Commissioner of Police v Evans

[2024] NZHC 2151

THIS JUDGMENT HAS BEEN REDACTED

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-94

[2024] NZHC 2151

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

NICHOLAS EVANS

First Respondent

AND

BANK OF NEW ZEALAND

Interested Party

AND

ANZ BANK LIMITED

Interested Party

AND

UDC FINANCE LIMITED

Interested Party

AND

NICHOLAS JOHN BANKS

Interested Party

Hearing:	On the papers
Appearances:	R D Smith for Applicant
Judgment:	2 August 2024
Reissued:	22 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 2 August 2024 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COMMISSIONER OF POLICE v EVANS [2024] NZHC 2151 [2 August 2024]

[1]                 The Commissioner of Police (the Commissioner) has filed a without notice application for a restraining order under the Criminal Procedure (Recovery) Act 2009 (CPRA) seeking to restrain the following property:

Real Estate

(a)25 New Street, Saint Kilda, Dunedin with a legal description of PTS LOTS 27 28 BLK 2 DP 68. Rateable Value $475,000. Registered proprietor Nicholas Evans. Nicholas Evans is the only proprietor listed on the title.

Vehicles

(b)2023 grey Ford Mustang Mach-e RWD motor vehicle registration: QFZ222. Registered to SAB Nol Limited of which Nicholas Evans is the director. Valued at approximately $78,200.

Businesses

(c)All shares held by the respondent, Nicholas Evans, in SAB Group Limited, company number 8664066, with its current registered office at 4 Taylor Street, Green Island, Dunedin, 9018. Nicholas Evans is the sole director and 100% shareholder.

(d)All shares held by SAB Group Limited in SAB Nol Limited, company number 8672267, with its current registered office at 4 Taylor Street, Green Island, Dunedin, 9018. Nicholas Evans is the sole director and SAB Group Limited is the 100% shareholder.

Bank accounts

(e)All ANZ bank accounts held by SAB Group Limited and SAB No1 Limited holding a balance of $500 or greater. Relevant bank accounts are:

(i)[redacted] business account in the name of SAB Group Limited.

(ii)[redacted] business account in the name of SAB Group Limited.

(iii)[redacted] business account in the name of SAB Nol Limited.

(iv)[redacted] business account in the name of SAB Nol Limited.

[2]The grounds on which the order is sought are as follows:

(a)the property identified is tainted property as defined under s 5 of the CPRA;

(b)the respondent has unlawfully benefitted from significant criminal activity, again as that term is defined in the CPRA; and

(c)there is a risk of the restrained property being destroyed, disposed of, altered or concealed if the application proceeded on notice.

[3]                 As the supporting memorandum explains, the respondent has been convicted of charges of cultivating cannabis, selling cannabis and possessing cannabis for sale, all of which are offences which fall within the definition of “significant criminal activity” under s 6 CPRA.

[4]                 The application is supported by the affidavit of Kelsey Jessie Maree Morgan dated 22 July 2024 which outlines the grounds for the Commissioner believing that the respondent has an interest in the respective property which is sought to be restrained. It also sets out the grounds for believing that the proceeds of cannabis sales were applied to purchase the vehicles which are the subject of the application for a restraining order, thus tainting them, as well as grounds for believing that proceeds of cannabis  sales  were  used  to  pay  the  mortgage  in  respect  of  the  property  at  25 New Street, Dunedin, thus tainting that property as well.

[5]                 While some of the property is not directly held by the respondent, the Commissioner has also made an application pursuant to s 17A of the CPRA to have the respondents’ effective control over property treated as an interest in property. In particular, it makes this application in respect of the respondents’ interests in:

(a)the Ford Mustang (registration QFZ222), registered to SAB No1 Ltd;

(b)the Mazda B2-50 utility vehicle (registration JRK919), registered to 2NB Ltd;

(c)all shares in SAB Group Ltd; and

(d)the bank accounts of both SAB Group Ltd and SAB No1 Ltd where the balance of those accounts is $500 or greater.

[6]                 This application has been made on the basis that the respondent is the sole director and shareholder in both SAB No1 Ltd and SAB Group Ltd and thus has effective control of the property belonging to those companies. The respondent also appears to have effective control of 2NB Ltd, having described as the operations manager and having individual signing authority over 2NB Ltd’s bank accounts, with the respondent acknowledging he purchased the Mazda B2-50 utility vehicle and registered it in the name of 2NB Ltd. The Commissioner submits that the respondent has effective control over this property pursuant to s 17A of the CPRA and, accordingly, pursuant to s 17A(4) that property may be included in any restraining order that is made against the respondent.

[7]                 I am satisfied, having regard to the evidence in the affidavit filed in support of the application that the grounds for making a without notice restraining order in respect of the specified property is made out. I note that such an order is a “temporary order” and requires “reasonable grounds to believe” rather than “proof that the target has unlawfully benefitted from significant criminal activity”.1 The making of a restraining order is not a final determination and the allegations made by the Commissioner can be contested, whether in the making of an on notice restraining order or in any subsequent civil forfeiture order proceedings.

[8]                 Being satisfied that the grounds in s 25 of the CPRA are made out in that there are reasonable grounds to believe that the respondent:

(a)has unlawfully benefitted from significant criminal activity; and

(b)has an interest in, or effective control over, the property identified in the application.

[9]                 I am satisfied that it is appropriate to make an order on a without notice basis restraining the property listed in [1] above, on the terms sought by the Commissioner.

Solicitors:

Crown Solicitor, Dunedin

1      Vincent v Commissioner of Police [2013] NZCA 412 at [47].