The Commissioner of Police v Corless
| Jurisdiction | New Zealand |
| Judge | Brewer J |
| Judgment Date | 15 December 2011 |
| Date | 15 December 2011 |
| Court | High Court |
| Docket Number | CIV-2010-404-5585 |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2010-404-5585
In the Matter of various applications under the Criminal Proceeds (Recovery) Act 2009
R M A McCoubrey for Applicant
R Mansfield for Respondent
JUDGMENT OF Brewer J
In these proceedings the Commissioner of Police applies for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (“the Act”) in respect of assets belonging to Mr Corless or in which he is alleged to have an interest. The assets include two pieces of real estate, more than $83,000 in cash, funds seized from a number of bank accounts, and 12 motor vehicles. If the Commissioner is successful, Mr Corless will lose his interests in these assets. The Commissioner's application is scheduled to be heard on 27 February 2012.
Mr Corless is also the subject of criminal charges relating to the manufacture or attempted manufacture of methamphetamine. He is defending the charges. His trial is scheduled to commence on 28 May 2012.
By notice of interlocutory application dated 2 November 2011, Mr Corless applies for an order staying or adjourning the civil proceeding until after the final determination of the criminal charges. The Commissioner opposes.
Essentially, the contest in the civil proceeding is whether the property at hazard is tainted by, or acquired as a result of, the very same criminal conduct with which Mr Corless is charged in the criminal proceeding (or, at least, related or similar conduct).
If the civil proceeding precedes the criminal proceeding, Mr Corless will be, as Baragwanath J might say, between Scylla and Charybdis. 1 If he does not actively defend the civil proceeding, he will likely lose all his property. If he does actively defend the civil proceeding, he will place himself at greater risk in the criminal proceeding, as everything he says in the civil proceeding can be used to support the State's 2 case against him in the criminal proceeding.
The criminal proceeding brought by the State accuses Mr Corless of crimes. His name and his liberty are at risk. He is defending the charges. He is entitled to a fair trial and he has rights that are aimed at ensuring he gets one. Among these is what is broadly termed the right to silence. That is to say, the onus is on the State to prove the charges. Mr Corless cannot be compelled to speak to the State's investigators, to give evidence, to provide evidence, or to assist the State otherwise in discharging its onus. He is presumed to be innocent of the charges.
In the civil proceeding the State applies pursuant to a jurisdiction created by Parliament for orders which would deprive Mr Corless of property. The orders seek the forfeiture of tainted assets 3 and profits derived from significant criminal activity. 4 If the State satisfies its prerequisite onus then the burden would fall on Mr Corless to prove to the Court that the value of the profit asserted by the State is wrong. Mr Corless does not want to lose his property and accordingly he opposes the State's application. He is entitled to appear and to adduce evidence at the hearing of the application, 5 although he is under no legal compulsion to file a substantive defence or to produce evidence to rebut the Commissioner's claim. (Of course, if he does not put forward an opposition the Commissioner gains a clear run towards obtaining the civil forfeiture orders sought.)
Mr Corless has filed an affidavit setting out his (exculpatory) view of the situation. When the case goes to hearing Mr Corless can be compelled by the State to go into the witness box and be subjected, on oath, to cross-examination on the contents of his affidavit and on any other matter relevant to the issues the Court will have to decide. 6 Unless he abandons his opposition to the Commissioner's application, Mr Corless will have to answer the questions put to him, subject only to his right to refuse to answer questions that might incriminate him.
Everything Mr Corless says in the civil proceeding can be used as evidence against him in the criminal proceeding. Everything he says can also be used by the
State to found investigations to locate further evidence to be used against Mr Corless in the criminal proceeding.Mr Mansfield for Mr Corless submits that I should not allow the State to cause its civil proceeding to be heard ahead of the prosecution by the State in the criminal proceeding because:
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(a) it would prejudice Mr Corless's rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) in the criminal proceeding. The rights that he has in the criminal proceeding would be undermined by his participation in the civil proceeding; and
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(b) he would be constrained in his ability to participate in the civil proceeding by the knowledge that that participation could hurt him in the criminal proceeding.
