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Court of Appeal of New Zealand |
Last Updated: 2 February 2018
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IN THE COURT OF APPEAL OF NEW
ZEALAND
BETWEEN THE SOLICITOR-GENERAL
Appellant
AND SLAWOMIR RYSZARD BUJAK
Respondent
Hearing: 14 August 2008
Court: Chambers, Robertson and Baragwanath JJ
Counsel: J C Pike and N P Chisnall for
Appellant
G M Illingworth QC for
Respondent
Judgment: 1 September 2008 at
10am
|
JUDGMENT OF THE COURT
|
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath
J)
Table of Contents
Para No
Introduction [1]
Events to date [3]
The case returns to the
High Court [15]
Submissions
on appeal [18]
Discussion [21]
The international
context [23]
The
character of a foreign restraining order and of a registered order [26]
The Public
Prosecutor’s order nisi [28]
The Police Court’s
order absolute [29]
Comment on the High Court
decision [31]
Our
approach [41]
Decision [49]
Introduction
[1] This case is before this Court for a second time. In R v Bujak [2007] NZCA 347 this Court allowed an appeal from a decision of the High Court to register an order under the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and referred the case back to the High Court. Clifford J declined to register the order on 16 November 2007 and the Solicitor-General has appealed. Substantially more evidence is now before the Court.
[2] Under the MACMA, a “foreign restraining order” can be registered so that it takes effect in the same manner as if it were a domestic restraining order made under the Proceeds of Crime Act 1991 (PCA). The central issue in this case is whether Polish orders made in relation to the respondent’s property should be characterised as foreign restraining orders.
Events to date
[3] The respondent is suspected of criminal offending in Poland, including what in New Zealand would constitute obtaining money and property by false pretences and theft by conversion of a number of large commercial vehicles. The offending is said to involve more than US$1m. There is evidence that the respondent disposed of his assets in Poland and imported the proceeds of his crimes into New Zealand where he opened six bank accounts and acquired a property in Christchurch. The Solicitor-General alleges that the credits in the accounts and the property are the proceeds of the alleged offending in Poland.
[4] Acting under s 55 of the MACMA, the Central Authority of the Republic of Poland requested the Attorney-General to assist with the enforcement of an order issued by the Regional Court in Wloszczowa (the Polish Court) on 26 June 2006. That decision granted “a motion by the District Public Prosecutor in Kielce for granting an enforcement clause to the decision to impose security on property” (translation). The Polish Court decided to:
[G]rant the enforcement clause to [the prosecutor’s decision] to secure the fine which [the respondent] is likely to be sentenced to and claims for repairing property damages by:
...
[5] Under Polish law, the Public Prosecutor has power to make what we would call an “order nisi”: a determination without operative effect which a Judge may render enforceable by granting what in the translation is called an “enforcement clause” but what is in our parlance an “order absolute”. We refer to the Polish Court’s decision as “the Polish order”.
[6] To be registered under the MACMA, the Polish order must constitute a “foreign restraining order”, defined by s 2(1) of the MACMA as:
... an order—
(a) That is made under the law of a foreign country by any court or other judicial authority in respect of—
(i) Property that is or may be tainted property in respect of an offence against the law of that country; or
(ii) Benefits that have been derived, or may have been derived, by a person from the commission of such an offence; and
(b) That restrains a particular person, or all persons, from dealing with property:
“Tainted property” includes proceeds of a serious offence (one punishable by imprisonment for a term of five years or more): (s 2(1) of the PCA, imported by s 2(1) of the MACMA).
[7] Section 55 of the MACMA states:
55 Request for enforcement of foreign restraining order
(1) A foreign country may request the Attorney-General to assist with the enforcement of a foreign restraining order in respect of property that is believed to be located in New Zealand.
(2) Where, on receipt of a request made under subsection (1) of this section, the Attorney-General is satisfied—
(a) That the request relates to a criminal investigation, or criminal proceedings, in respect of a foreign serious offence; and
(b) That there are reasonable grounds for believing that some or all of the property to which the order relates is located in New Zealand,—
the Attorney-General may authorise the Solicitor-General, in writing, to apply to the High Court for the registration of the order.
