IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2024-409-61
[2024] NZHC 2591	

BETWEEN	COMMISSIONER OF POLICE
Applicant	
AND	MATTHEW JOHN LINTON
First Respondent	
AND	CALEB ANTHONY PASIONE CAFFERY
Second Respondent	
AND	ANDREW MICHAEL SMITH and DANIEL JAY BURGESS
Third Respondents	
AND	HAMISH LAWS and AMBER BAKER
Interested Parties	

Hearing:	1 July 2024	
Appearances:	K South and O J Welsh for the Applicant
A M S Williams and K N Stitely for the First Respondent	
Judgment:	9 September 2024	

JUDGMENT OF HARLAND J

Introduction

[1]	The Commissioner of Police (the Commissioner) has applied on notice for a restraining order in respect of cash totalling $24,267.10, located by the Police during two separate searches undertaken on 14 December 2022 and 25 April 2023 at an address occupied by the first respondent, Mr Linton. The application is made under the Criminal Proceeds (Recovery) Act 2009 (Criminal Proceeds Act).

COMMISSIONER OF POLICE v LINTON [2024] NZHC 2591 [9 September 2024]

[2]	Mr Linton opposes the application. He contends that the cash was seized by the Police in relation to criminal proceedings which were completed without a restraining order being applied for and, although he has requested its return, he submits the cash has been unlawfully held by the Police since 19 September 2023.

[3]	The Commissioner submits that the cash has been lawfully retained and should be the subject of a restraining order given that Mr Linton faces four charges of supplying methamphetamine,1 which were laid against him on 13 October 2023 but allege offending between 19 April and 1 May 2023. The Commissioner submits that the cash is either tainted property able to be restrained under s 24 of the Criminal Proceeds Act or it can be restrained under s 25 of the Criminal Proceeds Act on the basis that Mr Linton has benefited from significant criminal activity and he has an interest in the funds.

[4]	I have decided to grant the application. This judgment sets out my reasons for doing so.

Background

[5]	On 14 December 2022, the Police executed a search warrant at Mr Linton’s home address. Mr Linton was not present at his address when it was searched. A sum of $4,560 cash was found along with nine vials of anabolic steroids, pepper spray and
56.99 grams of cannabis.

[6]	Also in December 2022, the Police commenced an 11-month investigation codenamed Operation Italian Sky into the drug-dealing operations of the Tribesmen Motorcycle Club (the Tribesmen). Mr Linton is a senior patched member of the Tribesmen.

[7]	On 25 April 2023, Mr Linton was arrested in relation to the items located at his address on 14 December 2022, referred to in [5] above. His address was searched again, and more anabolic steroids were located along with a BB gun and $19,707.10 in cash. The cash was found in the master bedroom occupied by Mr Linton. The sum

1	Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.

of $1,550 was found in a bedside drawer and the remaining $18,157.10 was found in a black bag behind a chest of drawers.

[8]	Mr Linton was charged with possession of a prescription medicine without a reasonable excuse,2 possession of cannabis for the purpose of supply,3 and possession of a restricted weapon, namely pepper spray.4 He was also charged with possession of a medicine not in a container conforming to the requirements of the Medicines Act 19815 and failing to carry out obligations in relation to a computer search6 because he declined to provide the access code for his iPhone during the search on 25 April 2023.

[9]	Mr Linton first appeared on the five charges referred to above on 26 April 2023. On 17 May 2023, he entered not guilty pleas to all charges.

[10]	On 17 July 2023, the possession of cannabis for supply charge was amended to possession of cannabis7 and Mr Linton entered guilty pleas to that charge and the four other charges. He was remanded to 19 September 2023 for sentencing.

[11]	On 19 September 2023, Mr Linton was sentenced on all five charges to supervision for one year by Judge S J O’Driscoll. There was no order for forfeiture of the cash seized during the searches on 14 December 2022 or 25 April 2023 because the charges did not provide the Court with the power to grant forfeiture under the Misuse of Drugs Act 1975, the only drugs charge having been reduced from possession of cannabis for supply to one of possession of cannabis.

[12]	After the sentencing on 19 September 2023, the prosecuting sergeant sent an email to the detective in charge of Operation Italian Sky stating that, among other things, the cash would have to be returned to Mr Linton. It is not in dispute that the prosecuting sergeant would not have been aware of the investigations regarding Mr Linton or the Tribesmen at that time.

2	Medicines Act 1981, s 43; maximum penalty three months’ imprisonment.
3	Misuse of Drugs Act, s 6(1)(c) and (f); maximum penalty eight years’ imprisonment.
4	Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
5	Medicines Act, ss 46 and 78; maximum penalty three months’ imprisonment.
6	Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.
7	Misuse of Drugs Act, s 7(1)(a); maximum penalty three months’ imprisonment or $500 fine.

[13]	On 20 September 2023, Mr Linton requested the return of the cash totalling
$24,267.10, which had been seized by the Police during the searches at his address on 14 December 2022 and 25 April 2023.

