NICHOLAS V COMMISSIONER OF POLICE [2017] NZCA 473

NICHOLAS V COMMISSIONER OF POLICE [2017] NZCA 473 [19 October 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA470/2016[2017] NZCA 473BETWEEN VALENTINE BARCLAY NICHOLASAppellantAND COMMISSIONER OF POLICERespondentHearing: 31 August 2017Court: Harrison, Duffy and Williams JJCounsel: B L Sellars for AppellantR W Jenson for RespondentJudgment: 19 October 2017 at 2.30 pmJUDGMENT OF THE COURTA The application to adduce new evidence is granted in part.B The appeal is allowed and the High Court judgment set aside in part.C The matter is remitted to the High Court to hear evidence with respect toundue hardship caused by the loss of the Whakamārama land and633 Maketū Road.D There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Background[1] The Commissioner of Police obtained asset and profit forfeiture orders pursuant to the Criminal Proceeds (Recovery) Act 2009 (the Act) against certain property (real and personal) of the appellant, Mr Nicholas, and his partner Sheila Payne, who was the second respondent at first instance.1 Although there were no relevant convictions, the Commissioner alleged,2 and the High Court accepted,3 that Mr Nicholas had been engaged in drug supply and money laundering by which he obtained unlawful benefits to the value of at least $1.17 million. On appeal, there is no challenge to that threshold finding. The High Court then ordered the forfeiture ofMr Nicholas' interests in five properties together with cash and assorted motorvehicles up to that value.4[2] This appeal challenges the forfeiture orders in relation only to four of the five forfeited properties. They are three residential properties at 631, 633 and 634Maketū Road, Maketū and a half share in an eight-hectare property at Whakamāramain Tauranga.[3] Mr Nicholas contends that:(a) these properties are of such cultural, spiritual and whānau significancethat forfeiture would create undue hardship in accordance with s 56 of the Act;(b) his counsel in the High Court failed to advise him that such impacts were relevant to the question of forfeiture; and(c) it is necessary for the application to be reheard so that these matters may now be considered by the High Court.[4] Mr Nicholas then amended his grounds of appeal so as to bring them in line with the foregoing summary and made an application to adduce new evidence on1 Commissioner of Police v Nicholas [2016] NZHC 1913 [HC judgment].2 At [2]–[5].3 At [121]–[122] and [136].4 At [150]–[157].appeal. This was accompanied by an affidavit of Mr Nicholas setting out the background to these matters of special connection.[5] In rejoinder, the Commissioner argues:(a) there is no jurisdiction to consider an appeal on the proposed grounds as there was no application for relief against forfeiture in the High Court from which an appeal could be mounted and the forfeiture order has since been sealed;(b) even if there is jurisdiction, the new evidence sought to be adduced in support of the appeal is not fresh, credible or cogent; and(c) in any event, the application lacks substantive merit.The new evidence in summaryThe Maketū land[6] The Nicholas whānau own five residential titles in Maketū. Four of these aresituated on an outcrop bounded by short-channelled watercourses that describe its north-western and southern edges and by Maketū Road and Maketū estuary on the east and west sides. This outcrop contains numbers 631 to 641 Maketū Road.Together they would comprise perhaps 5,000 square metres excluding esplanade reserves. Mr Nicholas owns 631, which contains a large gym and workshop. The Commissioner says this complex is in fact a gang headquarters. Mr Nicholas (who is a senior figure in the Maketū Mongrel Mob) denies this, claiming that the gym is a community facility that he provides and the workshop is his. He also owns 633, where he resides with his partner and (he says) his son William and threemokopuna. Mr Nicholas' brother, William Jnr, owns 635 next door. Number637 does not seem to be Nicholas land. His sister Tania lives at 639 with her three children. Number 641 at the other end of the outcrop is where Mr Nicholas' father built the original whānau homestead. He says his sister Tangihaere stays there whenshe visits. It was not made clear who is the legal owner of that title.[7] Across Maketū Road from 631 and 633 is number 634. Mr Nicholas' partnerpurchased that land in 1990 and it was transferred to Mr Nicholas in 1998.[8] The acquisition history in relation to the estuary-side titles is a little morecomplex. Mr Nicholas' father, William Edward Nicholas (William Snr), and his first wife, Mereana, acquired the estuary side land sometime prior to 1955. This was the year in which Mereana died. Upon her death, Mereana owned a two-thirds share of the land and William Snr one-third. The land was not Māori land, but was inEuropean title (the term then used). Mereana had children of her own, but she and William Snr also adopted a son, John Tonga (or Don) Nicholas. They also had a biological son, William Tahere Nicholas, who had issue but predeceased his father. William Snr then married his second wife, Josephine, who had Mr Nicholas, his brother William Jnr, and two sisters, Tangihaere and Tania.