De Bruin v Solicitor-General of New Zealand CA187/05 [2005] NZCA 415 (14 December 2005)

Last Updated: 22 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA187/05
_CA188/05

BETWEEN ROBERT CHARLES DE BRUIN & ASTRID ELEANOR DELANEY Applicants

AND THE SOLICITOR-GENERAL OF NEW ZEALAND

Respondent

Hearing: 5 December 2005

Court: Anderson P, Glazebrook and Hammond JJ Counsel: S L Abdale for Applicants

M D Downs for Crown

Judgment: 14 December 2005

_{JUDGMENT OF THE COURT}

_{Leave to appeal is granted. Costs are reserved.}

REASONS

_{(Given by Glazebrook J)}

Introduction

[1] Mr De Bruin was found guilty on six counts of importing a class B controlled drug (ecstasy), six counts of selling drugs of the same type and nine money-laundering counts. A forfeiture order under the Proceeds of Crime Act 1991

_{was made in relation to a property in Riddell Road and certain other items. On}

DE BRUIN & DELANEY V THE SOLICITOR-GENERAL OF NEW ZEALAND CA CA187/05 14 December

2005

7 March 2005, however, this Court quashed Mr De Bruin’s convictions and ordered a re-trial. The forfeiture order was therefore discharged by operation of s 19 of the Proceeds of Crime Act.

[2] The Crown applied for a restraining order in relation to the previously forfeit property and this order was granted by Venning J on 22 July 2005. Mr De Bruin and Ms Delaney (Mr De Bruin’s former partner) seek leave to appeal against the restraining order out of time. The Crown opposes leave being granted but only on the basis that there is no jurisdiction to appeal the grant or refusal to grant a restraining order. The issue, therefore, is whether there is jurisdiction to hear the appeals.

The legislation

[3] Section 82 of the Proceeds of Crime Act provides as follows:

82 Appeals

(1) In this section, relevant conviction, in relation to a forfeiture order, a pecuniary penalty order, or an order under section 29(3) of this Act, means the conviction of a serious offence which was relied on to support the order.

(2) A person who has an interest in property against which a forfeiture order is made may appeal against that order as if the order were a sentence imposed on the person in respect of the relevant conviction.

(3) A person against whom a pecuniary penalty order is made may appeal against that order as if the order were a sentence imposed on the person in respect of the relevant conviction.

(4) Where a Court makes a pecuniary penalty order and makes an order under section 29(3) of this Act declaring that certain property is available to satisfy the order, a person who has an interest in that property may appeal against the order under section 29(3) of this Act as if the order were a sentence imposed on the person in respect of the relevant conviction.

(5) The Solicitor-General may appeal against a forfeiture order, a pecuniary penalty order, or an order under section 29(3) of this Act, or against the refusal of a Court to make any such order, as if the order or refusal were a sentence imposed in respect of the relevant conviction.

(6) Where an application is made to a Court for an order under section 18 of this Act, the applicant or the Solicitor-General may appeal against the whole or any part of the decision of the Court on that application as if the decision were a sentence imposed,—

(a) In the case of an appeal by the applicant, on the applicant in respect of the conviction in respect of which a forfeiture order is sought or has been made:

(b) In the case of an appeal by the Solicitor-General, in respect of the conviction in respect of which a forfeiture order is sought or has been made.

[4] Section 83 in relevant part provides as follows:

Procedure on appeal –

(1) An appeal under section 82 of this Act shall be made to the Court of Appeal, and the provisions of Part 13 of the Crimes Act 1961 shall, with all necessary modifications, apply as if the appeal were an appeal under section

383 of that Act.

The applicants’ submissions

[5] Written submissions on jurisdiction were filed by Mr Weir on behalf of Mr De Bruin. Ms Delaney relied on those written submissions and her counsel, Ms Abdale, spoke to those submissions on behalf of both of the applicants.

[6] Ms Abdale submitted that it is well recognised in the cases that the Proceeds of Crime Act is an unusual hybrid between the civil and criminal jurisdiction. While final forfeiture orders are criminal in nature as they can only be made after conviction, in her submission, restraining orders are civil in nature. Restraining orders are treated as originating applications within the High Court Rules (see Part 4A, r 458D(1)(a)(xvii)). They are made before conviction and can affect the rights of third parties who are not accused of any offending, as is the case with Ms Delaney. It was submitted therefore that there must be a statutory right to appeal under s 66 of the Judicature Act 1908.