[14]	On about 4 October 2023, the decision was made by the Police to retain the cash on the basis they considered it was liable to forfeiture while further enquiries continued. Detective Bull’s supplementary affidavit outlines that, at that stage, Operation Italian Sky was well advanced and included covert investigations into Mr Linton and other members of the Tribesmen. Detective Bull deposed that disclosure of the information contained in his first affidavit about the covert investigation, which appears to have terminated several weeks later in October 2023, would have prejudiced the investigation at that point.

[15]	On 13 October 2023, Mr Linton’s home address was again the subject of a search. Four separate amounts of cash were located during the search; $805 was located in Mr Linton’s wallet, $2,820 was found in his Land Rover motor vehicle,
$36,242.10 was found at his address and in a BMW vehicle, and $130,200 comprising two amounts of cash was located at a storage unit rented in Mr Linton’s name.

[16]	Following the search on 13 October 2023, Mr Linton was charged with the four charges of supplying methamphetamine8 and one charge of participating in an organised criminal group.9 Other members of the Tribesmen have been charged along with Mr Linton with similar offending. Mr Linton intends to defend the charges he faces, and he is currently remanded in custody. The charges are at an early stage of the trial process. A tentative trial date has been allocated for five weeks commencing on 16 February 2026.

[17]	Ms South provided a draft of the summary of facts that relates to the charges. The four charges of supplying methamphetamine involve a total amount of five ounces of methamphetamine (or approximately 141–142 grams), allegedly supplied to others between 19 April and 1 May 2023 on four specific occasions. If the matters contained

8	Misuse of Drugs Act, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.
9	Crimes Act 1961, s 98A.

in the summary of facts are established, the value of one ounce of methamphetamine at that time was between $8,500 and $9,000.

[18]	The charges relate to alleged agreements to supply an associate on three separate occasions with approximately one ounce of methamphetamine and on one other occasion with approximately two ounces of methamphetamine. As is revealed in the summary of facts, the success or otherwise of the charges is likely to rely heavily on data extracted from Mr Linton’s cell phone and conversations that were identified on Facebook Messenger between Mr Linton and the associate.

[19]	On one of the alleged occasions, the Crown contends that Mr Linton requested that the associate bring the cash from the supply to Mr Linton’s home address, being the address at which the search warrants in December 2022 and April 2023 were executed. This is the same address that was searched on 13 October 2023. Mr Linton has agreed that the cash located by the Police during the search on 13 October 2023 can be restrained under the Criminal Proceeds Act.

[20]	During Operation Italian Sky, a covert financial review and analysis of Mr Linton’s bank accounts and declared income was undertaken by a forensic accountant employed by the Police. The review period was from 26 October 2021 to 7 June 2023, a period of one year and seven months.

[21]	The Inland Revenue Department records reveal that Mr Linton declared gross income in 2021 and 2022 of $48,854.91, derived from Ministry of Social Development benefits and Accident Compensation Commission payments. During 2022 and 2023, Mr Linton also declared that he had received wages from Precision Solutions Ltd amounting to $41,030.14.

[22]	The preliminary financial analysis of Mr Linton’s bank records by the forensic accountant reveals that he operated a total of 10 separate bank accounts variously at Kiwibank, Westpac, ASB and BNZ. The banks records show that, over the one year and seven-month review period, Mr Linton received income of $853,539.07 but only
$88,106.46 of that income could be identified as coming from legitimate sources. The

accountant concluded that Mr Linton had therefore received $765,432.61 of unexplained income over the review period.

[23]	The forensic accountant’s analysis and conclusion that there is unexplained income could well be subject to challenge by Mr Linton later on in these proceedings.

The arguments

[24]	Ms South for the Commissioner submits that grounds exist for the making of a restraining order under either s 24 or s 25 of the Criminal Proceeds Act.

[25]	Mr Williams for Mr Linton submits that the property is being unlawfully held because it was seized by the Police in relation to criminal proceedings which were completed without a restraining order being applied for. As the property is unlawfully held, Mr Williams submits a restraining order should not be made in respect of it. This argument depends on the interpretation of ss 150 and 151 of the Search and Surveillance Act 2012.

[26]	Ms South, relying on Commissioner of Police v Browne,10 submits that the property was lawfully seized and lawfully retained as it was clearly contemplated for forfeiture. But, if the Court concludes that the property was at any stage retained unlawfully, Ms South, relying on Slessor v Commissioner of Police,11 submits that this does not justify declining the restraining order and returning the money to Mr Linton.

[27]	I first set out the basis upon which the Commissioner submits there are grounds for a restraining order to be made over the cash in issue. I then address Mr Linton’s argument about why he says the cash has been unlawfully retained by the Police.

The grounds advanced for making the order

[28]	The application by the Commissioner is made either under s 24 or 25 of the Criminal Procedure Act.

10	Commissioner of Police v Browne [2020] NZHC 484.
11	Slessor v Commissioner of Police [2023] NZCA 612.

The legal provisions

[29]	Section 24 of the Criminal Proceeds Act states:

24 Making restraining order relating to specific property that is potentially tainted

(1)	A court hearing an application for a restraining order relating to specific property may, if the court is satisfied it has reasonable grounds to believe that any property is tainted property, make an order that the property (restrained property)—

(a)	is not to be disposed of, or dealt with, other than is provided for in the restraining order; and

(b)	is to be under the Official Assignee’s custody and control.