[9] Following William Snr's death in 1979, the two families (from Mereana andJosephine) executed a deed of family arrangement whereby each of William Jnr, Mr Nicholas, Don, Tania and Tangihaere were given sections in the estuary land. Mr Nicholas was to receive Lot 4 which does not appear to be part of this litigation. Lot 6 (631) and Lot 5 (633) were allocated to Don and William Jnr respectively. William Jnr acquired 631 from Don in 1989. Mr Nicholas then acquired both 631 and 633 from William Jnr in 1992.[10] Mr Nicholas says that he and his whānau are ancestrally connected to the Maketū land through their Te Arawa whakapapa. These particular connections arenot further explained and no details are provided of relevant hapū associations of the Nicholas whānau to the land or the area. Instead Mr Nicholas' real focus is on his whānau's more recent connection to the land. He says that he and his whānau wereraised on the estuary-side land and he, his siblings, and their children and grandchildren have always treated the whole land (including 634 which was acquiredlater) as papakāinga, that is as the whānau village or compound. He said that his whenua (placenta),5 and those of his children, are buried on the land subject to theforfeiture order (at 633) and that other placentas are "in the freezer" awaiting burialat the same place. He says his mother is buried on the land. The Commissioner's5 Whenua means both land and placenta.reply evidence establishes that the burial is on number 635 (William Jnr's land),which is not subject to the forfeiture order, but it is nonetheless part of the original estuary-side Nicholas land. As the Commissioner also points out, Josephine died after the forfeiture orders were made in the High Court.[11] Mr Nicholas says the land is close to the local marae and kohanga reo wherehe, his partner and his whānau are actively engaged.[12] Thus, it may be concluded that the overall Maketū land of which the threeforfeited properties form part has been in the ownership of William Snr and his children for more than 70 years.The Whakamārama land[13] The land at Whakamārama is differently held. It has a recent Māori landappellation (Oteora 2A1 block). It was transferred to William Snr in 1962 by thethen three shareholders in the block. It was still Māori land at that stage.[14] In 1968, it was subject to a status declaration of the Māori Land Court changing it from Māori land to European land (later to become known as generalland). Such status declarations were routinely made by the Registrar of the MāoriLand Court pursuant to s 6 of the Māori Affairs Amendment Act 1967. Where the provisions were satisfied, a status change was mandatory. No application was required for such status change and the owners were unlikely to know of itbeforehand. Rather, the Amendment Act provided that any Māori land owned by not more than four owners could cease to be Māori land simply by administrative actionof the Registrar of the relevant Māori Land Court district. The Amendment Act is generally regarded as having triggered the major Māori land protests of the 1970sand the policy reversal that ultimately led to the enactment of Te Ture Whenua Maori Act 1993.6 Had the Whakamārama land not lost its Māori land status, it6 Waitangi Tribunal The Hauraki Report (Wai 686, 2006) at 878. For the particular impacts of the Amendment Act on Tauranga Moana see Waitangi Tribunal Tauranga Moana 1886–2006: Report on the Post-Raupatu Claim (Wai 215, 2010) at 345–346.would not have been alienable without first being offered to members of thePirirākau hapū.7[15] It is now owned jointly by Mr Nicholas and his brother William Jnr, who acquired it from their father's estate in 1993.[16] The evidence strongly suggests that the Whakamārama land is ancestral land originally belonging to Mr Nicholas' father's hapū. The fact that William Snr isburied at nearby Tawhitinui Marae — a marae of the Pirirākau hapū of NgātiRanginui (one of the three major iwi of Tauraunga Moana) — is sufficientconfirmation that William Snr was a member of that hapū.Issues[17] The appeal raises the following issues:(a) Is it too late for the judgment to raise undue hardship for the first time?(b) Are the proposed grounds of hardship relevant under the Act?(c) Is the evidence in support of hardship fresh, credible and cogent?(d) Does the evidence disclose a sufficiently meritorious case for undue hardship relief to warrant reference back to the High Court for rehearing?[18] We turn to briefly summarise the relevant provisions of the Act before addressing these issues.The Criminal Proceeds (Recovery) Act 2009[19] The Act establishes a civil forfeiture regime for the confiscation of property that has been derived from significant criminal activity or that represents the value of7 The members of Pirirākau hapū are the "preferred class of alienees" in terms of s 4 of Te Ture Whenua Māori Act 1993. They are given right of first refusal by pt 7 of that Act.unlawful income from such activity.8 Conviction for relevant offending is not required.9 Indeed, even if a conviction for relevant "significant criminal activity" is set aside, a related civil forfeiture order will be unaffected.10[20] Property is broadly defined. It means "real or personal property of any kind",and includes an interest in such property.11 "Interest" in