Commissioner of Police v Robin Adrian Burgess and Llannys Gwen Burgess

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeO'Regan P
Judgment Date25 Sep 2012
Neutral Citation[2012] NZCA 436
Docket NumberCA448/2011

[2012] NZCA 436

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Ellen France and White JJ

CA448/2011

Between
Commissioner of Police
Appellant
and
Robin Adrian Burgess and Llannys Gwen Burgess
Respondents
Counsel:

D G Johnstone, R M A McCoubrey (26 April 2012 only) and M F Laracy (3 August 2012 only) for Appellant

A G Speed for Respondents

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL IN R v BURGESS CRI-2010-004-14161 . PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O'Regan P)

Appellant challenges jurisdiction
1

The Commissioner of Police appealed to this Court against a decision of Asher J dismissing an application for an examination order under the Criminal Proceeds (Recovery) Act 2009 (CPRA) against the respondents, Robin and Llannys Burgess. 1 The appeal was heard along with two others, Commissioner of Police v Wei and Commissioner of Police v Corless. A judgment was issued in relation to those matters on 27 June 2012. 2

2

During the course of the hearing we raised with counsel the question of this Court's jurisdiction to hear an appeal against a decision refusing to make an examination order. The jurisdictional issue did not arise in the Wei and Corless cases as they were appeals relating to civil proceedings (applications for forfeiture orders). 3 After the hearing, we issued a minute seeking further submissions on the point and asked that counsel for the Commissioner consult the Solicitor-General so that the Court was presented with the Crown's view.

3

A further hearing took place on 13 July 2012, at which we were told that the Commissioner needed further time to finalise his position. A further hearing took place on 3 August 2012, at which the Commissioner advanced submissions to the effect that this Court did not have jurisdiction to hear the appeal. Counsel for the respondents, Mr Speed, supported those submissions.

4

The upshot was, therefore, that the Commissioner, having appealed, challenged this Court's jurisdiction to hear the appeal. In those circumstances, we could simply dismiss the appeal on the basis that the appellant no longer advances an argument in support of it. However counsel for the Commissioner asked us to rule on the jurisdiction question and also to set out our views on the merits, because of the likelihood that the issues will arise again in future cases. We will accommodate that request. We will first set out and summarise the decision of Asher J to which the intended appeal relates and the relevant provisions of the CPRA.

Factual background and High Court decision
5

Mr and Mrs Burgess are facing receiving charges that were to be heard in a trial at the District Court in August 2011. The trial did not take place as scheduled and is now scheduled for November 2012. The Crown case is that Mr and Mrs Burgess were involved in an extensive commercial operation receiving large quantities of stolen gold jewellery, which they melted down and on-sold as gold.

6

In February 2011, the Commissioner applied for an examination order under ss 106 and 107 of the CPRA. Those sections empower a Judge to make an order requiring a person to attend before the Commissioner and answer questions with respect to any matter that the Commissioner has reason to believe may be relevant to the investigation of any proceedings under the CPRA, to supply any information specified in the notice and to produce for inspection any documents specified in the notice. An order may be made if a Judge is satisfied that the Commissioner has reasonable grounds to apply for the examination order.

7

Counsel for the Commissioner informed counsel for Mr and Mrs Burgess of the Commissioner's intention to apply for an examination order. The latter objected to the making of an order prior to the impending criminal trial, and wrote a letter to counsel for the Commissioner indicating that he wished to be heard. That letter was placed before the Court and Asher J directed that there be a hearing.

8

Asher J found that requiring Mr and Mrs Burgess to undergo an examination would adversely impact on their fair trial rights under s 25(a), (c) and (d) of the New Zealand Bill of Rights Act (the Bill of Rights). He considered whether the Burgess's rights under s 23(4) of the Bill of Rights might be breached, but ultimately did not resolve the point. He considered that the interference with the rights of Mr and Mrs Burgess would be significant, and not justified by the objective of assisting with the recovery of the proceeds of crime, particularly as restraining orders existed over their property and the trial was likely to be completed within four months (this period has now extended because the trial had to be deferred).

