Burgess v Commissioner of Police HC Auckland CIV 2010-404-2893

[2010] NZHC 1557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002893

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  KARL BURGESS Applicant

ANDTHE COMMISSIONER OF POLICE Respondent

Hearing:         2 September 2010

Counsel:         DG Johnstone for Applicant

CB Cato for Respondent

Judgment:      2 September 2010

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:

Crown Solicitor, P O Box 2213, Auckland 1140 (Fax: [phone])
Mr AG Speed, P O Box 941, Shortland Street, Auckland 1140 (Fax: [phone])

Mr CB Cato, P O Box 302-603, North Harbour, North Shore City 0751 (Fax: [phone])

BURGESS V  POLICE HC AK CIV-2010-404-002893  2 September 2010

[1]      The Commissioner, in his application of 2 July 2010, seeks orders under the Criminal Proceeds (Recovery) Act 2009 in relation to sums of cash found in a safe in the property occupied by the respondents at 32 Henwood Road, Taupaki.   Those sums comprised NZ$45,320 AUS$101 and US$2,942.  There is no opposition to a restraining order, save in relation to NZ$6,000 and US$1,000 advanced on behalf of the respondents’ son, Karl Burgess.  He asserts that these sums were held in the safe by his father on his behalf.

[2]      Mr Cato called Mr Karl Burgess to give evidence.   He said that the US currency was an amount left over after he had been on holiday in the United States. He took with him some US$4,000.  When he returned, he gave his father the balance to keep in the safe on his behalf.

[3]      Mr Burgess explained that he had difficulty managing money (my words and to put it neutrally) and was accustomed to entrusting his father with any surplus funds in order to put them out of his reach.  So it was that he explained that over a period of some four years it has been his habit to hand to his father whatever money he had left over from his wages at the end of the week.  He said the sums varied from

$50 to $200.  He did not keep a record himself but understood his father to know precisely how much he held on behalf of his son.

[4]      To put it in its conceptual framework, this application is to release the funds from restraint on the basis that there are not reasonable grounds for belief that they form part of the tainted property.   It is not a final determination of whether these funds are tainted property for the purpose of the Act.  This, of course, poses some disadvantages for the applicant because he is reliant on his own largely uncorroborated evidence and is unable to rely on evidence which would or might have a bearing on whether there are reasonable grounds for believing that the sums kept in the safe were tainted property.

[5]      His evidence was unsupported by any detailed financial records and I am left with no reliable basis on which I could make any findings as to the amounts he might have saved each week.  He acknowledged that he faced expenditure on board

of $150, expenses in relation to his motor car and the usual costs of running a household such as telephone and electricity.  Had he provided some form of budget which made it clear that he was in a position to make savings, he may have been able to present a stronger case.  As it is, the evidence on which he relies to establish that the $6,000 came from his savings is without precision and amounts to little more than guesswork.

[6]      Mr Karl Burgess said that his father knew precisely what sums he held on his behalf.  That is not, however, what his father has said in a supporting affidavit.  He deposes:

I also confirm that my son, Karl Burgess, deposited money with me and that I can recall that his money was a mixture of American dollars and NZ currency.  I cannot recall the exact amount.

[7]      Contrary, then, to the applicant’s belief, his father would, it would seem, have little idea of how much of the money held in the safe might have belonged to his son. In these circumstances, there is no sound evidential basis on which I could conclude that any of the sums held in the safe were the property of the applicant.   His application for the specified sums to be exempt from the restraining order is accordingly dismissed.   There will be an interim order in terms of para 1 of the application of 2 July 2010.