relation to property is thenfurther defined as either "a legal or equitable estate or interest in the property" or"a right, power or privilege in connection with the property".12[21] Civil forfeiture orders are dealt with in sub-pt 3 of pt 2. They may take one of two forms: either an assets forfeiture order; or a profit forfeiture order. Broadly speaking, assets forfeiture orders relate to property acquired or derived through"significant criminal activity" as that core phrase in the Act is defined.13 A profit forfeiture order requires the Court to assess the level of unlawful benefit (if any) derived from significant criminal activity and then to determine whether the respondent has forfeitable interests in the property targeted for forfeiture.14No connection between the criminal activity and the property is required for profit forfeiture orders.[22] The phrase "unlawfully benefited from significant criminal activity" isdefined in s 7 of the Act:7 Meaning of unlawfully benefited from significant criminal activityIn this Act, unless the context otherwise requires, a person hasunlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).8 Criminal Proceeds (Recovery) Act 2009, s 10. The Judge's finding that Mr Nicholas wasengaged in "significant criminal activity" in accordance with the definition of that phrase in s 6 is not challenged on appeal.9 Section 15.10 Section 16.11 Section 5(1), definition of "property".12 Section 5(1), definition of "interest".13 Sections 6(1) and 50.14 Section 55.[23] Plainly, the underlying purpose of this aspect of the civil forfeiture regime is to expose those who have obtained benefit from significant criminal activity to the loss of their assets (however obtained) up to the assessed value of that benefit.[24] The Act then contains an important reverse onus. It provides that if the Court is satisfied that the respondent has benefited from significant criminal activity, the starting point will be the value of the unlawful benefit calculated by the Commissioner and set out in the forfeiture application.15 The onus is then on therespondent to prove that the Commissioner's figure is wrong.16 The relevant period of criminal activity from which it is alleged unlawful benefit has been obtained is defined by the Act: it is always seven years prior to the issue of a restraining order or of the profit forfeiture order, whichever comes first.17[25] There are then two forms of relief against civil forfeiture orders provided for in sub-pt 3. The first is in s 56. It relates to claims of undue hardship on the respondent against whom the application is made. It provides as follows:56 Exclusion of respondent's property from profit forfeiture orderbecause of undue hardship(1) The High Court may, on an application made by the respondent before a profit forfeiture order is made, exclude certain property from being able to be realised under section 55(2)(c) if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the respondent if the property were realised.(2) The circumstances the Court may have regard to under subsection (1) include, without limitation,—(a) the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the profit forfeiture order; and(b) the nature and extent of the respondent's interest in theproperty; and(c) the circumstances of the significant criminal activity to which the profit forfeiture order relates.15 Sections 52(c) and 53(1).16 Section 53(2).17 Section 5(1), definition of "relevant period of criminal activity".(3) After a profit forfeiture order is made, nothing in this section prohibits a respondent from realising the property that was excluded from being able to be realised under section 55(2)(c) if—(a) after realising other property under that section there is still a debt owed to the Crown under section 55(4); and(b) the respondent agrees to realise the excluded property in order to pay all or part of that debt.[26] The second relief procedure is in ss 61 and 62. These sections make specific provision for third parties to seek relief either before a civil forfeiture order is made (s 61) or after such order in certain circumstances (s 62). Because it contemplates the possibility of post-forfeiture order relief, s 62 is relevant here. It provides as follows:62 Person (other than respondent) may apply for relief for limited period after civil forfeiture order made(1) Subsection (2) applies at any time after a civil forfeiture order is made and before—(a) the date that is 6 months from the date on which the civil forfeiture order was made; or(b) the date that is the expiry of any further time allowed by the High Court.(2) A person (other than the respondent) who claims an interest in the property to which the civil forfeiture order relates may apply for an order for relief.(3) However, if the applicant who seeks relief appeared at the hearing of the application or amended application for the civil forfeiture order or was served with that application, the Court may not grant relief in the absence of special reasons.(4) Special reasons under subsection (3) include, without limitation, that the Court is satisfied—(a) that the applicant had a good reason for failing to attend the hearing of the application for the civil forfeiture order; or(b) that evidence proposed to be adduced by the applicant in connection with the application under subsection (2) was not reasonably available to the applicant at the time of the hearing of the application for the civil forfeiture order.