[8] The Attorney-General, being satisfied that the request related to a criminal investigation in respect of a foreign serious offence, authorised the Solicitor-General to apply to the High Court for the registration of the order. On 12 March 2007, the Solicitor-General applied without notice to the respondent for an order that the Polish order be registered in New Zealand.
[9] The evidence supporting the application included:
- (a) a memorandum to the Attorney-General from the Head of Department of International Affairs of the National Prosecutor’s Office at the Ministry of Justice in Warsaw and a formal request for assistance;
- (b) the Public Prosecutor’s decision of 30 May 2001 to amend an earlier decision by freezing property of the respondent;
- (c) excerpts from the Polish Criminal Code;
- (d) the prosecutor’s decision of 23 June 2006 to amend the earlier decision on freezing the respondent’s property; and
- (e) the decision of the Polish Court of 26 June 2006 to grant enforcement of the Public Prosecutor’s decision of 23 June 2006.
[10] Section 56 of the MACMA states:
56 Method of registration of foreign orders
(1) Where the Solicitor-General applies to the High Court for the registration of a foreign order in accordance with an authorisation given under section 54 or section 55 of this Act, the Court shall, subject to subsections (3) to (5) of this section, if it is satisfied that the order is in force, order that the order be registered.
(2) On registering a foreign forfeiture order in accordance with this section, the Court shall comply with section 23B of the Proceeds of Crime Act.
(3) An order, or an amendment of an order, shall be registered in the Court by the registration, in accordance with the prescribed procedure, of—
(a) A copy of the appropriate order or amendment sealed by the Court or other authority making that order or amendment ...
...
[11] On 2 April 2007, Clifford J in the High Court granted the ex parte application that the Polish order be registered in New Zealand. The High Court order was served on the relevant New Zealand banks and also on Land Information New Zealand so as to bind the Christchurch property.
[12] The respondent appealed, and on 15 August 2007 this Court allowed the appeal and remitted the proceedings to the High Court. It ordered that the High Court order should stand but permitted the respondent to apply to set it aside. This Court also stated that it would be open to the parties to address whether the Polish order was or was not within the definition in the MACMA and that nothing said in the judgment was intended to preclude any other relevant authorities or affidavit material being placed before the High Court.
[13] In argument in support of that appeal, Mr Illingworth QC had submitted that the Polish order was not a “foreign restraining order” as defined by s 2(1) of the MACMA; that the relevant Polish criminal law appeared to contain no requirement for the prosecution to establish any connection between the offences alleged and the property to be secured by the Polish order.
[14] This Court held that there was procedural deficiency in the ex parte application. We reproduce the salient paragraphs. In this, as in later citations, except as otherwise stated, we have emphasised passages that have received close consideration on the present appeal:
[45] Faced with the obvious force in the argument which Mr Illingworth ran – and the support for that argument garnered from Australian appellate authority – Ms Laracy [for the Solicitor-General] stoutly attempted to maintain what can be reduced to two arguments.
[46] First, she advanced what in simple terms amounts to an “ouster” argument. That is, she suggested that the determination of the character of the foreign order is entirely a matter for the Attorney-General and that that view is not subject to appeal. The argument is inherently unattractive, and in any event is wrong in principle. What kinds of foreign restraining orders may be registered have been specified by Parliament. The view reached by Parliament is set out in the statutory definition, which must be met.
[47] Significantly, the view reached by the New Zealand Parliament as to the reach of restraining orders bears a real degree of conformity to the New Zealand domestic proceeds of crime legislation. In short, in a general way the New Zealand Parliament elected to give as much assistance in New Zealand to overseas law enforcement authorities as it would to New Zealand authorities, but no more. For it would be a rather odd result if a foreign law enforcement agency could get more by way of pre-conviction relief here than could be had by a New Zealand agency.
[48] The second broad argument run by Ms Laracy was that, properly understood, the relief being sought is within the sort of thing contemplated by the New Zealand definition. This rests, it seems, on enquiries made by Crown counsel of the Polish authorities. These were understandably characterised by Mr Illingworth as “unverified hearsay allegations” as to the scope of the Polish legislation. It also seemed to be suggested that in fact Mr Bujak has assets in New Zealand that can be linked back to what he had done in Poland. But in the absence of proper evidence, these matters cannot be presently resolved.