(2)	A restraining order may be made under subsection (1) whether or not there is a respondent in relation to whom the restraining order relates.

[30]	“Tainted property” is defined in s 5 of the Criminal Proceeds Act as:

tainted property—

(a)	means any property that has, wholly or in part, been—

(i)	acquired as a result of significant criminal activity; or

(ii)	directly or indirectly derived from significant criminal activity; and

(b)	includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

[31]	“Significant criminal activity” is defined in s 6 of the Criminal Proceeds Act as follows:

6	Meaning of significant criminal activity

(1)	In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—

(a)	that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

(b)	from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.

(2)	A person is undertaking an activity of the kind described in subsection
(1) whether or not—

(a)	the person has been charged with or convicted of an offence in connection with the activity; or

(b)	the person has been acquitted of an offence in connection with the activity; or

(c)	the person’s conviction for an offence in connection with the activity has been quashed or set aside.

(3)	Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).

[32]	Section 25 of the Criminal Proceeds Act provides:

25 Making restraining order relating to all or part of respondent’s property

(1)	A court hearing an application for a restraining order relating to all or part of a respondent’s property may, if the court is satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity, make an order that the property it specifies in the order (restrained property)—

(a)	is not to be disposed of, or dealt with, other than is provided for in the restraining order; and

(b)	is to be under the Official Assignee’s custody and control.

(2)	A restraining order made under subsection (1) may relate to any of the following:

(a)	all of a respondent’s property (including property acquired after the making of the order):

(b)	specified parts of a respondent’s property:

(c)	all of a respondent’s property (including property acquired after the making of the order) other than specifically excluded property.

[33]	Restraining orders are temporary orders that require “reasonable grounds to believe” rather than “proof that the target has unlawfully benefitted from significant criminal activity”.12 They are holding devices of limited duration, designed to ensure the owner of the targeted property does not dispose of it until any outstanding forfeiture issues are finally determined.13

12	Vincent v Commissioner of Police [2013] NZCA 412 at [47].
13	Commissioner of Police v Vincent [2012] NZHC 2581 at [37].

Application under s 24

[34]	Ms South submitted that property may be tainted so long as there is a link, even if indirect, between it in whole or in part and the alleged significant criminal activity.14

[35]	The case for the Commissioner is that the Court can be satisfied that there are reasonable grounds to believe that the cash is tainted property because of:

(a)	the lack of any legitimate explanation for the presence of the cash;

(b)	Mr Linton’s association with the Tribesmen;

(c)	Mr Linton’s history of offending; and

(d)	the proximity of the cash to drugs.

 No legitimate explanation for the cash

[36]	Detective Bull’s supplementary affidavit includes, among other things, photographs of the cash seized during both searches.

[37]	In relation to the search in December 2022, the photographs reveal a bundle of cash secured by either one rubber band wound around the cash twice or two rubber bands. The property record sheet indicates that the sum of $4,560 comprised denominations of $20 notes. There is a photograph of the cash in the drawer on top of what appears to be a sweatshirt. There is also a photograph of a multi-currency counter. The photograph of the multi-currency counter does not appear to have been included as an item seized during the search according to the property record sheet.

[38]	In relation to the property seized during the search undertaken on 25 April 2023, the property record sheet indicates that the first amount of cash seized amounted to $1,550 comprising 16 x $50 notes, 37 x $20 notes and one $10 note. This cash does not appear to be secured by way of rubber bands. The sum of $18,150.10 is referred to in the property record sheet as being uncounted but over $10,000.

14	Criminal Proceeds Act, s 5.

[39]	The summary of facts (for resolution) presented in the District Court at sentencing on 19 September 2023 does not refer to the larger sum of cash, rather, it only refers to the cash located in the bedroom drawers amounting to $4,560. Although the summary of facts refers to forfeiture being sought for the cash, a sheet completed by the prosecutor indicated as follows: “No forfeiture of cash—charge does not reflect proceeds of crime”.

[40]	Then there is the email from the prosecuting sergeant on 19 September 2023 after the hearing which said the following:

… However the cash could not be subject to an order for forfeiture as the charge of possession of cannabis in the simpliciter has no nexus to cash being proceeds of crime. … As such, the cash … will have to be returned to Mr Linton.

[41]	Ms South submitted that there was a lack of any legitimate explanation for the presence of the cash but there is nothing to indicate in the summary of facts that an explanation for its presence was sought, nor is there anything in the sentencing notes of Judge O’Driscoll on 19 September 2023 addressing this topic.

 Previous convictions

[42]	As to Mr Linton’s association with the Tribesmen and his previous history of offending, there is no challenge to those matters of fact. Mr Linton has convictions for drug-relating offending, including:

(a)	a conviction for possession of class B drugs, for which he was sentenced on 14 June 2001 to one month of imprisonment;

(b)	two convictions on 12 July 2012, one for the supply of methamphetamine and the other for conspiring to deal methamphetamine. On the latter charge, he was sentenced to a term of five years 11 months’ imprisonment;

(c)	two convictions on 15 June 2015, one for possessing methamphetamine and the other for possessing utensils for the use of methamphetamine. In respect of these charges, Mr Linton was sentenced to one month’ imprisonment; and

(d)	two convictions on 1 November 2017, one for possession of cannabis plant and another for supplying methamphetamine. On the latter charge, he was sentenced to a term of imprisonment for five years and six months with a non-parole period of two years and two months.