[27] Relevant considerations for the Court in hearing such a third-party application are similar to those in s 56 for respondents. They are set out in s 67 as follows:67 Making order for relief from civil forfeiture order on grounds of undue hardship(1) On an application for an order for relief from a civil forfeiture order under section 61 or 62, the High Court may grant the application if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the applicant if relief is not granted.(2) The circumstances the Court may have regard to under subsection (1) include, without limitation,—(a) the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the civil forfeiture order; and(b) the nature and extent of any person's interest in the property;and(c) the degree, if any, to which the person had knowledge of the significant criminal activity to which the property relates; and(d) the circumstances of the significant criminal activity to which the property or order relates.Too late?[28] In the High Court Mr Nicholas did not focus on either the Maketū or Whakamārama land now the subject of this appeal. Rather his opposition in thatCourt focused on three matters none of which are raised in this appeal. They were:(a) whether deposits of $412,007 into his accounts were proceeds of criminal activity or legitimate casino winnings;18(b) whether the Commissioner's forensic accounting evidence estimatingoverall benefit at $1.17 million was sound;19 and18 HC judgment, above n 1, at [75]–[102].19 At [123]–[136].(c) whether a fifth property — the 123-hectare Caravel Forestry Block— and the cash and certain vehicles belonged to Mr Nicholas or third parties.20[29] Mr Nicholas did not disclaim ownership of the Maketū and Whakamāramaproperties. And because the Court found for the Commissioner in each of the three issues above, it was necessary for the Court to mention those properties only in passing, their ultimate forfeiture being inevitable.21 Mr Nicholas offered no argument that forfeiture of them would cause undue hardship. Indeed in the High Court, Hinton J specifically noted, "[f]or completeness", that she had noapplication before her from the respondent for relief from undue hardship.22Submissions[30] Before this Court, the Commissioner argued that as Mr Nicholas had made no application under s 56, this Court could not entertain an appeal based on the failure of the High Court to grant it. The Commissioner argued that s 56(1) is strictin its requirement that all matters in relation to a respondent's interests must be dealtwith comprehensively at one time and prior to any forfeiture order. This provision is to be contrasted, the Commissioner argued, with s 62 in relation to third parties in which the matter may be revisited up to six months after a forfeiture order, or in such time as the Court may allow. In effect, the Commissioner argued, there is no aspectof Hinton J's judgment under appeal. Rather, the appeal relates to a case that wasnever argued and a judgment that was never given.[31] In response, Mr Nicholas argued that where the interests of justice require a case that has been mounted on a wrong footing to be set back onto a proper footing, the courts should not hesitate to take that step.Analysis[32] On its face, the Commissioner's point is well made. Section 56 is crafted soas to ensure that any relief application is heard at the same time as the20 At [36]–[69] and [139]–[146].21 At [8].22 At [138].Commissioner's forfeiture application by a respondent and before any final order ismade. By contrast, s 62 gives affected third parties a short window of opportunity to seek relief even after an order has been made, since some third parties may be unaware of the application until after it is granted. This contrast suggests, as the Commissioner argued, that Parliament intended relief applications by respondents to be made earlier or not at all.[33] Mr Nicholas' submission was that, through counsel error, an applicationwhich should have been made in time was not. Mr Nicholas deposed that he was not made aware by his then counsel, Mr Nabney, that an application could have been made to exclude property from forfeiture on the ground of undue hardship. Mr Nicholas deposed he did not become aware of such a possibility until new counsel advised him during the course of preparation for his appeal. He said he instructed counsel to amend the ground of appeal accordingly and to apply to adduce new evidence. Mr Nicholas waived privilege and trial counsel filed a brief affidavit. Mr Nabney deposed that, having reviewed his file, he could find "nothing to suggestthat I have ever advised Mr Nicholas that he was able to make an application forrelief". Further, Mr Nabney noted "I have no recollection of giving him that advice".[34] Thus, if we accept for present purposes Mr Nicholas' substantive argumenthas merit, it appears to be the case that, due to trial counsel error, Mr Nicholas wasdeprived of the opportunity to respond to the Commissioner's application forforfeiture with his own application under s 56 for relief from undue hardship. But is it, as the Commissioner submits, too late now to correct that error?