Marwood v Commissioner of Police [2012] NZHC 872 (1 May 2012)

Last Updated: 11 May 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2012-463-79 [2012] NZHC 872

BETWEEN KARL LESLIE RAYMOND MARWOOD First Applicant

AND ERANA KING Second Applicant

AND THE COMMISSIONER OF POLICE Respondent

Hearing: 1 May 2012

Counsel: M Ryan for Applicants

C Macklin for Respondents

Judgment: 1 May 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, Rotorua

Counsel:

_{M Ryan, Auckland}

MARWOOD V THE COMMISSIONER OF POLICE HC ROT CIV 2012-463-79 [1 May 2012]

Introduction

[1] On 12 March 2012, in the High Court at Hamilton, examination orders were made against Mr Marwood and Ms King under s 107 of the Criminal Proceeds (Recovery) Act 2009 (the Act). The orders require each of them to attend at the Taupo police station to be examined on issues relating to their alleged involvement in the cultivation, sale and distribution of cannabis and any assets that have been acquired from such enterprises. Subsequently, the date of the examination was amended by consent. They are now scheduled to attend on 3 May 2012.

[2] Mr Ryan, for both Mr Marwood and Ms King, seeks an order setting aside the examination orders. He does so, primarily, on grounds of fairness. There is a significant admissibility issue (to which I shall return) that arises in the substantive application for a restraining order that has been brought in the current proceeding by the Commissioner of Police. Mr Marwood’s and Ms King’s position is that they should not be examined until after that admissibility question has been resolved.

[3] The other aspect of the hearing today has been the need to timetable the substantive restraining order application for a hearing as soon as practicable.

Background facts

[4] Mr Marwood was charged in early July 2010 with cultivating cannabis, possession of cannabis for supply and theft of electricity. Subsequent charges were brought involving sale and supply of cannabis. Those charges were reflected in an indictment filed by the Crown Solicitor at Rotorua, on or about 1 September 2010.

[5] Much of the evidence on which the charges were based was secured as a result of a search warrant executed at a property in Taupo, on 6 July 2010. For present purposes, it is unnecessary to go into detail. It is sufficient to say that items consistent with the cultivation and distribution of cannabis were located. After the search warrant had been executed, Mr Marwood was interviewed at the Taupo police station. Ms King, his partner, was also interviewed on the same day.

[6] Mr Marwood challenged the search warrant under which much of the evidence had been gathered. An application made by the Crown after notification of objections to have the evidence ruled admissible was heard by Judge Bouchier in the District Court at Rotorua. Her Honour ruled that the evidence had been improperly obtained. She found that the breach was not technical but unreasonable and thereby

infringed s 21 of the New Zealand Bill of Rights Act 1990.[1]

[7] Conducting the balancing exercise required by s 30(3) of the Evidence Act

2006, the Judge found in favour of exclusion of the evidence.[2] She went on to indicate that exclusion would also include evidence of admissions made by Mr Marwood to the Police in his subsequent interview.[3]

[8] Subsequently, Mr Marwood was discharged on the charges brought against him, on the basis that without the evidence that had been ruled inadmissible, the criminal charges could not proceed. A single charge brought against Ms King was withdrawn for the same reason.

Should the examination orders be set aside?

[9] The admissibility issue concerns the ability of the Commissioner of Police, on an application for a restraining order under the Act, to rely on evidence that has been declared inadmissible for the purpose of criminal proceedings. That is an issue that has not yet been considered or determined in New Zealand.

[10] The Commissioner’s position is that the exclusion applies solely to criminal proceedings and the scheme and purpose of the Act dictates its admission in relation to proceedings designed to prevent persons from accumulating wealth through crime. Nevertheless, the point is one which Mr Marwood and Ms King are entitled to have resolved. In saying that, I observe, as Mr Macklin, for the Commissioner, reminded

_{me, that s 30 of the Evidence Act does not extend to civil proceedings.}

[11] The question is whether in those circumstances it is appropriate for the examinations to proceed on 3 May 2012. I have reached the view that they should proceed, provided certain protections are in place. Those protections, in my view, follow as a matter of necessity and do not create any new rights. They involve the ability to challenge admissibility of evidence gathered at the examinations on the same basis as the challenge brought against the issue of the search warrant, the ability of Mr Marwood and Ms King to seek costs against the Commissioner in the event that their position is accepted in due course and the statutory prohibition of any

evidence given at examination being used for the purpose of criminal proceedings.[4]

All of those protect Mr Marwood’s and Ms King’s position.

[12] In addition the restraining application will be heard by a Judge sitting alone in this Court not by a jury. There will be no difficulty in a professional Judge putting to one side any evidence that is ruled inadmissible and determining the application solely on the basis of that which is.

[13] For those reasons, the application to set aside the examination order will be dismissed.

Observations: a jurisdictional point

[14] I make one further observation on the application to set aside the examination orders. A jurisdictional point was taken initially by Mr Macklin. That point was that there was no jurisdiction for this Court to revisit an examination order by way of variation or discharge. Support for that view can be found in Joseph Williams J judgment in Chanwai v Commissioner of Police.[5]

[15] In this case, the examination orders were made on a without notice basis. Such orders can customarily be revisited, particularly if there are allegations of misrepresentation of facts or material non-disclosure. With respect, I have reservations about the approach taken by Joseph Williams J but it is unnecessary for

_{me to determine the point in the context of this particular case.}

[16] The concern I have is heightened by Asher J’s views, expressed in Commissioner of Police v Burgess,[6] in which he held there was a general discretion for a Judge to refuse to make an examination order notwithstanding the terms of ss

106 and 107 of the Act. That said, the jurisdictional point will need to be considered on another day.

Trial directions

[17] In relation to the substantive proceeding, I have canvassed with counsel the best way to have that readied for hearing.

[18] Provided any evidence given by Mr Marwood and Ms King in response to matters raised as a result of information gathered from executing the search warrant, their initial interview by Police and the examinations to be conducted on 3 May 2012 are treated in the same way (namely, evidence is admitted provisionally subject to the general admissibility argument), there is no objection to affidavits being filed. As I have said, the Judge who hears the application will be able to put inadmissible evidence to one side.

[19] I propose to set the proceeding down for two days. That will enable argument to be undertaken on the admissibility issue first. If the Judge were able to make a ruling immediately, the balance of the case could be heard. Otherwise it would be necessary for the proceeding to be part-heard before that Judge while a decision was given.

[20] I make the following directions:

(a) Any further affidavit evidence in support of the Commissioner’s

application shall be filed and served on or before 29 June 2012.

(b) Any affidavit evidence in opposition shall be filed and served on or before 31 August 2012.

(c) The Commissioner shall compile, file and exchange a paginated and indexed bundle of documents, containing all documents to be referred to at the hearing, on or before 28 September 2012.

[21] The Registrar is directed to set the proceeding down for hearing for two days on the first available dates after 9 November 2012. A hearing date shall be allocated after consultation with counsel.

Result

[22] For those reasons, the application to set aside the examination orders is dismissed. Costs are reserved. Directions are made in respect of the substantive

_{restraining order application as set out in paras [20] and [21] above.}

P R Heath J

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[1] _{R v Marwood DC Rotorua CRI 2010-069-1318, 14 April 2011 (Judge Bouchier) at para [54].}
[2] _Ibid.
[3] Ibid, para [55].
[4] _{Criminal Proceeds (Recovery) Act 2009, s 165.}
[5] Chanwai v Commissioner of Police HC Rotorua CIV 2010-463-544, 31 March 2011.

[6] Commissioner of Police v Burgess [2011] 2 NZLR 703 (HC) at para [18].