Expanding upon the first ground, Mr Mansfield submits that the hearing of the substantive civil application prior to the resolution of the criminal matter against Mr Corless would occasion an abuse of criminal procedure and a breach of ss 23(4), 25(c), 25(d) and 27(1) of the NZBORA in that, by defending the civil proceedings prior to the criminal trial, any answers Mr Corless gives under cross-examination:
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(a) may provide the names of likely defence witnesses or helpful Crown witnesses;
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(b) are likely to disclose more evidence than Mr Corless would give during the criminal trial and to which the Crown would otherwise have no right to know, allowing the Crown the opportunity to prepare and respond to that evidence; and
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(c) will be accessible to the Police and admissible in the criminal proceeding.
Mr Mansfield relies heavily on the analysis of Asher J in Commissioner of Police v Burgess7 as to the proper application of s 5 of the NZBORA (justified limitations).
Mr Mansfield relies further on s 27(1) of the NZBORA, which affirms the right to the observance of the principles of natural justice. He submits, in reliance on Udomptun v Minister of Immigration, 8 that the object of s 27(1) is to ensure that those who exercise public authorities do so in a manner that is considered objectively “fair” to those who may be affected by their decisions. This Court's determination of the adjournment application should therefore be centred on the need for fairness in the proceedings.
Mr Mansfield accepts that Mr Corless is not under any legal compulsion in the civil proceeding to answer questions or to be cross-examined on his alleged criminal conduct. Nevertheless, the situation he faces gives him no reasonable option but to submit to cross-examination, which in turn undermines his rights in the criminal proceeding. This Court should, in fairness, grant the adjournment sought.
The Commissioner's grounds for opposing the interlocutory application, in summary form, are that:
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(a) hearing this proceeding before Mr Corless's criminal trial will not give rise to any violation of his rights under the New Zealand Bill of Rights Act 1990;
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(b) in fact, Mr Corless has chosen to take part in this proceeding by the filing of detailed evidence;
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(c) it is open to Mr Corless to stay silent for the balance of this proceeding, and he is not required to say anything (further); and
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(d) this proceeding is independent in both form and substance from any criminal prosecution.
Mr McCoubrey for the Commissioner submits, and I agree, that there is no right for a stay to be granted as of right, or even as a general rule, based on an extension of the criminal accused's “right to silence”. In response to Mr Mansfield, Mr McCoubrey submits that the proper approach to an application for an adjournment or stay is not found in an abstract appeal to fairness. Rather, the focus must be on the particular circumstances of the case. He submits that the primary question for the Court is: why should the civil proceeding not be heard in the normal way? The extent of any prejudice to the Commissioner or the respondent are just factors in the determination of that question.
Mr McCoubrey places emphasis on the fact that Mr Corless has chosen to oppose the Commissioner's application and has filed evidence which he swears to be the truth. Mr McCoubrey submits that the right for which Mr Corless now contends is an unfounded right not to have that evidence challenged at this stage. That can only be because he fears that it will be exposed that his account is not a truthful one.
In Mr McCoubrey's submission, the Commissioner, as applicant, is entitled to have this litigation proceed through the courts in the normal way. This proceeding is wholly independent of, and does not rely on, the criminal proceedings. Further, Parliament must be taken to have accepted that there will be parallel civil and criminal proceedings, without stating anywhere in the Act that the criminal proceedings should have priority. This can be inferred from s 15 (which provides that civil proceedings may proceed in the absence of corresponding criminal proceedings) and s 16 of the Act, which provides:
16 Quashing criminal proceedings does not impact on civil forfeiture
(1) Subsection (2) applies if criminal proceedings are commenced or pending or have been withdrawn or determined in respect of any significant criminal activity that is the basis for—
(a) an assets forfeiture order or a profit forfeiture order; or
(b) an application for an order of that kind.
(2) If this subsection applies, the order or application is not affected by the criminal...
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