[49] We consider that, as matters presently stand, the appellant’s submission as to the substance of the application is entirely correct: the Court cannot give effect to an application for an order made by the Attorney-General that is, on its face, outside the statutory definition in New Zealand of a “foreign restraining order”. Whether further clarification can be had is a matter for proper evidence, and Mr Bujak may well wish to contest the Crown view.
Conclusion
[50] The disposition of this application has gone awry, both as a matter of process and because an incorrect view was taken of what had to be established by the Attorney-General.
[51] In the result, the appeal must be allowed. But it is not, we think, a case for presently simply setting aside, in its entirety, the order made in the High Court.
We have recorded the orders made at [12] above.
The case returns to the High Court
[15] The Solicitor-General filed four further affidavits. One comprised a deposition by the Public Prosecutor as to the character of the order of 26 June 2006. The other three were by customs officers deposing that the respondent had brought large sums of cash into New Zealand.
[16] On 16 November 2007 Clifford J gave judgment for the respondent: HC WN CIV-2007-485-522. He found that it was not proved that the Polish order was made in respect of tainted property. He accepted that where a defendant has derived a benefit from the commission of an offence, an order may be made under against property that is not “tainted” (at [26] – [27]). He also accepted that the Public Prosecutor made her decision to seize the respondent’s property on the basis that it was “in respect of benefits that [might have] been derived ... from the commission of a relevant offence”: at [56]. So if the Public Prosecutor had been the judge in this case, her decision would have fallen within the definition of “foreign restraining order”. But Clifford J was not satisfied that the Solicitor-General had established that the Polish Court had made its decision “in respect of ... benefits that ... [might] have been derived” so as to fall within the MACMA definition of a “foreign restraining order”.
[17] Nor did Clifford J accept that the Polish order constituted a “restraint” in terms of para (b) of the definition as distinct from the “seizure” of property which it authorised. He did not accept the evidence of the Public Prosecutor that a decision to seize assets meant in context a restraint, or that she had established her qualification to give expert evidence. He held that since the Polish order did more than restrain the respondent’s Christchurch property it was not a “foreign restraining order” and was not registrable.
Submissions on appeal
[18] Mr Pike for the Solicitor-General submits that the reasoning of this Court in its decision of 15 August 2007 is wrong and should not be followed; and that the High Court erred in its decision.
[19] Mr Illingworth for the respondent submits that Clifford J was correct in holding the Polish Court did not purport to make its order in respect of derived benefits. Nor did it purport to restrain persons from dealing with the property: it purported both to seize assets rather than to restrain persons from dealing with them and, in relation to the Christchurch property, it purported to operate as a “compulsory mortgage”.
[20] He further submits that the appeal should be dismissed as an attempt to reargue issues which this Court has already determined.
Discussion
[21] Despite its judgment of 15 August 2007, this Court has jurisdiction to entertain the appeal. The reference back to the High Court to consider any further evidence makes plain that this Court did not purport to give any final ruling which could give rise to res judicata.
[22] With the assistance of substantially more information and fuller argument we are satisfied that:
- (a) it is unnecessary for this Court to consider the law of the foreign state beyond the factual issue of whether the conditions of the New Zealand statute are satisfied;
- (b) the Public Prosecutor was qualified to give evidence as to the matters to which she deposed;
- (c) in terms of the definition in s 2(1) ([6] above) of “foreign restraining order”:
- (i) the Polish order is indeed such an order, indeed satisfying both subparagraphs of para (a) of the MACMA definition clauses, as being:
... made under the law of a foreign country by any court or other judicial authority in respect of—
(i) Property that is or may be tainted property in respect of an offence against the law of that country; [and also]
(ii) Benefits that have been derived, or may have been derived, by a person from the commission of such an offence;
(ii) the order “restrains ... all persons, from dealing with property”; and
(d) the Solicitor-General is entitled to the order he seeks.
