THE COMMISSIONER, THE NZ POLICE v HARRISON [2019] NZHC 1199

THE COMMISSIONER, THE NZ POLICE v HARRISON [2019] NZHC 1199 [29 May 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2016-485-543[2019] NZHC 1199BETWEEN THE COMMISSIONER, THENEW ZEALAND POLICEApplicantAND JOANNE HARRISONFirst RespondentAND PATRICK FREDERICK SHARPSecond RespondentHearing: 29 May 2019Counsel: A W M Britten for ApplicantJudgment: 29 May 2019JUDGMENT OF ELLIS J[1] The background to this matter is set out in my judgment Commissioner ofPolice v Harrison.1 In that judgment I essentially found that the KiwiSaver Act 2006(the KSA) prevailed over the Criminal Proceeds (Recovery) Act 2009 (the 2009 Act),with the result that the Court could not make civil forfeiture orders under the latter Actin relation to Ms Harrison's KiwiSaver funds which, at that point, remained investedwith her KiwiSaver scheme provider.1 Commissioner of Police v Harrison [2017] NZHC 3140.[2] Since the date of that judgment the following has occurred:(a) on 21 January 2019 Ms Harrison was deported from New Zealand tothe United Kingdom, upon her release from jail;(b) final assets and profit forfeiture orders were made by Clark J on18 April 2019 (the orders were sealed on 8 May 2019) in which thevalue of the unlawful benefit obtained by Ms Harrison as a result of heroffending (and the maximum recoverable amount under the 2009 Act)was determined to be $784,172.16, less the value of the property thatwas the subject of the assets forfeiture order;(c) after realisation of those assets there remains a considerable portion ofthe maximum recoverable amount which remains unpaid. That amountremains recoverable by the Official Assignee as a debt due to the Crownby virtue of s 55(4) of the 2009 Act;(d) on 16 May 2019 Ms Harrison applied to her KiwiSaver fund manager,Kiwi Wealth Limited for early access to her KiwiSaver funds on thegrounds of significant financial hardship. Public Trust (the sectorsupervisor) subsequently authorised a partial withdrawal of $23,000.2That amount is now being held in a holding account at Kiwi WealthLimited and is due to be transferred to Ms Harrison in theUnited Kingdom tomorrow night.[3] Upon becoming aware of the imminent transfer, the Commissioner appliedwithout notice under the 2009 Act for restraining orders over the $23,000. Thatapplication came before me as Duty Judge.[4] Upon first reading the application and the material in support I issued a minuteexpressing concern that the application might be an abuse of process, in light of my2017 judgment. Further submissions were then filed and there was an oral hearingbefore me this morning.2 As I understand it, Ms Harrison's KiwiSaver funds total more than $110,000.[5] As a result of those submissions and that hearing my provisional view of thematter now is that the $23,000 that has been released from Ms Harrison's account is(as the Commissioner says) no longer protected by the provisions of the KSA.3 Butwhether the funds can be the subject of restraint strictly so called seems conceptuallyproblematic, given that final orders under the 2009 Act have been made.4 That said,however, in light of the indisputable debt owed to the Crown by Ms Harrison it seemsto me that the funds could equally be made the subject of a (without notice) freezingorder under Part 32 of the High Court Rules. Such orders operate in a materiallysimilar way to restraining orders under the 2009 Act. I am satisfied that the groundsfor such an order would exist, at least at this without notice stage.[6] Given the present form of the application, however, I grant the without noticerestraining order sought. I would suggest that thought should be given to convertingthe proceeding to one brought under Part 32, but for now I leave that to theCommissioner and his counsel.[7] In the meantime, however, the 2009 Act requires an on notice application tobe made within seven days of the making of a without notice order and it is obviouslyimportant (and the Act requires) that the on notice application be expedited.Mr Britton advised that the Commissioner would take all available steps to ensure thatMs Harrison is served with the proceedings as soon as possible.[8] Obviously, there may be issues for Ms Harrison in obtaining legalrepresentation from a distance and without legal aid, in the event that she wishes tooppose the restraining order. But regardless of any formal opposition I would thinkthat one issue on which she may well wish to be heard relates to the possibleimposition of conditions as to the payment of reasonable living costs in terms of s 28of the 2009 Act.[9] But regardless of whether she is represented at the on notice hearing I considerthat this is a matter where the Court would benefit from the appointment of counsel to3 My view is provisional because I have not yet had the benefit of hearing from any contradictor.4 Mr Brittain advised that, in the event forfeiture of the funds was sought by the Commissioner, anamended application (ie an amendment of the original and now determined application) would befiled.assist. I continue to have residual concerns that restraint cuts across the purpose of theKSA and also about the interrelationship between the "significant hardship" in termsof the KSA which the Public Trust has (self-evidently) found to exist and the "unduehardship" exemptions under the 2009 Act. I make a direction that the Registry arrangethe appointment of counsel to assist accordingly.[10] I make an order that the affidavit of Brent Andrew Murray dated 23 May 2019not be accessed or searched without leave of the Court.__________________________Rebecca Ellis J