 Proximity of cash to drugs

[43]	Ms South also submitted that the proximity of the cash to drugs is a relevant consideration when assessing whether the cash is tainted property. The smaller amount of $4,560 was found at the same time as the cannabis head material was located and that the large amount of cash was located during the search on 25 April 2023. The current charges Mr Linton faces include allegations of supplying methamphetamine on 19 and 25 April 2023 in respect of which the Crown alleges he received at least $18,000.

 Finding on s 24

[44]	This Court is not required to make a finding on whether or not the property was tainted to make a restraining order—it need only be satisfied that reasonable grounds exist to believe the property is tainted.15 Whether or not those grounds are made out, even on the balance of probabilities, is not a matter for this Court today.16 But for the argument under ss 150 and 151 of the Search and Surveillance Act, for the reasons espoused by the Commissioner and upon review of the Police affidavits, I would be satisfied an order could be made under s 24 of the Act to restrain the property on the grounds it is tainted.

Application under s 25

[45]	As an alternative ground for the making of a restraining order, the Commissioner applies under s 25 of the Criminal Proceeds Act. This section enables the Court to make a restraining order in relation to all or part of Mr Linton’s property if it is satisfied it has reasonable grounds to believe that he has unlawfully benefited from significant criminal activity.

15	Commissioner of Police v Li [2014] NZHC 479 at [33].
16	At [33].

[46]	The Commissioner relies on Detective Bull’s supplementary affidavit where he sets out that, during a one year and seven month period, a total sum of $853,539.07 was deposited into Mr Linton’s bank accounts, of which only $88,106.46 could be identified as coming from legitimate sources. Ms South submitted that the Court can be satisfied that this unexplained income is the proceeds of significant criminal activity because:

(a)	Mr Linton has a history of engaging in significant criminal activity, including class A drug offending;

(b)	he has an ongoing association with the Tribesmen and is a senior patched member;

(c)	he is frequently found in possession of large amounts of cash with no lawful explanation; and

(d)	the volume of unexplained deposits without any legitimate explanation gives rise to an inference that it was derived unlawfully.

 Finding on s 25

[47]	But for the argument under ss 150 and 151 of the Search and Surveillance Act, I would be satisfied that there are reasonable grounds to believe that the unexplained income is the proceeds of significant criminal activity for the purposes of making a restraining order. I would reach this conclusion based on the volume of unexplained deposits which, at this stage of the proceedings, can legitimately give rise to an inference that it was derived unlawfully. But I would also take into account Mr Linton’s criminal history and his ongoing association with the Tribesmen in reaching that view and the number of large amounts of cash found at his home address during the various searches when drugs were also found to be present.

[48]	I would also conclude that there were grounds for the making of a restraining order under s 25 over the cash referred to above if I was satisfied that Mr Linton’s argument in opposition was incorrect. I now address that argument.

Was the cash seized on 14 December 2022 and 25 April 2023 unlawfully retained?

[49]	The nub of the argument for Mr Linton is that the cash has been unlawfully held since his sentencing on 19 September 2023 because, after these proceedings had ended, there was no continuing lawful basis for the Police to continue to hold it.

[50]	Mr Linton relies on ss 150 and 151 of the Search and Surveillance Act.

Statutory provisions

[51]	The property in question was seized under a search power conferred by the Search and Surveillance Act, meaning pt 4, subpt 6 of that Act applies.17

[52]	Section 150 of the Search and Surveillance Act states:

150	Certain things must be returned

(1)	A thing seized or produced must, if it is not required for investigative or evidential purposes, or unless it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be—

(a)	returned to its owner or to the person entitled to possession; or

…

(emphasis added)

[53]	Section 151 provides:

151	Custody of things seized or produced

(1)	A seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be held in the custody of the person who exercised the search power or that person’s employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance   with section 90(2) (except while it is being used in evidence or is in the custody of any court) until the first of the following occurs:

(a)	a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced:

17	Search and Surveillance Act, s 149.

(b)	the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise):

(c)	the thing is released under section 158 or 159:

(d)	if proceedings for an offence have not been commenced before the date that is 6 months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a court under section 153:

(e)	in any case where proceedings are brought,—

(i)	the withdrawal or dismissal of the proceedings; or

(ii)	subject to sections 156 and 159, the completion of the proceedings:

(f)	the seized or produced thing is disposed of under section 160.

(2)	Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—

(a)	in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or

(b)	in the case of any other event, in the manner required by this Act.

(3)	However, if the thing is seized or produced in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection
(1) has occurred in relation to each and every alleged offence.

(4)	This section is subject to sections 153 and 163.18 (emphasis added)
Submissions

 The Commissioner’s case

[54]	Ms South submitted both sets of cash were lawfully seized and held in accordance with ss 150 and 151 of the Search and Surveillance Act and that the money was “clearly contemplated for forfeiture”. She also noted that, following sentencing, the cash was held for less than a month before Mr Linton was found in possession of further cash and charged with further offending.