[35] Mr Nicholas identified a small collection of cases in which this Court had set aside decisions at first instance on the ground that, in various contexts, one or other party was not afforded a proper opportunity to put its case before the Court, or to respond to the case from the other side.[36] In James v Wellington City this Court granted the appellant a rehearing where the trial Court had permitted the defendant to mount an unpleaded affirmative defence of volenti non fit injuria — the common-law doctrine barring claims where there has been voluntary assumption of risk — without proper notice to the plaintiffwho was taken by surprise.23 In Terry v Gardiner and Knoblock this Court set aside a default judgment because the District Court Judge wrongly refused to accept aletter as the defendant's effective statement of defence.24 Crucially, the letterdisclosed a potentially meritorious response to the plaintiff's claim.[37] Finally, in Lee v Damesh Holdings Ltd, a Full Court of this Court concluded the case before it had been too narrowly pleaded and argued in the High Court and should be sent back so the case could be repleaded and necessary findings of fact could be made.25[38] In each of these three cases, the applicable standards were the requirements of justice and the need to achieve the orderly and fair adjudication of the real dispute between the parties.26[39] We agree that these cases affirm the fundamental proposition that this Court has the power to set aside a civil forfeiture order, just like any other civil order, if it was irregularly obtained, made on a wrong principle, or inconsistent with the requirements of justice. A finding of inconsistency with the requirements of justice will not be lightly made. There will need to be a significant problem with the order as the three cases cited demonstrate. Technical flaws will not suffice. Rather, the error will need to go the essential justice of the case.[40] On the other hand, it will also be relevant that the civil forfeiture regime is confiscatory. The courts, like lawyers, will be particularly vigilant of the interests of ordinary citizens in the field of compulsory acquisition of private property.27 As this Court affirmed in SMW Consortium (Golden Bay) Ltd v Chief Executive of the Ministry of Fisheries, an interpretation of potentially expropriatory statutory language which provides protection for existing property rights is to be preferred if23 James v Wellington City [1972] NZLR 978 (CA).24 Terry v Gardiner and Knoblock [1991] 3 NZLR 553 (CA).25 Lee v Damesh Holdings Ltd CA77/03, 30 September 2003.26 See for example Terry v Gardiner and Knoblock, above n 24, at 556; and Lee v Damesh Holdings Ltd, above n 25, at [4].27 As to lawyers, see Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 (HL) at 118 per ViscountRadcliffe dissenting: "I do not mean that such usurpations are by any means the only cases in which prerogative acts may interfere with private rights or liberty and cause resulting damage;but lawyers are trained to a particular vigilance in the field of property".available.28 And, when considering the same interpretative presumption in a different context, the Supreme Court pointed to no less authority than Magna Carta as the "principal general measure of constitutional protection" for property rights in New Zealand.29[41] There is of course no doubt that the Act was specifically enacted for the purpose of depriving of their property those proved to the civil standard to bewrongdoers. But disproportionately harsh takings are not consistent with the Act'spurpose, nor are they in the wider interests of the community on behalf of which the Commissioner acts in these applications. A respondent must always have the benefit of a reasonable opportunity to adduce any evidence relevant to disproportionality because justice needs to be seen to be done before property is confiscated, even from wrongdoers. He or she should not be prevented from doing so because trial counselmade an error. This, in short, is an area where one's deserts ought to bedemonstrably seen to be just.[42] We conclude therefore that if, through no fault of Mr Nicholas (and this will always be a question of fact carefully scrutinised), he or she was rendered unable to mount a meritorious case for relief where one existed, the interests of justice may well require the matter to be remitted back for further argument and consideration.[43] The answer to question (a) is no.Are the new issues relevant?[44] Section 56 of the Act requires the Court to have regard to "all of the circumstances" of the case in making its undue hardship assessment. Withoutlimitation, these circumstances include: the use to which the property is or will be put; the nature of the respondent's interest; and the circumstances of the significantcriminal activity in which the respondent engaged.28 SMW Consortium (Golden Bay) Ltd v Chief Executive of the Ministry of Fisheries [2013] NZCA 95 at [31].29 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149 at [45] citing Magna Carta 1297 (UK) 25 Edw1 c 29.