The Solicitor-General of New Zealand v Max John Beckham v Pm Trustee Ltd v Jenny Maree Taylor

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 03 November 2011
• Court: High Court
• Date: 03 November 2011
• Docket Number: CIV 2009-404-001226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-001226

Under

the Proceeds of Crime Act 1991

Between

The Solicitor-General of New Zealand

Applicant

and

Max John Beckham

First Respondent

PM Trustee Limited

Second Respondent

Jenny Maree Taylor

Third Respondent

Appearances:

D G Johnstone for the Applicant

W McKean for the First Respondent

No appearances for the Second and Third Respondents

JUDGMENT OF Wylie J

This judgment was delivered by Justice Wylie on 18 February 2010 at 4:00pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

1 The first respondent, Mr Beckham is facing a number of charges. Some are due to be heard in the Whangarei District Court and others in the Auckland High Court. The charges which are to be heard in the Whangarei District Court can be broadly grouped as follows:

• a) kidnapping, commission of a crime with a firearm, demands with menaces, and assault with a weapon;

• b) possessing methamphetamine for sale or supply, cultivating cannabis, and unlawful possession of explosives; and

• c) conspiracy to pervert the course of justice.

The trial is set to commence in mid-March.

2 The legal firm of Webb Ross has been acting for Mr Beckham in relation to these various charges since August 2008 and it has sent invoices to Mr Beckham totalling $50,744.33 for work done during the period 4 September 2008 to 30 September 2009.

3 A number of Mr Beckham's assets are subject to two restraining orders both made under the Proceeds of Crime Act 1991. Mr Beckham has filed an application seeking to vary one of the restraining orders which is in place in respect of some of his property, so that his reasonable expenses in defending the criminal proceedings against him in the Whangarei District Court can be met out of the property included in that restraining order.

4 I heard the application on 10 February 2010. At that stage, I had before me an affidavit from Mr Beckham and an updating affidavit filed by Mr Abraham, who is a law clerk employed by Webb Ross. For the reasons set out in my minute of 10 February 2010, I gave Mr Beckham the opportunity to file a further affidavit or affidavits to better inform the Court as to his financial position. I have now received two further affidavits – one from a Mr G M Beckham who is Mr Beckham's son, and the other from a Ms J M Taylor who is Mr Beckham's partner. Ms Taylor is managing Mr Beckham's affairs because he is currently on remand in custody. I have also received a memorandum from counsel advising that further costs have been incurred in relation to the present application amounting to $12,437.04.

5 The Crown has advised that it does not intend to file any further evidence in reply to this material.

6 Neither party wished to be heard further in relation to the application. Accordingly, this judgment follows.

The restraining orders

7 The restraining order sought to be varied was made by French J on 16 July 2009. The following property was initially restrained:

• a) a 2007 Ford Territory motor vehicle, registration number DZM162;

• b) the property at 144 Midgley Road, Mangonui;

• c) the property at allotment 14 off Midgley Road, Mangonui;

• d) Apartment 1301, Vogel Apartments, Auckland City;

• e) the property at 24 Amreins Road, Henderson;

• f) a 2006 Ford Falcon motor vehicle, registration number B4DBOY; and

• g) a 2007 Ford Falcon motor vehicle, registration number GTP95.

8 By minute of 24 August 2009, Asher J extended the restraining order to include the sum of $865,720 in cash seized during various searches of Mr Beckham's properties. Further, he directed that two vehicles held by the Official Assignee – the Ford Territory (DZM162) and the Ford Falcon (B4DBOY) – be sold and that the proceeds be held on trust pending further orders of the Court. The orders were further amended by Randerson J on 14 September 2009. Mr Beckham's interest in Apartment 1301, Vogel Apartments, Auckland City was excluded from the order. The restraining order was extended by Venning J for a further period of six months as from 26 January 2010 by consent.

9 While the initial order has been amended on a number of occasions, and while various conditions have been imposed, to date, no condition has been imposed allowing for Mr Beckham to meet his reasonable expenses in defending the criminal proceedings he faces out of the restrained property. Such a condition can be imposed under s 42(2)(c) of the Act. The possibility of such a condition was raised before French J. Her Honour did not have any proper evidence before her and she indicated that if the issue was to be pursued, then the Court would require both proper evidence and an application.