The international context
[23] The international background to the MACMA is twofold. One is the Harare Scheme (see Civil Aviation Authority of New Zealand v Heavylift Cargo Airlines Pty Ltd [2008] NZCA 76; [2008] 2 NZLR 391 at [18] – [19] (CA)). The other is the United Nations Model Treaty on Mutual Assistance in Criminal Matters (adopted by General Assembly Resolution 45/117 of 14 December 1990) to which the MACMA is New Zealand’s response. Like the OECD Model Tax Convention on Income and on Capital and s BH1 of the Income Tax Act 2004, which facilitate the negotiation of double tax agreements between states (see Avowal Administrative Attorneys Ltd v District Court at North Shore [2007] NZHC 817; [2008] 1 NZLR 675 at [19] (HC)), the UN Model Treaty and the MACMA respond to the outmoded rule of international law that one state will not assist another to enforce tax and penal measures.
[24] The Model Treaty states:
The General Assembly,
Bearing in mind the Milan Plan of Action adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and approved by the General Assembly in its resolution 40/32 of 29 November 1985,
Bearing in mind also the Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development and a New International Economic Order, principle 37 of which stipulates that the United Nations should prepare model instruments suitable for use as international and regional conventions and as guides for national implementing legislation,
Recalling resolution 1 of the Seventh Congress, an organized crime, in which Member States were urged, inter alia, to increase their activity at the international level in order to combat organized crime, including, as appropriate, entering into bilateral treaties on extradition and mutual legal assistance,
Recalling also resolution 23 of the Seventh Congress, on criminal acts of a terrorist character, in which all States were called upon to take steps to strengthen co-operation particularly, inter alia, in the area of mutual legal assistance.
Recalling further the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
Acknowledging the valuable contributions to the development of a model treaty on mutual assistance in criminal matters that Governments, non-governmental organizations and individual experts have made, in particular the Government of Australia and the International Association of Penal Law
Gravely concerned about the escalation of crime, both national and transnational,
Convinced that the establishment of bilateral and multilateral arrangements for mutual assistance in criminal matters will greatly contribute to the development of more effective international co-operation for the control of criminality,
Conscious of the need to respect human dignity and recalling the rights conferred upon every person involved in criminal proceedings, as embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,
Recognising the importance of a model treaty on mutual assistance in criminal matters as an effective way of dealing with the complex aspects and serious consequences of crime, especially in its new forms and dimensions.
1. Adopts the Model Treaty on Mutual Assistance in Criminal Matters together with the Optional Protocol thereto, contained in the annex to the present resolution, as a useful framework that could be of assistance to States interested in negotiating and concluding bilateral agreements aimed at improving co-operation in matters of crime prevention and criminal justice;
2. Invites Members States, if they have not yet established treaty relations with other States in the matter of mutual assistance in criminal matters, or if they wish to revise existing treaty relations, to take into account, whenever doing so, the Model Treaty;
3. Urges all States to strengthen further international co-operation and mutual assistance in criminal justice;
4. Requests the Secretary-General to bring the present resolution, with the Model Treaty and the Optional Protocol thereto, to the attention of Governments;
5. Urges Member States to inform the Secretary-General periodically of efforts undertaken to establish mutual assistance arrangements in criminal matters;
6. Requests the Committee on Crime Prevention and Control to review periodically the progress attained in this field;
7. Also requests the Committee on Crime Prevention and Control, where requested to provide guidance and assistance to Member States in the development of legislation which would enable giving effect to the obligations which will be contained in such treaties as are to be negotiated on the basis of the Model Treaty;
8. Invites Member States, on request, to make available to the Secretary-General the provisions of their legislation on mutual assistance in criminal matters so that these may be made available to those Member States desiring to enact or further develop legislation in this field.
(Italics in original.)
[25] The MACMA’s enactment to implement the Treaty recalls an observation in Avowal at [21]:
A regime of obstruction has been replaced by one containing a large element of cross-border cooperation.
As was stated in A Ltd v Director of the Serious Fraud Office HC AK CIV-2005-404-6833 28 March 2007 at [113]:
... New Zealand accepts responsibility as a member of the world community to promote and maintain the rule of law internationally.
The MACMA is to be construed and applied in that light.