[45] As noted at [20] of this judgment, "interest" is relatively narrowly defined tomean a legal or equitable estate or interest in the property or a right, power or privilege in connection with the property. That definition may not be wide enough tocover the cultural, emotional and whānau connections raised by Mr Nicholas in thisappeal. Nonetheless s 56(1) requires the Court to have regard to "all of the circumstances" of the particular case. Plainly cultural, emotional and whānauassociation with land will be a relevant circumstance. Further, evidence that the landis put to use as a papakāinga for the wider whānau will be relevant in terms of the factors in s 56(2)(a).[46] Whether those associations are such as to provide a proper basis for relief is a separate matter. We address that question below.[47] We answer yes to question (b).Fresh, credible and cogent?[48] The test for admission of evidence in civil matters before this Court is well settled.30 The conventional requirements are that the evidence must be fresh, credible and cogent.Fresh?[49] Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at trial. As Tipping J noted in Rae v International Insurance Brokers (Nelson Marlborough) Ltd, these requirements are:31 designed to balance the interests of the person seeking to adduce suchevidence on the one hand with the interests of the opposite parties on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial.30 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193 in relation to r 36 of the previous Court of Appeal Rules 1955; affirmed by the Supreme Court as applicable to r 45 of the current Court of Appeal (Civil) Rules 2005 in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].31 Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 30, at 192.[50] That said, evidence that is not fresh may yet be admitted if"the circumstances are exceptional and the grounds compelling".32[51] In this case, the evidence is plainly not fresh. It was available when the application was first heard and reasonably diligent counsel could have adduced it. Exceptional grounds and compelling circumstances are therefore required. The argument is Mr Nicholas was the victim of a fundamental error made by his then counsel, so it is necessary to return to that question.[52] Mr Nabney did not depose that he was unaware of the hardship relief provisions in the Act. As experienced criminal counsel, we readily infer that he was so aware. Beyond that we are given no detail. We are not told whether, on the onehand, counsel was aware of the land and whānau connections now the subject ofevidence and considered such grounds were unmeritorious, or whether, on the other, such an argument just did not occur to him. Given the unchallenged evidence of Mr Nicholas that the issue was never raised with him, and viewing the matter as a whole, it seems safe to conclude that the possibility never occurred to counsel and Mr Nicholas did not understand the law well enough to raise it himself.[53] Assuming, again, for the purposes of this question, that the proposed hardship grounds themselves have substantive merit, we are satisfied that this circumstance is compelling. As we have said, in the context of legislation that facilitates confiscation, it is important that defences reasonably available are put to the Court so that justice may be seen to be done. We would distinguish this case from one in which counsel, being aware of the relevant factual background, considered the possibility of seeking relief, but concluded on reasonable grounds that one could not responsibly be made. Here the uncontested evidence shows that a simple but significant mistake was made.Credible?[54] Turning then to the second requirement of credibility, we take the view that,in basic outline, the evidence is credible. It is clear that the estuary side Maketū land32 At 193.has in fact been in Nicholas whānau ownership for more than 70 years. There is no reason to disbelieve the proposition that the children of William Snr have alwaystreated it as a single papakāinga, albeit in separate titles each owned by one or otherof the siblings. We also accept as credible that the whānau carry out Māori burial tikanga on the Maketū land in relation to remains associated with birth and death. Mr Nicholas' connections to that land are plainly genuine and communal and, tosome extent, cultural. But we do not accept as credible the proposition that theMaketū land is ancestral land of the Nicholas whānau in the orthodox sense of thatphrase. The evidence before us lacks the depth and detail necessary to be persuasiveon that point. No whakapapa is given, no hapū names provided, and no associations explained to provide backup to that claim.[55] On the other hand, the status of the Whakamārama land as ancestral land of the Nicholas whānau is plainly credible. This is demonstrated by its Māori land history and William Snr's association with nearby Tawhitinui Marae.Cogent?[56] The evidence must then be assessed for its cogency. The essential question is whether it is likely to have an important influence on the result in the case, although that influence need not be decisive.33 Or to pose the question in the context of this case: is it likely in all the circumstances that the new evidence would have made Hinton J hesitate and think again before ordering forfeiture? That question requires us, briefly, to consider the meaning of undue hardship.