Commissioner of Police v Vousden [2018] NZHC 1057 (15 May 2018)

Last Updated: 25 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1682 [2018] NZHC 1057

BETWEEN	COMMISSIONER OF POLICE Applicant
AND	ALLISTER DAVID VOUSDEN Fourth Respondent

On the papers Appearances:	M Harborow and T Bellingham for Applicant Fourth Respondent, self-represented
Judgment:	15 May 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 May 2018 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v VOUSDEN [2018] NZHC 1057 [15 May 2018]

[1] The Commissioner has applied under the Criminal Proceeds (Recovery) Act 2009 (“the Act”) for the forfeiture of certain assets allegedly in the possession or control of the respondents, including the fourth respondent, Allister David Vousden.

[2] The Commissioner and Mr Vousden have reached agreement on terms of settlement of the Commissioner's application so far as it affects Mr Vousden, and the Court has been asked to approve the settlement under s 95 of the Act. Mr Vousden has dispensed with the services of his former counsel and wishes to resolve the matter without further legal assistance, acknowledging that he has had the opportunity to obtain advice.

[3] It is unnecessary, given the request for approval of the terms of settlement, for the Court to set out in detail the background to the proposed arrangements. It is sufficient to say that in February 2007, Mr Vousden and others faced trial in this Court in which Mr Vousden was charged with a number of money laundering offences. He was discharged by the trial Judge, Downs J, under s 147 of the Criminal Procedure Act 2011 (the discharges amounting to acquittals) and was acquitted by the jury on the charges which were not dismissed by the Judge.

[4] The Commissioner has alleged that, despite not being convicted of the criminal charges, Mr Vousden unlawfully benefited from significant criminal activity and that the Crown's case meets the civil standard of proof on a balance of probabilities. The allegations in support of the proceeding are that Mr Vousden in fact participated in the laundering of assets, namely various vehicles, and obtained a substantial benefit from doing so.

[5] The terms of settlement which the Court is asked to approve result in an outcome which includes the forfeiture of approximately $796,000 to the Crown. Mr Vousden’s agreement with the settlement terms necessarily includes an implied acknowledgement that there is merit in the Commissioner’s allegations. Mr Vousden also agrees in terms of the proposal that to the extent that he or his company, Ellerslie Collision Repairs Limited, are shown to have any interest in, or effective control over, any other property presently restrained in the proceeding, he will not oppose forfeiture.
[6] Section 95 of the Act provides as follows:

Approval of settlements (s 95)

95. High Court must approve settlement between Commissioner and other party

(1) The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2) A settlement does not bind the parties unless the High Court approves it.

(3) The High Court must approve the settlement if it is satisfied that it is consistent with—

(a) the purposes of this Act; and

(b) the overall interests of justice.

[7] I accept the submissions on behalf of the Commissioner that Parliament has empowered the Commissioner to enter into settlements with respondents regarding the forfeiture of assets to serve the public interest in bringing such proceedings to a prompt and inexpensive conclusion which appropriately recognises the cost and risk associated with contested litigation. The Court's supervision is intended by Parliament to ensure that settlements are consistent with the principles of the legislation and the overall interests of justice.¹

[8] In their joint memorandum, counsel for the Commissioner and Mr Vousden submit that the proposed settlement meets the requirements of s 95(3) in the following ways:

(1) There is evidence to support the Commissioner's allegation that Mr Vousden derived a substantial benefit from significant criminal activity, namely money laundering.

(2) The Commissioner has a strong case to show that 3/1 Old Wairoa Road is tainted property (so as to support an assets forfeiture order). The Commissioner has similar strong grounds in respect of most of the

¹ Section 95(3).

vehicles in schedule one (and where there is little evidence of taint the Commissioner considers those vehicles would be able to be realised to satisfy a profit forfeiture order against Mr Vousden).

(3) The Commissioner is prepared to adopt a pragmatic approach to settlement, considering he is not aware of any other major assets which would be applied towards a potential profit forfeiture order against Mr Vousden beyond the property restrained in this matter.

(4) Mr Vousden acknowledges that a contested hearing carries with it real risk, and will take some time to complete. He also recognises the mandatory nature of civil forfeiture orders, the statutory presumption in favour of the Commissioner's nominated profit forfeiture figure (under s 53 of the Act), and the civil standard of proof.

(5) There will be a considerable savings of time, resources and especially cost to both parties if the proceedings in respect of Mr Vousden can be resolved by consent, without the need for further litigation.

(6) Finally, all parties wish to have certainty and control as to the outcome of these matters.

I accept those submissions.

[9] Accordingly, I make the following orders by consent to give effect to the settlement which has been reached:

Orders ancillary to restraining orders under ss 33-35 of the Act:

(1) Under ss 33, 34 and 35 of the Act, the Official Assignee is directed to pay the sum of $10,000 to a bank account nominated by Mr Vousden from the proceeds of sale of the vehicles listed in schedule one to this memorandum.
(2) Under ss 33, 34 and 35 of the Act, the Official Assignee is directed to sell the restrained property at 3/1 Old Wairoa Road, Papakura, Auckland (the Property), registered proprietor Allister Vousden, as soon as practicable for its fair market value.

(3) For the purposes of effecting the sale of the Property, Guy Francis Sayers of Napier, Official Assignee, has the power to execute any deed or instrument in the name of Allister Vousden and to do anything necessary to give validity and operation to the deed or instrument;

(4) The Official Assignee is to deal with the proceeds of sale of the Property as follows:

(i) first, deduct his reasonable costs in effecting the sale;

(ii) second, pay Mr Vousden’s outstanding fines (in the vicinity of
$740); and

(iii) third, forfeit the net balance to the Crown in accordance with the assets forfeiture order in paragraph (e)(i) below.

Assets for forfeiture order under s 50(1) of the Act:

(5) The following property vests in the Crown absolutely and is to be under the Official Assignee's custody and control:

(i) the net sale proceeds of 3/1 Old Wairoa Road following the payments referred to in paragraph (d) above; and

(ii) all vehicles (or their proceeds of sale) listed in Schedule One to this judgment (except for the sum of $10,000 released to Mr Vousden as referred to in paragraph (a) above).

(6) The Commissioner shall not pursue an application for a profit forfeiture order against Mr Vousden personally.
(7) Costs will lie where they fall in relation to all matters.

[10] I thank counsel and Mr Vousden for their co-operation and assistance.

.............................................

Toogood J

Schedule One
Chevrolet Camaro Registration GGF788	Allister Vousden	Not yet located
Chevrolet Corvette Registration EYT318	Allister Vousden	Sold by Official Assignee
Holden Commodore Registration HEA282	Allister Vousden	Sold by Official Assignee
Chevrolet Silverado Registration FWD371	Allister Vousden	Not yet located
Ford Galaxie Registration DCF630	Ellerslie Collision Repairs Limited	Currently in custody of the Official Assignee
Toyota Lite Ace Van Registration HAQ648	Ellerslie Collision Repairs Limited	Sold by Official Assignee
Nissan Skyline Registration GBZ865	Allister Vousden	Sold by Official Assignee
Boat named 'Bada Bing' and trailer L137H	Allister Vousden	Sold by Official Assignee
Holden VT Commodore Registration JCA280	Allister Vousden	Sold by Official Assignee