COMMISSIONER OF POLICE AND KEVIN JOHN MURPHY

[2024] NZHC 2702

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-204

[2024] NZHC 2702

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KEVIN JOHN MURPHY

Respondent

AND

ROSANNA GRACE CLARKE

Interested party

Hearing:	On the papers
Appearances:	KRL Guthrie for applicant
Date of judgment:	18 September 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 September 2024 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Hamilton

COMMISSIONER OF POLICE v MURPHY [2024] NZHC 2702 [18 September 2024]

[1]                 As duty judge, I have the Commissioner’s on notice application for restraining and further orders dated 31 July 2024, seeking to place a vehicle into the hands of the Official Assignee, and for his sale of the vehicle.1

[2]                 The application is supported by current and former police officers’ affidavits sworn respectively 25 and 26 July 2024, contending the vehicle is tainted property as having been obtained by Mr Murphy from his significant criminal activity in serious drug offending,2 with which he presently is charged.

[3]                 The application was served on Mr Murphy on 7 August 2024 and an interested party on 8 August 2024. Neither has taken any step in opposition to the application and made no appearance on its call in the civil list before me on 18 September 2024.

Law

[4]                 If I am satisfied I have reasonable grounds to believe the property is “tainted property” — that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity3 — I may make a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.4

[5]                 On application, I may, if I consider it appropriate, make further orders in relation to the restrained property, including (without limitation) to direct the Official Assignee to sell restrained property to preserve its value.5

Discussion

[6]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.6 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of

1      Criminal Proceeds (Recovery) Act 2009, ss 21, 24 and 34.

2      Misuse of Drugs Act 1975, s 6.

3      Criminal Proceeds (Recovery) Act, s 5 (definition of “tainted property”).

4      Section 24.

5      Sections 34 and 35(e)(v).

6      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

5 years or more, or offending obtaining property with a value exceeding $30,000.7 When restrained property is depreciating in value, a sale order may be appropriate to preserve that value.8 Holding costs may be considered in the exercise of the discretion, if sale otherwise is appropriate to preserve the restrained property’s value.9

[7]                 I am satisfied, on the basis of the police officers’ affidavits, I have reasonable grounds to believe the property  is  tainted  property,  as  acquired  or  derived  by  Mr Murphy in connection with significant criminal activity of serious drug offending, or in any event as so-obtained property with a value exceeding $30,000.

[8]                 I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining order sought.

[9]                 Given likely delay in determining forfeiture, I also consider it appropriate to direct the Official Assignee to sell the vehicle — which presently is valued at $50,000, but incurring storage costs and depreciating to diminish its value by about 30 per cent per annum — to preserve its value in the hands of the Official Assignee.

Result

[10]             I order in terms of paras 2–3 and 5–6 of the Commissioner’s 31 July 2024 application.

—Jagose J

7      Criminal Proceeds (Recovery) Act, s 6(1).

8      McQuade v Commissioner of Police [2024] NZCA 46 at [26].

9 At [27].