[7] Ms Abdale pointed to the decision of Anderson J in Newton v Solicitor- General (2000) 14 PRNZ 190 as supporting this submission. The Judge said:

[16] Restraining orders can cause great inconvenience and expense, affecting as they do property owner’s rights to deal with their property and this Court should not readily infer, in the absence of specific provision to appeal in the Proceeds of Crime Act 1991, that there is no appeal against them. The only avenue of appeal must be civil and in my opinion there is sufficient authority for an appeal under section 66 of the Judicature Act 1908 and r 3 of the Court of Appeal (Civil) Rules 1997.

[17] Because the purpose of restraining orders is not punishment or deterrence; and because the appeal provisions relating to them are civil; I conclude that a restraining order is “a proceeding” in terms of r 3 of the High Court Rules and accordingly jurisdiction to make a costs order in respect of them may be found in r 46.

[8] It was submitted further that there would have to be an express denial of the right to appeal under the Proceeds of Crime Act to override s 66 of the Judicature Act (as in Comalco NZ Ltd v TVNZ [1997] NZAR 145) and there is no such express denial. In Ms Abdale’s submission, the fact that there is no express mention of an appeals process in ss 82 or 83 of the Proceeds of Crime Act is not sufficient.

The Crown’s submissions

[9] In the Crown’s submission, s 66 of the Judicature Act has no application in relation to restraining orders because:

(a) An application for a restraining order is better seen as a criminal proceeding, albeit one that employs civil machinery. In the Crown’s submission, such applications are predicated upon criminal proceedings in relation to serious offences and thus they are better seen as being an adjunct to those criminal proceedings.

(b) Even if civil in nature, the Crown submitted that the structure and purpose of the Proceeds of Crime Act tell against there being a right of appeal. The omission of a right of appeal concerning restraining orders in the Act must, in the Crown’s submission, be seen as deliberate, given ss 82 and 83 of the Act, the interim nature of restraining orders and the remedial provisions permitting exclusion of untainted interests and the payment of various expenses from restrained property.

[10] Mr Downs, however, responsibly drew our attention to the House of Lords decision in Government of the United States of America v Montgomery [2001]

1 WLR 196 which, although on the basis of different legislation, held that restraint orders were civil in nature. See in particular Lord Hoffman’s analysis at [19] – [23].

Discussion

[11] In our view there is jurisdiction to hear these appeals. While there is no doubt that orders under the Proceeds of Crime Act are a hybrid between criminal and civil proceedings, we are not able to accept the submission of the Crown that restraining orders are primarily criminal in nature. It is true that forfeiture orders have been held to be criminal in nature – see R v Black (1997) 15 CRNZ 278. Forfeiture orders, however, follow conviction.

[12] The laying of criminal charges provides the occasion for an application for restraining orders and the jurisdiction to make them. However, they are made before there is a conviction and can affect the rights of third parties. They also affect proprietary interests and proceed in accordance with a civil procedure. They have a close analogy to Mareva injunctions and preservation orders, which are clearly civil in nature. While restraining orders are of limited duration, it would normally be expected that there would be a right of appeal with regard to decisions which interfere with property rights, even temporarily.

[13] We also accept the submission of the applicants that the Proceeds of Crime Act does not explicitly exclude a right of appeal. In the absence of such an explicit exclusion, the general appeal right under s 66 of the Judicature Act subsists. We do not accept the Crown’s submission that the scheme of the Proceeds of Crime Act excludes appeals except where they are explicitly provided for. It could even be argued that the explicit appeal provisions in the Act with regard to forfeiture orders are in fact designed to turn what would otherwise be civil appeal provisions into criminal appeal provisions – see in particular s 83.

Result and costs

[14] As we have found in favour of the applicants on the jurisdictional point and the Crown does not oppose leave to appeal being granted on any other ground, we grant the applicants’ application for leave to appeal.

[15] All issues relating to costs are reserved and can be dealt with at the time of the substantive appeal.

Solicitors:

Dyer Whitechurch, Auckland for R C De Bruin

Tetley-Jones Thom Sexton, Auckland for A E Delaney

Crown Law Office, Wellington