18	Sections 153 and 163 are not relevant to this argument.

[55]	Ms South referred to Commissioner of Police v Browne to support her argument. In that case, the Police retained the sum of $10,695 for a period of nearly three years before seeking its forfeiture.19 There, Churchman J held that ss 150 and 151 of the Search and Surveillance Act provided a basis for the retention of property that was liable to forfeiture:

[27]	Both of these sections expressly provide that if something seized is liable to forfeiture to the Crown, it may be retained. In those circumstances, the fact that a decision was made not to bring proceedings for an offence in respect of which the thing was seized or produced, is irrelevant. Likewise, the fact that six months has passed after the thing was seized does not render the holding of the object unlawful. It is not a precondition to seizure or forfeiture under the Criminal Proceeds (Recovery) Act 2009 (CPRA) that a criminal charge needs to be, or have been, laid in respect of the item seized.

[28]	The real issue for decision in this case is what the effect is of the applicant, once the $10,695 was seized, not promptly applying for a restraining order in respect of it but waiting nearly three years until 10 June 2019.

[29]	There does not seem to be anything in the CPRA that imposes a particular time limit by which the applicant must commence proceedings seeking a restraining order.

[30]	The Police appeared to have formed the view that the $10,695 seized from 41 Gibbs Drive on 22 June 2016 was tainted as being the proceeds of significant criminal activity at or about the time that it was seized.

(footnotes omitted).

[56]	Churchman J continued:

[33]	If the Police had, at any time after seizing the cash, formed the view that there was a credible alternative explanation for the presence of the cash that did not involve significant criminal activity, they would have been obliged to promptly return it to the respondents and, if they were unsure as to which of the two respondents actually owned it, given that both claimed ownership of the total sum, they could have applied to the District Court under s 154 of the Search and Surveillance Act 2012.

[34]	There was no delay following the seizure of the $24,850 on 16 March 2019 with the application for the restraining order being filed within three months of the seizure.

[57]	Ms South noted that Churchman J did not consider there was a time restriction on commencing proceedings under the Act. She submitted that, at the very least, the

19	Commissioner of Police v Browne, above n 10.

Police had six months following the determination of the criminal charges and the request for return to make an application to restrain the funds. She highlighted that, in this case, the Commissioner applied for a restraining order on 9 February 2024, some four months and 21 days following Mr Linton’s sentence.

 Mr Linton’s case

[58]	Mr Williams pointed to the email sent on 19 September 2023 from the prosecuting sergeant and submitted that the effect of ss 150 and 151 of the Search and Surveillance Act is that:

(a)	the sections apply to property seized under the Act;

(b)	s 150 requires property to be returned where it is not “liable for forfeiture”
— a term not defined in the legislation;

(c)	where property is required for investigative or evidential purposes, it must be returned immediately when one of the triggering events in s 151(1) occurs; and

(d)	the requirement to release the property under s 151 is subject to s 153, where the person holding seized property can apply for an extension of time, but s 153 only applies where no proceedings for an offence in respect of which the thing is relevant have been brought and the extension sought is to enable a determination to be made whether proceedings should be brought.

[59]	Mr Williams submitted there was no ability for the property to be forfeited when the criminal proceedings against Mr Linton ended, and neither was there an application for a restraining order or forfeiture order that suggested the property could be forfeited at that time. He submitted that the property in this case was not “liable to forfeiture” until this proceeding, namely the application for a restraining order in respect of the cash, was filed on 9 February 2024.

[60]	Mr Williams submitted that Commissioner of Police v Browne was wrongly decided, noting the difficulty with the effect of the judgment, that property could be

liable for forfeiture in terms of s 151 simply because the Police form that view.20 Further, Mr Williams argued that Churchman J found the property to be liable for forfeiture without considering that meaning of that phrase.21 Mr Williams submitted his interpretation, requiring outstanding proceedings or an outstanding application, should be preferred and, accordingly, the cash should have been returned on the day of sentencing.

[61]	Mr Williams submitted that even if the phrase “liable to forfeiture” is given a broader meaning, the application of s 151 would require the release of the cash as     s 151(1)(e)(ii) has been met because the proceedings in respect of which the cash was seized have been concluded. Mr Williams submitted s 151(2) required the release of the property immediately and s 153 does not apply as proceedings relevant to the cash had been finally determined.

[62]	Mr Williams accepted the point made by Churchman J that there is no time limit in which proceedings may be brought under the Criminal Proceeds Act but submitted this a peripheral point.

Discussion

[63]	Sections 150 and 151 of the Search and Surveillance Act clearly contemplate the return of property seized unless it is required for investigative or evidential purposes, or, relevantly, it is liable for forfeiture. The phrase “liable to forfeiture” is not defined in that Act. However, the primary purpose of the Criminal Proceeds Act under s 3 is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity or represents the value of a person’s unlawfully derived income.

[64]	Under s 5, “forfeited property” is defined as property that is “the subject of a forfeiture order” and “forfeiture order” is defined as “an assets forfeiture order, a profit forfeiture order or an instrument forfeiture order”, those orders being further defined in s 5. Forfeiture orders are different from restraining orders which, under s 5, are

20	Mathew Downs (ed) Adams on Criminal Law — Rights and Powers (online ed, Thomson Reuters) at [SS151.02A].
21	Mr Williams cites Browne, above n 10, at [27] in this submission.

defined to mean orders made under ss 24, 24A, 25 or 26 of the Criminal Proceeds Act. Restraining orders precede forfeiture orders, and so by that extension, although not within the definition of a “forfeiture order”, property subject to a restraining application or order is encompassed by “liable to forfeiture”.