[57] To state the obvious, the hardship complained of must be undue. That is, it must be more than ought properly to be due in giving effect to the relevant purposes of the Act. Those purposes include elimination of opportunities to profit from significant criminal activity and deterrence of people from choosing so to benefit in the future.34 In such a regime, as the cases consistently show, those who have profited from significant criminal activity will expect to lose their major assets33 Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 2) [2007] NZSC 1, [2007] 2 NZLR 124 at [19] applying Dragicevich v Martinovich [1969] NZLR 306 (CA) at 308 per North P and 311 per Turner J applying, in turn, the essential principles described by Denning LJ in Ladd v Marshall [1954] 3 All ER 745 (CA) at 748.34 Criminal Proceeds (Recovery) Act, s 3(2)(a) and (b).including land and home even where these have enormous economic and emotionalvalue for the owner. The level of disproportion required to be "undue" must begreater than that. As the authorities have consistently said in this Court and the High Court,35 the level of hardship must be so disproportionate as to require the objectives of recovery and deterrence to be subordinated to the particular needs of the wrongdoer (s 56) or other interested parties (ss 61 and 62).[58] In this case, the credible new evidence attempts to demonstrate that theimpact of the loss of the Maketū land will be grave and whānau-wide, and the connections severed by forfeiture will not just be economic and emotional, butcultural and spiritual too. In relation to the Whakamārama land, the credible newevidence suggests that the impact will be at hapū level — the loss of Mr Nicholas'half interest in this land will result in a loss not just to him or even just to hiswhānau, but also to the wider hapū estate.[59] We consider that the evidence with respect to the Whakamārama land iscogent. There is a wider community that has a connection to and therefore a broaderinterest in this land. It will, after all, have been owned by members of the Pirirākau hapū for many hundreds of years prior to Mr Nicholas taking his half interest in 1993. There are, therefore, wider implications and impacts than those on Mr Nicholas himself. We consider the High Court Judge could well have taken a different view of the result if those impacts were articulated before her Honour in evidence and properly argued.[60] The Maketū land is less clear-cut. As we have said, we accept that the threeforfeited titles form part of what is now viewed as an overall whānau estate — apapakāinga — and we accept therefore that their loss will have impacts beyond Mr Nicholas. There will also be impacts on his siblings and on the children andmokopuna of the whānau. But we are surprised that Mr Nicholas called no evidence from his siblings or other whānau members to corroborate his narrative of disproportionate impact being visited upon them.35 See for example Lyall v Solicitor-General [1997] 2 NZLR 641 (CA) at 646–647; Duncan v Commissioner of Police [2013] NZCA 477 at [57]; Commissioner of Police v Nelson HC Auckland CIV-2010-404-989, 30 July 2010 at [75]; and Commissioner of Police v Ranga [2013] NZHC 745 at [38].[61] In the context of this land where Mr Nicholas has not established genuine ancestral connection by some other means, as he has been able to do with theWhakamārama land, the absence of practical whānau support through evidenceweakens the potential influence of Mr Nicholas' evidence. We accept (withoutdeciding the point) that the narrow wording of ss 61 and 62 is such that whānaumembers may not have a sufficiently recognisable interest in the land to have standing as applicants in their own right.36 Whānau members may well be reliant onMr Nicholas making the application under s 56. But that does not mean they cannot support the application with evidence.[62] In addition, there is a self-serving element in Mr Nicholas' evidence. Whilewe accept that property boundaries have reduced significance in relation to this landand this whānau, and that Mr Nicholas views the land as a single papakāinga, he wassomewhat disingenuous when he neglected to advise in his evidence that his mother had died after the forfeiture orders were made and was buried at number 635,William Jnr's lot, which was not subject to forfeiture.[63] Overall, we consider a closer analysis of the evidence is required with respect to 631, 633 and 634 in order to assess cogency. The evidence in relation to each lot varies in strength. It demonstrates general whānau connection to 631 and 634, but that is no more than a general whānau perception that these two properties are part ofthe wider papakāinga estate. The gym and workshop land (631) seems to be used asa community facility (whether gang community or otherwise), and little detail isprovided of practical everyday whānau connection with respect to 634 across theroad. According to the Commissioner, it has in the past simply been rented.[64] We think it most unlikely that evidence of the nature adduced in this Court inrelation to those two titles would have influenced Hinton J's attitude. Whileundoubtedly unfortunate, their loss is most unlikely to be considered disproportionate in light of the statutory objectives.36 As we noted "interest" in the "property" is required, and the former is narrowly defined: see [20]and [45] of this judgment.