The character of a foreign restraining order and of a registered order
[26] It is common ground that to be enforceable the Polish order must be a “foreign restraining order” as defined in s 2(1). It must be an order made by judicial authority in respect of benefits that may have been derived from the commission of an offence that “restrains a particular person, or all persons, from dealing with the property”. Once registered it is enforceable as if made pursuant to the PCA, rather than taking effect as a stand alone judgment. By ss 66B(1)(a) and 66C of the PCA, the Official Assignee takes custody and control of the property on further order of the Court, that is in both substance and effect a seizure.
[27] The fact that the foreign order may be more extensive than a domestic order made in a wholly New Zealand context does not lead to an “odd result” (see this Court’s previous judgment at [47]: [14] above). That is because by s 57(3) of the MACMA:
... a foreign restraining order registered in accordance with section 56 of this Act has effect, and may be enforced, as if it were a restraining order made by the High Court under th[e PCA] ... .
That means any purportedly wider operation of the foreign order than is permissible under the PCA, such as the “compulsory mortgage” ([4] above) gets stripped away: as a New Zealand PCA order it is confined to the scope of such an order under New Zealand law.
The Public Prosecutor’s order nisi
[28] What we have called the order nisi made by the Public Prosecutor included the following terms:
Renata Orlowska, public prosecutor of the District Public Prosecutor’s Office in Kielce, in the matter against Slawomir Bujak,
decided:
to amend [an earlier decision in imposing security on property] in the following way:
I. To secure against the property of suspect Slawomir Bujak:
1) the fine at a maximum of 720,000 zlotys, which he is likely to be sentenced to;
2) the claim for repairing property damages at 3,877,274.77 zlotys.
II. To secure the penalties and claims by:
Having recounted the conduct giving rise to the charges against the respondent, she recited:
Currently, Slawomir Bujak owns in New Zealand a house worth over 400,000 New Zealand dollars and shares in four companies and he holds private bank accounts with various banks. It is undisputable that the suspect has used the money he brought to New Zealand on 1st June 1999 as the base for multiplying his property.
The Polish Court’s order absolute
[29] The Polish Court on 26 June 2006 made the order absolute. It decided to:
I. grant the enforcement clause to the decision by the District Public Prosecutor in Kielce as of 23rd June 2006 (file reference number V Ds. 23/99/S) to secure the fine which suspect Slawomir Bujak is likely to be sentenced to and claims for repairing property damages by:
II. award payment by Slawomir Bujak of a fee at 50 zlotys for granting the enforcement clause.
[30] The Court gave reasons as follows:
The District Public Prosecutor brought a motion for granting the enforcement clause to the decision to impose security on property in the matter, reference number V Ds. 23/99/S. The motion can be reasonably granted. [There follows detailed references to the relevant section of the Polish Codes] enforcement is made on the basis of an enforcement title, which is an enforcement title with an enforcement clause. An enforcement title can be inter alia a decision to compose security on property. Consequently, the decision by the Public Prosecutor which this motion concerns constitutes an enforcement title for which an enforcement clause is herewith granted. Considering the circumstances, it had to be awarded as first and above written in compliance with the regulations referred to above.
Comment on the High Court decision
[31] We have noted that this Court was not initially satisfied that the Polish order was shown to be a “foreign restraining order” within the meaning of the MACMA. The further evidence of the Public Prosecutor satisfied Clifford J her decision would have fallen within the definition of “foreign restraining order”. But he was not satisfied that the Solicitor-General had established that the Polish Court had made its decision “in respect of benefits derived” so as to fall within that definition. He declined to act on her evidence that it had done so.
[32] We disagree with the High Court’s approach and decision. First, as Mr Pike submitted, the deposition was part of the material supplied by representatives of the Republic of Poland through diplomatic channels to the Attorney-General of New Zealand. Jennings and Watts (eds) Oppenheim’s International Law: Volume 1 Peace (9ed 1996) states at 452 – 453:
The Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States, adopted by the
General
Assembly in 1970, proclaimed the duty of states to cooperate with one
another in accordance with the Charter, and elaborated that
principle in the
following terms:
States have the duty to co-operate with one another, irrespective of the
differences in their political, economic and social systems,
in the various
spheres of international relations, in order to maintain international peace and
security and to promote international
economic stability and progress, the
general welfare of nations and international co-operation... .