[65]	The New Zealand Oxford Dictionary defines the adjective “liable” as being legally bound, subject to a tax or penalty, under an obligation, exposed or open to something undesirable, likely, or answerable. In my view, the meaning of “liable to forfeiture” in the Search and Surveillance Act is that the property concerned is exposed or open to forfeiture. That carries with it the idea that forfeiture is a possibility in the future.

[66]	The real question is, was an application for a restraining order required in relation to the cash seized during the December 2022 and April 2023 searches for it to be liable to forfeiture? In my view, it is not necessary an application for a restraining order be made for property to be liable to forfeiture. Although, in most situations, this course of action would be desirable to provide for the interests and efficient administration of justice, particularly as it concerns the property rights of the owners or interested parties, requiring an application would be inconsistent with both the Search and Surveillance Act and the Criminal Proceeds Act. My reasons for reaching this conclusion are as follows.

[67]	First, if an application was necessary, it would have to be made immediately following seizure to enable lawful retention under s 151, otherwise, unless required for investigative or evidential purposes or subject to proceedings, the property must be returned under s 150. Such a scenario could not have been envisioned by the Search and Surveillance Act. Time must be permitted after the seizure of property that is reasonably prima facie derived from significant criminal activity, but for which further enquiries are needed to determine the appropriate course of action. This may eventuate to be by way of a restraining or forfeiture application, the return of the property, or other manners of release as required by the Search and Surveillance Act.

[68]	The consequence of immediacy preventing such enquiries would be:

(a)	A superfluous number of applications would need to be made, including in relation to property that, upon further investigation, would not have required an application. This is contrary to the efficient administration of justice.

(b)	Or, alternatively, applications under the Criminal Proceeds Act would not be made in time and the seized property released under s 150, when that property may have been subject to a successful application for its forfeiture had the time been granted for further enquiries. This would fail to give effect to the Criminal Proceeds Act’s primary purpose to establish a regime for the forfeiture of property that has been derived from significant criminal activity, as well as the proposed purpose, described by the Supreme Court as giving “a clear and emphatic signal as to the legislative purpose”, to eliminate the chance for persons to profit from undertaking or being associated with such activities.22

[69]	Conversely, time to undertake further enquiries upon seizure means the subsequent application, if one is indeed made, will be supported by a stronger evidential foundation. A court is required to assess an application under the Criminal Proceeds Act on the evidence before it. To decline an application due to insufficient evidence resulting from restrictive temporal constraints would raise the same concerns regarding the legislative purpose as I identified at [68](b) above.

[70]	Secondly, Mr Williams’ submission that “the interpretation requiring outstanding proceedings or an outstanding application … should be preferred” is unworkable when considering it in the context of s 151(1)(d) of the Search and Surveillance Act, which provides for the return of property where there are no outstanding proceedings within six months of seizure and a request has been made for its return. The Police would not be obligated to return the property in those circumstances if the property was subject to an outstanding application under the Criminal Proceeds Act. Therefore, s 151(1)(d) provides that seized property can be lawfully retained for “up to six months” or longer if extended under s 153 before it

22	Criminal Proceeds Act, ss 5(1)(a) and (2)(a); and Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [12].

must be returned, even where there are “no outstanding proceedings or an outstanding application”.23 For s 151(1)(d) to apply at all, s 151 must be engaged. On Mr Williams’ argument, this can only be so if an application under the Criminal Proceeds Act has been made. However, that same application required to engage s 151 would negate the obligation to return property under s 151(1)(d). In turn, Parliament need not have included s 151(1)(d) nor stipulated a six-month grace period. That it did so is consistent with the discussion above about the necessity for time to make further enquiries following seizure to determine the appropriate course of action and the otherwise redundancy of s 151(1)(d). If, in the absence of proceedings having commenced, an application under the Criminal Proceeds Act is necessary to be liable to forfeiture, then the obligation to return property under s 151(1)(d) would be negated by the same application required to engage s 151 in the first place. In turn, Parliament need not have stipulated a six-month grace period. That it did so is consistent with the discussion above about the necessity for time to make further enquiries following seizure to determine the appropriate course of action and the otherwise redundancy of s 151(1)(d).

