Commissioner of Police v Le Roux

[2024] NZHC 1019

ORDER PROHIBITING PUBLICATION OF ANYTHING TENDING TO IDENTIFY THE RESPONDENT OR THE RESTRAINED PROPERTY,

PENDING FIRST CALL OF THE COMMISSIONER’S FORESHADOWED ON NOTICE APPLICATION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-975

[2024] NZHC 1019

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BYRON DAVID LE ROUX

Respondent

Hearing:	On the papers
Counsel:	R M Gibbs and A J Drury for applicant
Date of judgment:	30 April 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 30 April 2024 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

COMMISSIONER OF POLICE v LE ROUX [2024] NZHC 1019 [30 April 2024]

[1]    As duty judge this week, I have the Commissioner’s without notice application for restraining and further (to empower entry to property) orders dated 26 April 2024, seeking to place a BMW and a Porsche vehicle into the hands of the Official Assignee.1

[2]    The application is supported by a 24 April 2024 affidavit sworn by a police officer, contending the vehicles are registered to Mr Le Roux, who has unlawfully benefited from significant criminal activity in possessing heroin for supply,2 and the Porsche potentially is tainted property.

Law

[3]    I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application, or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.3

[4]    If then 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 activity – or the respondents have in any event  “unlawfully  benefited  from  significant  criminal  activity”,  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

Discussion

[5]    ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.5 ‘Significant

1      Criminal Proceeds (Recovery) Act 2009, ss 24 and 25.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (f) and (6).

3      High Court Rules 2016, r 7.46(3) and (5).

4      Criminal Proceeds (Recovery) Act, s 50.

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

criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.6

[6]    Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining orders would put the property at relevant risk, given the vehicles’ ready fungibility, prejudicing the Commissioner in obtaining their forfeit to the Crown; and

(b)on the basis of the police officer’s affidavit, I have reasonable grounds to believe both:

(i)the Porsche is tainted property, as acquired or derived in connection with significant criminal activity of drug offending, or in any event as obtained property with a value exceeding

$30,000; and

(ii)Mr Le Roux has — by receiving substantial payments in excess of reported income, seemingly attributable to revenues obtained by drug offending — unlawfully benefited from such significant criminal activity.

[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 and further order sought.

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

Result

[9]    I order in terms of paras 2 and 3 of the Commissioner’s 26 April 2024 application.

Suppression

[10]   As my order is made without notice to the respondent, I prohibit publication of anything tending to lead to their identification or of the restrained property, pending the first call of the Commissioner’s foreshadowed on notice application.

—Jagose J