To this end:
(a) States shall co-operate with other States in the maintenance of international peace and security;
...
In practice states cooperate with one another extensively.
[33] Domestic law is presumed to conform with international obligations. We are satisfied that the MACMA is to be construed as requiring New Zealand Courts to accord the same respect to requests from foreign countries as we would expect them to accord to us.
[34] Secondly, the Public Prosecutor was in part the maker of the Polish order. She explained in her deposition:
- The enforcement of decisions to seize assets takes place in the manner specified in the Polish Code of Civil Procedure...
...
...
...
[35] Thirdly, as is stated in Broom’s Legal Maxims (10ed 1939) at 642:
[W]here acts are of an official nature ... a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium – everything is presumed to be rightly and duly performed until the contrary is shown.
Broom gives as an illustration of the maxim: “[t]hat a man, in fact acting in a public capacity, was properly appointed and was duly authorised so to act”: at 642. Eleven authorities are cited in support.
[36] Finally, there is no evidence to contradict what the Public Prosecutor has said. We are satisfied that the New Zealand Courts should act upon her evidence.
[37] That evidence establishes what we have called the order nisi and order absolute phases of the same process, the former performed by the Public Prosecutor and the latter by the Polish Court. From Clifford J’s conclusion - that had the Public Prosecutor been the judge her decision would have fallen within the definition of “foreign restraining order” - it must follow that the decision of the Polish Court, making that order absolute or enforceable falls equally within that definition.
[38] As a result of our acceptance of the Public Prosecutor’s evidence, the conditions of the definition of the “foreign restraining order” in s 2(1) of the MACMA are clearly satisfied. A Polish order was made under the law of Poland; and the order absolute was made by a court. It may indeed be, although it is unnecessary for us to determine the point, that the Public Prosecutor’s order nisi was made by a “judicial authority” within the meaning of the definition.
[39] It is clear from the original application that there is substantial evidence that the respondent committed a relevant “serious offence” (that is, one punishable by imprisonment for a term of five years or more) and that the Polish order was in respect of:
- (a) property (the proceeds of the alleged offending) that is or may be tainted property in respect of an offence against the law of Poland; and
- (b) and constituted benefits that have or may have been derived by the respondent from the commission of such an offence;
being in each case the money brought by the respondent into New Zealand.
[40] The remaining element is that the Polish order should be one “that restrains a particular person, or all persons, from dealing with property”. We have said that whether the order is of that character is a question of fact for the New Zealand court to determine. We accept the Public Prosecutor’s evidence as to the nature and consequences of the Polish order.
Our approach
[41] Clifford J held that there was no relevant restraint; that the Polish order purported to operate as a “seizure of property” which is both different from a “restraint” and conduct falling outside the definition in s 2(1)(b) of the MACMA. But it is quite clear from the Public Prosecutor’s evidence that among the effects of the order is to freeze the property and prevent others from dealing with it until further order of the court. Whatever label may be attached to it, that is in point of fact a restraint. As we have noted is immaterial that the seizure authorised by the Polish order is more intrusive than a mere restraint: to the extent it constitutes a restraint it becomes an order under the PCA; insofar as it exceeds that character it is not given effect under New Zealand law.
[42] The same answer is to be given to the fact that the Polish orders nisi and absolute purport not only to freeze tainted property or benefits derived, which is authorised by s 55 of the MACMA, but also to act as security for a penalty, which is not. It is only in respect of the former and not the latter that the order under the PCA has effect.
[43] Clifford J relied upon decision of the Supreme Court of Victoria in DPP (Cth) v Peniche [1999] VSC 288; (1999) 106 A Crim R 438. Mandie J at first instance dismissed an application under the Mutual Assistance in Criminal Matters Act 1987 (Cth) on the grounds that it was not a “foreign restraining order”. The order, made by a federal prosecutor of the United Mexican States, had provided (see [8]):
Proceed to carry out the seizure of properties, corporations, bank accounts, vehicles, investments and other kinds of financing or stock exchange transactions which have been done through banking or stock exchange institutions, corporations or departments of the country of Australia; and generally resources rights and assets of any nature located in this territory in which Carlos Cabal Peniche ... is involved appearing as owner stockholder intermediary beneficiary.