[71]	Finally, I have regard to ss 123A-123E of the Search and Surveillance Act.24 These sections provide for the seizure and retention of cash over the threshold amount25 for a maximum period, including the initial seven-day retention and applications for extension, of 63 days, where the Police have reasonable grounds to suspect it is not of lawful or legitimate derivation or is to be used for an unlawful or dishonest purpose and are not satisfied by the given explanation.26 Upon expiration of the “authorised holding period”, the cash must be returned unless subject to an outstanding application for restraint or forfeiture under the Criminal Proceeds Act.27 Therefore, Parliament has expressly placed a time limit on cash seized under s 123B for an application under the Criminal Proceeds Act to be made. It has not done so for property seized pursuant to any other conferred search warrant or search power under

23 Further, by implication of a request needing to have been made to trigger the six-month limitation, where there is no such request, Police can presumably retain the property for longer without commencing proceedings nor seeking an extension under s 153.
24 These provisions came into force on 5 April 2023. The cash seized in December 2022 and April 2023 are not subject to these provisions.
25	“Cash seizure threshold amount” defined in s 123A as NZ$10,000 or its equivalent.
26	Sections 123B-123E.
27	Section 123D.

the Search and Surveillance Act or as specified in column 2 of the schedule that is subject to subpt 6.28 In the absence of such an express time restriction, I infer one was not intended.

[72]	What is required is some evidential foundation to support the contention that the seized property will be subject to forfeiture. At the stage before an application for a restraining or forfeiture order is made, this is a practical matter for the Police to assess, but a determination the property will be subject to forfeiture must be based on a sufficiently compelling factual matrix. Once so determined, further enquiries if and as needed can be undertaken before making an application under the Criminal Proceeds Act or returning the property. In the absence of any evidential foundation, the property is not liable to forfeiture and must be dealt with in accordance with s 150. To this extent, I agree with the findings in Commissioner of Police v Browne that the Police’s view is sufficient to enable lawful retention.29

[73]	I am fortified in my view that the Police can determine whether seized property is liable to forfeiture because of the limits the Search and Surveillance Act places on that otherwise broad discretion. While the liability as determined by Police is what engages s 151 and permits lawful retention, the power to retain is only present until the first of the events specified in s 151(1) occurs. At that stage, the property must be returned unless an application under the Criminal Proceeds Act, which allows for the evidential foundation of the Police’s view to be assessed independently, is made.

[74]	In this respect, I accept Mr Williams’ submission that the interpretation of s 151 in Browne is irreconcilable with the clear wording of that provision.30 Further, I agree with Churchman J’s observation that the Criminal Proceeds Act does not impose a time limit by which a restraining order application may be brought, but the issue here is whether the property was lawfully retained. A restraining order may be brought irrespective of whether the property subject of that application is within Police custody

28 Section 149.
29 Commissioner of Police v Browne, above n 10, at [30]-[31] and [33].
30 At [26]-27]. Specifically, the finding that “a decision was made not to bring proceedings for an offence in respect of which the thing was seized or produced, is irrelevant” directly contradicts s 151(1)(a).

or not, but retention for the purpose of an order under the Criminal Proceeds Act is governed by s 151.31

[75]	Therefore, the cash seized on December 2022 and April 2023 was liable to forfeiture. However, once sentenced on 19 September 2023, the only proceedings against Mr Linton at that time were completed and the Police were required to return the cash pursuant to s 151(1)(e)(ii) and (2). By not doing so, and in the absence of an application under the Criminal Proceeds Act, the Police unlawfully retained the cash.

[76]	The obligation of Police to return property under s 151(1) is subject to s 151(3), which, repeated for convenience, provides:

(3) However, if the thing is seized… in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection (1) has occurred in relation to each and every alleged offence.

[77]	The methamphetamine and organised criminal group charges Mr Linton now faces were laid shortly following the search on 13 October 2023. The proceedings in relation to the methamphetamine charges were laid within six months of the cash being seized on 25 April 2023, but not in relation to the search undertaken on 14 December 2022. If I were to find the methamphetamine proceedings triggered s 151(3), this would mean the cash seized on 25 April 2023 has been lawfully retained since those charges were laid and would have required return only once the first of the s 151(1) specified events occurred in relation to those charges, in turn limiting the period of unlawful retention to a matter of weeks. This would not be so in respect of the cash seized on 14 December 2022 because a further court order under s 153 was not obtained, and thus that cash has been unlawfully retained for some four months and 21 days regardless of my finding concerning s 151(3).

[78]	Although there may well be a factual basis in this case to engage s 151(3), it is not appropriate to reach a determinative view about it given that it was not raised by counsel for the applicant as a basis to justify the retention of the cash. Neither counsel

31	Commissioner of Police v Browne, above n 10, at [29].

have been given the opportunity to consider whether s 151(3) applies in these circumstances or not. I therefore take the point no further.

Should the restraining order be made despite the unlawful retention of the cash?

Submissions

 The Commissioner’s case

[79]	Ms South’s alternative argument was that, if the Court concluded that the cash was at any stage retained unlawfully, this would not justify declining the restraining and returning the money to Mr Linton. She relied on Slessor v Commissioner of Police to support this argument.32 In that case, the High Court had made an order for forfeiture of cash which had been seized from Ms Slessor in November 2007, along with drugs. Ms Slessor had pleaded guilty to two charges of possessing methamphetamine for supply, and one charge each of supplying methamphetamine and possessing LSD for supply. She was sentenced in May 2011, but forfeiture of the cash was overlooked. The Police retained the cash and, at some point, deposited it into a trust account. No request was made for the cash to be returned.

