THE COMMISSIONER OF POLICE v DE LAUTOUR [2021] NZHC 2962

THE COMMISSIONER OF POLICE v DE LAUTOUR [2021] NZHC 2962 [3 November 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2019-454-68[2021] NZHC 2962UNDER The Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under ss 21, 24, 25, 33, 34 and 35BETWEEN THE COMMISSIONER OF POLICEApplicantAND MARTIN TREVOR DE LAUTOURRespondentAND LINLEY ROSE DE LAUTOURInterested PartyOn the PapersCounsel: G J C Carter for the ApplicantJudgment: 3 November 2021JUDGMENT OF GWYN J[1] The Commissioner of Police (Commissioner) seeks without notice restraining and further orders in respect of the following property:(a) all interests in the property at 31 and 33 Oak Crescent, Ashhurst, Palmerston North, registered in the name of the respondent (Martin De Lautour) and the first interested party (Linley De Lautour) and described under record of the title unique identifier WN38D/5104, legal description Lot 23 Deposited Plan 337343 (the Oak Crescent properties);(b) cash totalling $217,955.80 located and seized on 10 December 2018 from the Oak Crescent properties and held in the New Zealand Police Trust Account;(c) a Rolex Oyster Perpetual Cosmograph Daytona yellow gold coloured watch located and seized on 10 December 2018 from 33 Oak Crescent, Ashhurst, Palmerston North; and(d) a Rolex Oyster Perpetual Datejust gold and stainless steel coloured watch (silver set with diamonds), located and seized on 10 December 2018 from the respondent.(collectively, the property)Background[2] The property was previously the subject of restraining orders made on 3 October 2019 and subsequently extended, most recently by consent on 1 July 2021 for a further three months (the earlier orders).[3] The Commissioner sought a further extension of the earlier orders on 29 September 2021, a day before they were due to expire. Counsel advises that, at that stage, the Court sought the views of the respondent, by 5 October 2021, but no response was received.[4] The application for extension came before Edwards J, as Duty Judge, on 22 October 2021. Justice Edwards declined to extend the earlier orders on the basis that there is no jurisdiction under s 41 of the Criminal Proceeds (Recovery) Act 2009 (the Act) to extend an order once it has expired.The application[5] The Commissioner has now brought a fresh application for restraining orders. The application relates to the same property covered by the earlier orders, but counsel for the Commissioner explains in his memorandum in support of the application thatthere are some technical amendments to the form of the earlier orders, which update the description of the Oak Crescent properties to properly reflect the unique identifier, and delete or streamline some of the further orders that are not required in the form originally sought. Counsel confirms that the substance of the orders sought remains the same – the same property is sought for restraint, with a standard form of further orders allowing the Official Assignee to manage the property appropriately.[6] The application is supported by a memorandum of counsel for the Commissioner dated 29 October 2021, an affidavit of Usipua Faletolu dated 29 October 2021, and an earlier affidavit of Usipua Faletolu dated 25 September 2019, which was filed in support of the application for the earlier orders.[7] Mr Faletolu is a Specialist Investigator, holding a designation of Authorised Officer for Police. He is currently attached to the Police Central Asset Recovery Unit. In that role, he is authorised to swear evidence in support of the Commissioner's application.[8] Mr Faletolu's evidence is that the respondent, Mr De Lautour, has been sentenced and convicted for selling uncustomed tobacco and for possession of methamphetamine for supply. Mr De Lautour has accepted that the monies restrained (referred to at [1(b)] above) were proceeds from the sale of tobacco.[9] The Oak Crescent properties are currently jointly owned by Mr De Lautour and Linley De Lautour, the interested party, who is Mr De Lautour's sister.DiscussionWithout notice[10] The application is made without notice. When this application came before Cull J as Duty Judge, on 29 October 2021, she noted in a minute of that date that the respondent and interested party had previously been represented by counsel in respect of the earlier orders, raising the question whether it is appropriate now to grant a without notice application. Given the time constraints, Cull J directed that the matter come before a Judge for a more considered assessment.[11] The Commissioner says that it is necessary to proceed on a without notice basis because of the risk that Mr De Lautour may attempt to dispose of or conceal the property if notice of the application were given.[12] That submission is supported by Mr Faletolu's evidence of Mr De Lautour's concealment of vehicles in the past, where he has had effective control of the vehicles, but ownership has been disguised in third party names. In addition, Mr Faletolu notes that Mr De Lautour had previously concealed a large quantity of cash at Ms De Lautour's property.[13] The Commissioner is concerned that without restraint over the Oak Crescent properties, Mr De Lautour could either sell or refinance them, thereby reducing the equity available to satisfy any profit forfeiture order. He advises that the maximum recoverable amount is $709,870.[14] In summary, the evidence for the Commissioner is that Mr De Lautour's previous actions demonstrate his ability to dispose of and/or conceal his assets. For that reason, without notice restraint of the property is required to prevent any attempt by Mr De Lautour to deal with or disguise ownership of it. It will also enable the Commissioner to preserve the current and true value of the property while forfeiture orders are sought. The Commissioner advises that the property will shortly be sought for forfeiture (with an application anticipated before Christmas 2021).[15] Under s 22 of the Act, the Court may grant an application for a restraining order made without notice if satisfied that there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given to any person who has an interest in the proposed restrained property.[16] I am satisfied, on the basis of the evidence before the Court, and counsel's assurance that an on-notice application will follow within seven days of the date of counsel's memorandum, that it is appropriate to consider the application on a without notice basis.Restraining and other orders[17] Pursuant to s 24 of the Act, the Court may make a restraining order in relation to specific property if satisfied it has reasonable grounds to believe that the property sought to be restrained is tainted property.[18] I am satisfied from the evidence filed in support of the application that there are reasonable grounds to believe that the property sought to be restrained has, wholly, or in part, been acquired as a result of, or directly or indirectly derived from, significant criminal activity and is therefore tainted property.Result[19] I grant the orders in the terms sought, for a period of three months.Gwyn JSolicitors:BVA The Practice, Palmerston North