[44] It referred to the art 181 of the Mexican Federal Court Code of Criminal Procedure:
The instruments of the crime as well as the objects derived or obtained from the same and those that may have traces of the crime or which could be related to it shall be seized, either they shall be confiscated, judicial seizure, or just bound over into the custody of any person so that they may not be altered, destroyed or concealed.
[45] Mandie J stated:
[9] In my opinion the order thus sought to be registered is not a foreign restraining order within the meaning of the Mutual Assistance in Criminal Matters Act because it does not in terms restrain a particular person or all persons from dealing with any property.
[10] I accept that an order that property be seized may have the consequence, by controlling possession, that it is more difficult for persons to deal with that property but clearly there is a real distinction between an order calling on appropriate authority to seize property and an order directly restraining a particular person or persons from dealing with the property.
[11] The concept of restraining a person from dealing with property is not as such concerned with obtaining the physical possession of property but rather with the disposition of the property or any interest in the property. Undoubtedly, the purpose of the law is to assist in the enforcement of foreign legislation in the criminal law area and undoubtedly the seizure of property is one way of preventing persons from dealing with that property or effectively dealing with it. But it seems to me that one cannot utilise either the purpose of the seizure order or the purpose of the legislation as a whole to extend what is otherwise a clear definition.
[12] It is necessary in applying the provisions of the Act, which after all has serious consequences, to be satisfied that the particular definition is in terms complied with and I do not think that it has been.
[13] I do not need to consider, indeed I think that it is beyond the province of the court to consider, whether Art 181 of the Mexican Federal Code of Criminal Procedure would authorise the making of a “foreign restraining order”. It is sufficient for the purposes of this application to say that in my view the order actually made does not fall within that definition.
[14] Accordingly, it seems to me that there is no alternative but to dismiss the application.
The decision was upheld on appeal: DPP (Cth) v Peniche [2000] VSCA 40.
[46] Clifford J stated:
[63] Mandie J’s reasoning is, in my judgment, persuasive. The ordinary and natural meaning of “seizure” is taking possession of property: R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at p406; Falkner v Gisborne District Council [1995] 3 NZLR 622 (HC) at p633. “Restrain”, on the other hand, connotes something less than a seizure, such as confining or limiting the use of property: Blacks Law Dictionary (8ed 2004) at p1340. The Oxford English Dictionary definition of “restrain” reinforces this connotation, giving as its first definition of the verb “restrain”: “To check, hold back, or prevent (a person or thing) from some course of action”. These defintions support Mandie J’s conclusion that “seize”, by virtue of its breadth, is not in this context synonymous with “restrain”.
[64] This conclusion is important. Parliament has authorised the registration of foreign forfeiture orders that confine or limit the use of property. It has not authorised the registration of orders that go a step further and, in their own terms, purport to seize property.
[65] Article 292 section 1 of the Polish Code of Penal Procedure (as translated) provides that “Securing of potential forfeiture of objects shall be conducted through seizure of moveable property, debt claims and other property rights and through imposing the ban on selling and encumbering real estate”. Related provisions include Article 295 section 1, Article 295 section 3 and Article 295 section 4 of the Polish Code of Penal Procedure and Article 747 of the Polish Code of Civil Procedure. As translated, these provisions, in line with Article 292 section 1, all refer to the “seizure” of property.
[47] Following that reasoning, Clifford J held that he could not properly conclude that the Polish order restrained, but did no more than restrain, the respondent’s real estate property and therefore concluded that the Solicitor-General had not made out his case.
[48] We have answered that argument at [41] – [42]. It overlooks that what matters is whether, in point of fact, the evidence satisfies the requirements of New Zealand law, as it plainly does. For similar reasons we respectfully disagree with the judgments in Peniche.
Decision
[49] It follows that the appeal must be allowed with costs. We order that the foreign restraining order issued by the Regional Court in Wloszczowa, 2nd Penal Department, Kiecle, Republic of Poland, against the respondent on 26 June 2006 be registered in New Zealand under the Mutual Assistance in Criminal Matters Act 1992.
Solicitors:
Crown Law Office, Wellington for Appellant
Cousins &
Associates, Christchurch for Respondent
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