Commissioner of Police v Magnoli

[2024] NZHC 3165

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2023-483-000031

[2024] NZHC 3165

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant

AND

ANTHONY JOSEPH JOHN MAGNOLI

First Respondent

KATHRYN MARTA MAGNOLI
Second Respondent

AND

MAGNOLI CLOTHIERS LIMITED

First Interested Party

Hearing:

On the papers

Counsel:

J J Harvey and K D Turner for Applicant

J B Gilbert for First and Second Respondents and for First Interested Party

Judgment:

30 October 2024

JUDGMENT OF RADICH J

[1]                 In this decision, I approve, under s 95 of the Criminal Proceeds (Recovery) Act 2009, a proposed settlement between the Commissioner and the respondents.

[2]                 The total funds alleged in this proceeding to be derived directly from the respondents’ unlawful activities is $57,285.74. Those funds are subject to restraining

COMMISSIONER OF POLICE v MAGNOLI [2024] NZHC 3165 [30 October 2024]

orders, granted under the Act.1 The Commissioner and the respondents have agreed upon the terms of a profit forfeiture order under the Act.

[3]                 In accordance with s 95(3) of the Act, I am satisfied that the settlement is consistent with both the purposes of the Act and the overall interests of justice.

[4]                 The purpose of the Act is to ensure that no benefit can be obtained from a person’s unlawfully derived income and that, through forfeiting income of that type, criminal activity is deterred.2

[5]                 In this case, in circumstances in which the Commissioner considers that he has a good case to show that grounds exist for forfeiture orders to be made, the purpose of the Act will be achieved through the orders that are sought.

[6]                 Moreover, it is in the overall interests of justice to enable the settlement to be effected given the savings of time and cost and the litigation risk to the parties.3

[7]                 Accordingly, I approve the settlement outlined in [12] of the Joint Memorandum Seeking Approval of Settlement, dated 2 October 2024, under s 95 of the Act.

[8]                 By consent, I make a profit forfeiture order under s 55(1) of the Act. The value of the benefit and the maximum recoverable amount, in terms of s 55(2)(a) and (b) is, in both cases, $57,285.74 in funds which are in the Official Assignee’s custody and control.

[9]                 The funds referred to  in  [8] above are to be disposed of in accordance with  s 83(1) of the Act.

1      A without notice application for restraint was granted by Cull J on 7 December 2023 and an on notice application was granted by Gwyn J on 1 February 2024.

2      Criminal Proceeds (Recovery) Act 2009, s 3 and see, for example, Hayward v Commissioner of Police [2014] NZCA 625 at [29].

3      See, for example, Commissioner of Police v Zhang [2016] NZHC 930 at [8] and Commissioner of Police v Kree [2013] NZHC 2972 at [11].

[10]              Costs are to lie where they fall in relation to all matters between the parties in this proceeding.

[11]The Court notes the following further terms of the agreed settlement:

(a)The Commissioner will not pursue any further applications under the Criminal Proceeds (Recovery) Act 2009 against the respondent in respect of the activities, customers and payments described in the evidence in this proceeding to date, or in the summary of facts adopted in criminal proceedings CRI-2021-083-000877.

(b)The Commissioner agrees not to make any pro-active media statement about the case. If media approach Police for comment Police will apply the appropriate tests to assessing an individual’s privacy under the guidelines issued by the Ombudsman to agencies in answering any questions.

(c)The settlement is in full and final settlement of the current proceeding brought by the Commissioner against the respondent under the Act.

Radich J

Solicitors:

Wilkinson Smith Lawyers, Whanganui for Applicant

Crowley Waugh, Whanganui for First and Second Respondents and for First Interested Party