Commissioner of Police v McGregor [2012] NZHC 3377 (12 December 2012)

Last Updated: 15 April 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-566 [2012] NZHC 3377

IN THE MATTER OF of an application pursuant to the Criminal

Proceeds (Recovery) Act 2009

BETWEEN THE COMMISSIONER OF POLICE Applicant

AND JOHN DARRELL MCGREGOR First Respondent

AND JENA MARGARET MCGREGOR Second Respondent

Hearing: 12 December 2012

(By way of telephone conference) Counsel: S N McKenzie for the Applicant Judgment: 12 December 2012

_{JUDGMENT OF FOGARTY J}

[1] The Court has before it an application for an interim order that a restraining order not lapse and to extend the duration of the restraining order.

[2] By way of background, this Court on 12 December 2011 ordered (Whata J) that a property at 12 Katrine Street, Otautau, be not disposed of or dealt with, other than pursuant to an order of this Court pending termination of an application for vesting under the Criminal Proceeds (Recovery) Act 2009.

[3] This order was based on s 26(2)(a) of the Criminal Proceeds (Recovery) Act

_2009.

COMMISSIONER OF POLICE V MCGREGOR & Anor HC INV CIV-2011-425-566 [12 December 2012]

[4] The property was, for the purposes of the Act, an instrument of crime, and

Whata J was satisfied, based on the evidence before him, that was so.

[5] Section 37(1) of the Act provides:

37 Duration of restraining orders and further orders

(1) A restraining order expires on the earlier of the following:

(a) the date that is the end of the period that is 1 year after the date on which the restraining order is made:

(b) the date of the making or declining of a forfeiture order associated with the same property.

[6] This is almost exactly one year since the making of the order. Section

37(1)(a) is qualified by subs (2). Section 37(2)(c) provides:

(2) Despite subsection (1),—

...

(c) if a restraining order relates to an instrument of crime and the circumstances in section 40 apply to it, the restraining order expires on the date specified in that section; and

...

[7] It is necessary to turn to s 40. Section 40(2) provides:

40 Duration of restraining order relating to instrument of crime in certain circumstances

...

(2) Subsection (3) applies if—

(a) a restraining order is made in reliance on—

(i) a person's conviction for a qualifying instrument forfeiture offence under section 26(2)(a) or the charging of a person with a qualifying instrument forfeiture offence; or

(ii) the proposed charging of a person with a qualifying instrument forfeiture offence under section 26(2)(b), and the person is, within the 48-hour period, charged with the offence or a related qualifying instrument forfeiture offence; and

(b)	eithe (i)	r of the following occurs: the charge is withdrawn and the person is not charged
		with a related qualifying instrument forfeiture offence by the time the charge is withdrawn:
	(ii)	the person is acquitted of the charge or the conviction is quashed and the person has not been charged with a related qualifying instrument forfeiture offence by the time of the acquittal or quashing.

[8] Section 40(2)(a)(i) applies. But s 40(2)(b) does not apply, therefore, subs (3), which would continue this restraining order, does not apply. Therefore, s 37(1)(a) does apply, as subs (2) of s 37 does not apply. For these reasons, I am satisfied that unless an order is made today the restraining order made by Whata J one year ago will expire.

[9] The grounds for the making of an interim order that the restraining order not lapse is that the applicant intends to apply to the Court for an order extending duration of the restraining order for a period of one year.

[10] This application is made without notice to the first and second respondents, and that is the reason why an interim order is made. There is an intention expressed in the document of applying for an order for a period of one year. The jurisdiction to extend the duration of any restraining order is contained in s 41(1), which provides:

41 Extending duration of restraining order

(1) If a court has made a restraining order, the applicant for that order may, before the restraining order expires, apply to that court to extend its duration.

[11] The power to make orders of less than one year is contained in s 41(2), which provides:

(2) If an application is made under subsection (1), the court may order that the operation of the restraining order be extended for a period not exceeding 1 year.

[12] Subsection (3) enables the duration to be extended more than once:

(3) The duration of a restraining order may be extended more than once under this section.

[13] For these reasons, I am satisfied there is the power to make the order sought.

[14] The grounds on which the order is sought are that the first respondent is awaiting trial, that the property is currently restrained, and it is necessary for the trial to be concluded prior to the Court considering whether to make an instrument forfeiture order.

[15] I am satisfied the grounds are made out. Accordingly, I will make an interim order extending the duration of the restraining order for a period of three calendar months from today, Friday 12 December 2012. I direct that the application is to be served on the first and second respondents, and set down for a first call one calendar month after service.

Solicitors:

Crown Solicitor, Invercargill