Commissioner of Police v Doan

[2018] NZHC 1813

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001482

[2018] NZHC 1813

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ANH TUAN DOAN

Respondent

On the papers:
Counsel:	K E Hogan for Applicant
Judgment:	20 July 2018

JUDGMENT OF CHURCHMAN J

[1]                 On 17 July 2018, the applicant applied, without notice, for restraining orders under ss 24 and/or 25 of the Criminal Proceeds (Recovery) Act 2009.

[2]                 The application related to interests in two properties 54 Kirton Crescent, Manurewa (certificate of title NA3D/311) and 34 Hunua Road, Papakura (certificate of title NA23C/1207), and a Buccaneer 550 boat, motor and trailer (trailer plate F847G).

[3]                 The applicant also sought an ancillary order in relation to 54 Kirton Crescent and 34 Hunua Road that the mortgagor must not increase the sum outstanding under any loans secured by the mortgages on either property, and that at all times payments of the loan to the mortgagee must be maintained.

COMMISSIONER OF POLICE v DOAN [2018] NZHC 1813 [20 July 2018]

[4]                 The grounds on which the orders are sought were that there are reasonable grounds to believe that the property is tainted property, and/or there are reasonable grounds to believe that the property is the property of the respondent and the respondent has unlawfully benefited from significant criminal activity.

[5]                 In relation to the ancillary orders, they were sought on the basis that it was necessary and appropriate to make these orders to allow the Official Assignee to preserve the value of the property in accordance with the statutory duty under s 80 of the Act.

[6]                 Detailed affidavits in support were filed by Detective Sergeant Isileli Richard ‘Aho and Detective Philip James Taylor.

The law

[7]                 Applications of this type can be made without notice where there is a risk of the proposed restrained property being disposed of, or concealed, if notice were given to the respondent and interested parties, or if the interests of justice require the application to be determined without serving notice of the application.

[8]                 I am satisfied on the basis of the affidavit evidence that this is an appropriate case for the making of without notice orders.

[9]                 In relation to the substantive orders, s 24 of the Act provides the Court may make a restraining order if it is satisfied, on reasonable grounds, that the property is “tainted property”.

[10]Tainted property will be property which has been either:

(a)acquired as a result of significant criminal activity; or

(b)directly or indirectly derive from significant criminal activity.

[11]              The evidence satisfies me that the applicant has reasonable grounds to believe that the respondent has engaged in significant criminal activity.

[12]              Section 25 of the Act provides that the Court may make a restraining order if it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity. Again, the information set out in the affidavit satisfies me that the applicant has reasonable grounds for so believing.

[13]              A restraining order is effectively an interim order of finite duration, although it may be renewed on expiry.1

[14]              The Court is not required to make a finding that the relevant property is tainted property, or that the particular person did in fact unlawfully benefit from significant criminal activity, merely that there are reasonable grounds for so believing.2

[15]As Katz J noted in Commissioner of Police v Li:3

The threshold for making restraining orders is therefore relatively low, consistent with their role as a “holding” measure.

Conclusion

[16]              I am satisfied that there are reasonable grounds for belief that the tests in ss 24 and 25 are met, and that the respondent has insufficient legitimate income to explain his acquisition of the property in respect to which this application has been made.

[17]              I am also satisfied that there is risk of disposition if the application is not granted on a without notice basis, and accordingly the application is granted in terms of the order sought.

Churchman J

Solicitors:
Kayes Fletcher Walker Ltd, Auckland for Applicant

1      Vincent v Commissioner of Police [2013] NZCA 412.

2      Above n 1.

3      Commissioner of Police v Li [2014] NZHC 479 at [8].