[65] Number 633 may be different. There is more to this land than the fact that itis perceived generally as part of a papakāinga by Mr Nicholas and his whānau.Burial customs have been carried out here. And while that cannot be a decisive factor in a forfeiture case, it is independent evidence of the attitude Mr Nicholas andhis whānau bring to their connection with this particular land.[66] In addition, there is evidence that the residents of 633 do not include just Mr Nicholas and his partner, but also his son and his family. Again, this is far from decisive, but it demonstrates the practical day-to-day papakāinga character of livingarrangements on that lot and corroborates what Mr Nicholas said (in a specific rather than generic way).[67] The Commissioner's response is that young William (Mr Nicholas' son)earns a decent income and has the means to live independently if he and his own family wish to. But that is beside the point. This is a whānau that lives as a whānauin accordance with their own tikanga. There must be a question worth proper consideration about whether the impact of forfeiture on that mode of living will be undue.[68] In the end, while we are not entirely convinced that the impact of the loss of 633 is likely to support a conclusion of undue hardship, we do not discount that as a real possibility. Since we are quite satisfied that evidence in relation to theWhakamārama land may be admitted, the marginal impact of admitting evidence in relation to 633 is limited, and we are prepared to admit it. But the evidence specifically in relation to 631 and 634 is not cogent and we find that it may not be admitted in the appeal.[69] We answer yes to question (c), but only in relation to the Whakamārama land and 633 Maketū Road.A meritorious case?[70] The Commissioner argues essentially that, as Mr Nicholas' substantive casefor undue hardship lacks any real merit, there would be no point in sending the matter back to be reheard.[71] We do not agree. It is true, as the Commissioner points out, theWhakamārama land is general land not Māori land in the technical sense, but its formal legal status is no true indicator of its significance. The 1968 change of status to general land was no more than an administrative act, pursuant to what is now acknowledged to be controversial legislation. What is of real importance in our viewis that the Whakamārama land is part of a hapū estate. Forfeiture of Mr Nicholas'half share will sever not just his links to the land, but those of the wider hapū. Because it is now general land, the hapū have no right of first refusal and probablyno standing under ss 61 and 62. Their links with the land will therefore be lost.[72] We cannot of course predict how a judge rehearing the matter might weigh this factor against other matters, such as the nature and circumstances of Mr Nicholas' significant criminal activity.37 However, we have no doubt that it willbe a matter of real significance in the Court's assessment of "all the circumstances ofthe case".[73] As to 633 Maketū Road, we consider the case for undue hardship has lessmerit, but we do not agree that it is entirely lacking. For that land, the factors, each insufficient on its own, can have real cumulative force. This makes the undue hardship assessment in respect of that land more a matter of degree and evaluation. As we have already said, the factors include that the property is part of a largerpapakāinga, and is the last of the properties Mr Nicholas would be able to contribute to that communal estate. In addition, whenua are buried on the land (including thoseof Mr Nicholas and his children), and Mr Nicholas' son William lives on the landwith his children too.[74] Once again, we cannot know whether these factors cumulatively would lead a judge reconsidering the matter to conclude undue hardship is proven, although we are sure that individually they would not be enough. But we are well satisfied that, if the relevant factors are properly articulated in evidence and argued in submissions as having cumulative effect, they have a real prospect of carrying the day. In our view, that is sufficient for present purposes.37 Criminal Proceeds (Recovery) Act, s 56(2)(c).[75] We answer yes to question (d), but only in respect of the Whakamārama land and 633 Maketū Road.Disposition[76] The application to adduce new evidence is granted in relation only to theevidence affecting the Whakamārama land and 633 Maketū Road. The application isotherwise dismissed.[77] The appeal is allowed and the High Court judgment is set aside in part. The matter is remitted to the High Court to hear evidence with respect to whether theloss of the Whakamārama land and 633 Maketū Road would cause undue hardship inaccordance with s 56 of the Act. Mr Nicholas will be required to make an application accordingly and to file fresh evidence in light of our conclusions and the narrower scope of the application which we are prepared to admit. Relevant timetabling will be for the High Court.[78] In light of the fact that a rehearing is necessary only because of trial counsel error, there will be no costs order.Solicitors:Crown Solicitor, Tauranga for Respondent