAssignee's custody and control; and(d) the respondents must provide the Official Assignee or his agent withaccess to inspect, assess, and appraise the Property on an ongoing basisso as to ensure the integrity and value of the Property.[6] The grounds upon which the restraining order is sought is that there arereasonable grounds to believe that the respondents have unlawfully benefited fromsignificant criminal activity and that they have an interest in the Property.[7] It is contended that there are reasonable grounds to believe that the Property istainted Property.[8] In relation to the further orders sought, it is submitted that they are required toensure:(a) the value of the Property is preserved and not dissipated or adverselyeffected before civil forfeiture can be determined; and(b) members of the Police and Official Assignee's office can enter theProperty to locate and seize the Property to ensure the restraining orderscan be effectively enforced.[9] The "significant criminal activity" upon which the application is based is thecultivation of cannabis.[10] The affidavit of Detective Constable Chaston sets out in detail the groundsupon which it is asserted that the first and second respondents have been engaged inlarge scale of cultivation of cannabis at the Property.[11] The reason said to justify the without notice application is that there is a riskof the proposed restrained property being destroyed, disposed of, altered or concealedif notice were given to any or all of the persons who, to the applicant's knowledgehave an interest in the proposed restrained property.Analysis[12] The evidence in the affidavit of Detective Constable Chaston satisfies me thatthere are reasonable grounds to believe that the respondents have unlawfully benefitedfrom significant criminal activity, and that they have an interest in the Property. It alsoestablishes that there are reasonable grounds to believe that the Property is taintedproperty. The evidence also provides reasonable grounds to believe that the furtherorders sought are necessary in order to preserve the value of the Property and ensurethat it is not dissipated.[13] I am also satisfied that it is appropriate for the application to have been madeon a without notice basis in order to avoid the risk of the Property being disposed of.Outcome[14] The orders sought in the application are granted in the terms of the draft orderfiled with the application subject to the correction of the legal description of theProperty which should refer to Town of Carnarvon rather than "Carnovon".Churchman JSolicitors:BVA, The Practice, Palmerston North