Commissioner of Police v Marshall

[2023] NZHC 806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-377

[2023] NZHC 806

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

EVLYN DAWN MARSHALL

First respondent

DAVID SIMON MARSHALL
Second respondent

ZACH MARSHALL

Third Respondent

Hearing:

17 April 2023

Appearances:

C D Piho and K F Karpik for applicant NTC Batts for first respondent

M J Taylor-Cyphers for second respondent SNB Wimsett for third respondent

Date of judgment:

18 April 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 April 2023 at 12.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

M J Taylor-Cyphers, Barrister, Auckland SNB Wimsett, Barrister, Auckland Kayes Fletcher Walker, Manukau

Molloy Hucker, Auckland

COMMISSIONER OF POLICE v MARSHALL [2023] NZHC 806 [18 April 2023]

[1]                  The Commissioner seeks assets and profit forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 in relation to the respondents’ residential property in Auckland’s Waiuku and some $25,500 in cash and as the former contents of their bank accounts, all presently in the custody and control of the Official Assignee subsequent to this Court’s restraining orders.1

[2]                  The Commissioner has entered into a settlement with the respondents as to property and money to be forfeited to the Crown. Under s 95, I “must approve the settlement if … satisfied that it is consistent with … the purposes of this Act; and … the overall interests of justice”. The “primary purpose” of the Act is:2

… to establish a regime for the forfeiture of property … that has been derived directly or indirectly from significant criminal activity; or … that represents the value of a person’s unlawfully derived income.

[3]                  The Commissioner alleges the property and cash is ‘tainted’ as wholly or in part derived, or reflects unlawful benefit, from the respondents’ significant criminal activity for which they were convicted of multiple drug-related offences carrying maximum terms of imprisonment of five years or more.3 The parties agree a profit forfeiture order in the amount of $200,000 may be made jointly and severally against the respondents, to be discharged in part by release of the funds in the hands of the Official Assignee and otherwise for payment from legitimate sources by 14 June 2023 (or, if then remaining unpaid, by the Official Assignee’s sale of the Waiuku property).

[4]                  The Commissioner’s contention of the respondents’ unlawful benefit in the amount of some $1.67 million relies principally on three years’ extrapolation from four full (and two part) days’ surveillance of the respondents’ activities at a former residential property. The property was observed attended on average by nearly 120 people a day, each seeming to conduct some form of transaction with an occupant (each conservatively assumed to be a $20 drugs acquisition), together with some

$26,700 in cash and  drugs valued  at some  $24,500 found at the  address and some

$47,000 indeterminate receipts into the respondents’ bank accounts.

1      Commissioner of Police v Marshall HC Auckland CIV-2020-404-0377, 3 March 2020;

Commissioner of Police v Marshall HC Auckland CIV-2020-404-0377, 28 April 2020.

2      Criminal Proceeds (Recovery) Act 2009, s 3(1).

3      Sections 50(1) and 55.

[5]                  The uncertainties in the Commissioner’s extrapolated quantification of the respondents’ unlawful benefit are obvious, but do not undermine its derivation directly or indirectly from their significant criminal activity. I am in no position to second-guess the parties’ inferred calculation $200,000 represents the value of the respondents’ unlawfully derived income. As such, I am satisfied the parties’ settlement is consistent with the primary purpose of the Act to obtain its forfeiture, and the overall interests of justice in securing such forfeiture by consent.

[6]                  I therefore approve the parties’ settlement as set out at para 17 of their joint memorandum dated 17 April 2023, and order in terms of its subparas 20(a)–(i).

—Jagose J