9

Counsel for Mr and Mrs Burgess, Mr Speed, told us that his objective in the High Court was not to resist the making of an examination order altogether, but rather to have the application for the order adjourned until after the criminal trial. In his decision, Asher J confirmed that he was satisfied that the Commissioner had reasonable grounds to apply for the examination order and indicated that he was inclined to adjourn the application. However, subsequent to the delivery of the High Court judgment, the Commissioner asked that the application be formally dismissed, so that the result of the High Court proceeding was a “judgment, decree, or order” of the High Court and thus appealable under s 66 of the Judicature Act 1908. There was no opposition to that request and Asher J made such an order. 4 The correctness of the assumption that the dismissal of the application is appealable under s 66 is now, itself, challenged.

Relevant provisions of the CPRA
10

Section 106 of the CPRA provides that the Commissioner may apply to a Judge for an examination order. Section 107( 1) and (3) govern the nature of examination orders that can be made by a Judge. In particular, s 107(3) provides that an examination order can require that a person attend before the Commissioner, and answer any questions with respect to any matter that the Commissioner has reason to believe may be relevant to an investigation being undertaken by the Commissioner under the CPRA or to any proceedings under the CPRA. It may also require that the person supply information or produce for inspection documents that are relevant to the investigation or proceedings under the CPRA. Section 152(1) of the CPRA provides that non-compliance with an examination order is a criminal offence.

11

The CPRA recognises that there can be an overlap between investigations under the CPRA and a criminal investigation that may lead to a criminal trial. While there is nothing to stop a question being asked pursuant to an examination order that may elicit a self-incriminating statement, s 165 of the CPRA provides that any such self-incriminating statement may be used in evidence only in a prosecution for perjury or for breach of the CPRA itself, particularly s 152(1).

Issues
12

We will deal with two issues.

13

The first is whether the decision of Asher J to dismiss the application for an examination order is a “judgment, decree, or order” in terms of s 66 of the Judicature Act. It is accepted that s 66 is the only possible source of appellate jurisdiction in the present case.

14

The second issue is whether Asher J was right to dismiss the application for an examination order. As already noted, the Judge initially indicated he would adjourn the application. He dismissed it only because the Commissioner (as applicant) asked him to. Given those circumstances, it is appropriate that we consider also whether the Judge would have been correct to adjourn the application until after the criminal trial of the respondents takes place.

Is there jurisdiction?
15

The submission that there is no jurisdiction to hear the appeal was supported by all parties, though, as mentioned earlier, the initial position taken by the Commissioner was that there was jurisdiction.

16

The question of jurisdiction turns entirely on whether an examination order made under s 107 of the CPRA is a civil proceeding or a criminal proceeding. If it is a civil proceeding, a right of appeal to this Court exists under s 66. If it is a criminal proceeding, there is no provision for appeal. 5 As mentioned earlier, the proceedings in Wei and Corless were clearly civil proceedings, being applications for forfeiture orders that are defined as civil proceedings by s 10(1) of the CPRA.

17

Section 10(1) of the CPRA provides that proceedings relating to any of the orders listed in that provision are civil proceedings. The list includes assets forfeiture orders and restraining orders. However, it does not include any of the

orders that can be made under Part 2, Subpart 7 of the CPRA, which deals with the investigative powers of the police under the CPRA. The orders which can be made under Subpart 7 are warrants to search for and seize evidence in property, production orders and examination orders.
18

Section 10(2) provides that certain proceedings under the CPRA are criminal proceedings, but it does not mention any of the orders that can be made under Subpart 7 either. So, while the CPRA makes it clear that certain proceedings are civil and certain others are criminal, it is enigmatically silent on the question of whether examination orders (and other orders under Subpart 7) are civil or criminal proceedings.

19

The absence of any reference to the orders under Subpart 7 in s 10(1) could be taken as an indication that there was no intention that applications for such orders would be treated as civil proceedings. But the fact that they are not mentioned in s 10(2) either, tends to support the...

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