Submissions

10 Mr McKean appearing for Mr Beckham sought that Mr Beckham be entitled to meet his reasonable expenses in defending the criminal proceedings against him in the Whangarei District Court out of the monies seized by the Police, which is subject to the restraining order. He submitted that Mr Beckham has little or no ability to meet his expenses out of property not subject to the restraining order.

11 In reliance on the decision in Solicitor-General v Panzer [2001] 1 NZLR 224 (HC) and on the Crown Solicitors Regulations 1994, Mr McKean submitted that Mr Beckham's reasonable legal fees can be calculated as follows:

• a) $46,394.95 (inclusive of GST and disbursements) for the period 4 September 2008 to 30 September 2009; and

• b) $12,437.04 (inclusive of GST and disbursements) for the period to 15 February 2010.

These fees have been calculated at a rate of $297 per hour (exclusive of GST), being 150 per cent of the senior hourly rate payable under reg 4 of the Crown Solicitors Regulations 1994. The amount detailed in a) is less than the actual fee charged to Mr Beckham.

12 Mr McKean also sought that provision be made for the future costs which will be incurred in preparing for and representing Mr Beckham at trial. He estimated that the trial may last up to three weeks and that preparation could take an additional 240 hours.

13 Mr Johnstone appearing for the Crown referred to the Court of Appeal judgment in Fong v Solicitor-General [2008] NZCA 472. He noted that that judgment obliges counsel for the Solicitor-General to make submissions, and to assist the Court so that it in turn can provide a full and reasoned decision.

14 Mr Johnstone's submission focused on three issues:

• a) First, he raised, albeit tentatively, an issue of jurisdiction. He noted that the Criminal Proceeds (Recovery) Act 2009 came into force on 1 December 2009, and that it repeals and replaces the regime under the 1991 Act. He referred to the transitional provisions in the new Act – in particular s 172. He submitted that there are difficulties with s 172, but accepted that the section should nevertheless be given a large and liberal interpretation to accord with its apparent intention – namely, that the Proceeds of Crime Act 1991 should be regarded as continuing in force for the purpose of determining applications for restraint, extensions of restraints, variations of restraints (including legal expenses awards), fresh restraining orders, and confiscation, subject only to a proceeding relating to the alleged criminal offending having been filed in reliance on the Proceeds of Crimes Act prior to 1 December 2010.

• b) Secondly, he questioned an aspect of the merits of the application. In reliance on s 42(3) of the Proceeds of Crime Act and the decision of Morris J in R v Jury HC New Plymouth M14/99, 11 April 2001, he submitted that on the evidence initially available to the Court, Mr Beckham had sufficient unrestrained assets, and he had failed to prove that he had explored all avenues or been unsuccessful in liquidating those unrestrained assets to cover his legal costs.

• c) Thirdly, he queried whether or not further preparation of some 240 hours for the trial will be necessary.

Analysis

15 I deal first with the jurisdiction point raised by Mr Johnstone.

16 I have considered s 172 of the Criminal Proceeds (Recovery) Act 2009. It provides as follows:

Despite section 171, the Proceeds of Crime Act 1991 continues in force for the purposes of —

• (a) continuing and completing any proceedings or other matter commenced under that Act before the commencement of this Act (including the making or enforcement of any order arising from those proceedings):

• (b) the exercise of any power or function under that Act in relation to any matter referred to in paragraph (a).

17 Applications under the 1991 Act were brought by way of originating or interlocutory application. Arguably there are no “proceedings”. Nevertheless, in my view, the wording in s 172 is wide enough to catch the application here in issue. First, the word “proceedings” is not defined in the new Act. There is no necessary reason why it should be given a technical meaning such as that contained in the High Court Rules. Secondly, and in any event, the application is made in relation to a “matter” commenced under the 1991 Act and it comes within the provisions of s 172(a). Were it otherwise, there would be no mechanism for dealing with orders made under the 1991 Act. I agree with Mr Johnstone that the words “any proceeding or other matter” in s 172(a) should be given a large and liberal interpretation in accordance with their apparent intention, and that applications in respect of orders made under the 1991 Act should...