[80]	On or around 27 May 2015, the Police decided not to return the cash Ms Slessor and not to pursue its forfeiture, however, an officer visited Ms Slessor in October 2020 to discuss the possible return of the cash. Ms Slessor was told that the cash would most likely be returned but this did not occur because, in April 2020, she was arrested in relation to the manufacture and supply of methamphetamine and pleaded guilty to a representative charge in relation to both. Ms Slessor was sentenced to 10 months’ home detention in August 2021, and, on 24 April 2022, the Commissioner filed an application seeking restraining and forfeiture orders over Ms Slessor’s property, including the cash seized in 2007.

[81]	The Court of Appeal concluded that the Police retention of the cash became unlawful on or about 27 May 2015,33 however, it concluded that the High Court was

32	Slessor v Commissioner of Police, above n 11.
33	At [41].

correct to order forfeiture of the cash on the basis that it was not contrary to the public interest.

[82]	In reaching this conclusion, the Court of Appeal observed that:34

(a)	there was no bad faith on the part of the Police—Ms Slessor did not seek return of the cash until Police raised the possibility in October 2020;

(b)	the cash was unquestionably derived from or in connection with drug dealing and Ms Slessor had no “moral claim” to it;

(c)	declining forfeiture would be disproportionate to the impropriety, which was modest and absent bad faith; and

(d)	the Commissioner’s claim for forfeiture of the cash was not reliance on the impropriety. Under the Act, the cash could be forfeited irrespective of whether it had been retained by Police so there was no material linkage between the impropriety and forfeiture.

[83]	Ms South submitted this case contains similar facts, noting that there was no bad faith on the part of the Police, the cash was likely derived from drug dealing, declining to restrain the cash would be disproportionate to the impropriety and restraint of the cash is not reliant on the impropriety.

[84]	Ms South also noted that Slessor involved the restraint of cash that was seized in respect of one set of criminal proceedings and later restrained following an investigation into further criminal activity. Ms South noted that the period of unlawful retention in this case, a period of four months and 21 days, pales in comparison to the almost seven years in Slessor that went by before any application for restraint was made.

[85]	Ms South submitted that the return of the cash, likely the proceeds of drug dealing, to Mr Linton, in these circumstances would be wholly disproportionate and not in the public interest. She submitted that argument is reinforced by the fact that,

34	At [51]–[55].

on a preliminary financial analysis, Mr Linton has received over $750,000 in unexplained income into his bank accounts so that, if the Commissioner subsequently proves that was the value of Mr Linton’s unlawful benefit, assets up to that value would be liable to forfeiture and the cash seized should form the pool of assets to be realised.35

 Mr Linton’s case

[86]	Mr Williams’ main argument was that because the retention of the cash was unlawful, the application for the restraining order should be declined. He submitted this Court has discretion under ss 24 and 25 of the Criminal Proceeds Act as to whether or not a restraining order is granted.36

[87]	Mr Williams submitted the Court’s discretion should be exercised to decline the application due to the serious breach of Mr Linton’s property rights. Mr Williams pointed to the evidence that Police knew they could no longer hold the cash(given the prosecuting sergeant’s email) but, nonetheless, a decision was made on 4 October 2023 to retain it. Mr Williams submitted the only possible interpretation of the evidence is that Police knew they did not have any legal basis to retain the cash but did so anyway. Mr Williams submitted that the return of the cash is the appropriate remedy on these facts.

[88]	Mr Williams submitted the impropriety that has taken place is relevant to the Court’s consideration as to whether a restraining order should be made. He too referred to Slessor v Commissioner of Police, where the Court of Appeal accepted that it was arguable that the illegality principle could be used to defend a forfeiture application,37 citing with approval the following passage from the United Kingdom’s Supreme Court in Patel v Mirza:38
The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do

35	Criminal Proceeds Act, s 55.
36	New Zealand Police v McIntyre HC Whangarei CRI-2010-488-21, 30 November 2010 at [74].
37	Slessor v Commissioner of Police, above n 11, at [49].
38	At [30] citing Patel v Mirza [2016] UKSC 42, [2017] AC 467 at [120].

not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather than by the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.

[89]	Mr Williams noted the boundaries of the illegality principle are not set.39 He referred to the following, articulated by Isac J in Woolley v Fonterra Co-Operative Group Ltd:40
Essentially, though, there are four formulations of the defence:

(a)	a reliance test, which looks at whether the person making the claim is obliged to rely on the illegal act;

(b)	the conscience approach, which focuses on whether allowing the claim would be an affront to the public conscience;

(c)	a causation approach, which recognises the need to look for the real and effective cause of loss; and

(d)	an approach centred on the need “for consistency, coherence of the law and integrity of the legal system”, namely, ensuring that if the law (criminal, contract and tort) says one thing is illegal, it does not then allow legal rights to be founded on that illegal conduct.

(footnotes omitted)

[90]	Mr Williams also referred to this Court’s power to decline to order forfeiture on the grounds of abuse of process.41

[91]	Mr Williams acknowledged that in Slessor, the Court of Appeal found that the High Court was correct to order forfeiture of cash because application of the illegality principle would be a disproportionate response to the Police illegality in retaining the cash. The impropriety in that case was described as “modest, and…absent bad

39	Leason v Attorney-General [2013] NZCA 509, [2014] 2 NZLR 224 at [115] and [132].
40	Woolley v Fonterra Co-operative Group Ltd [2021] NZHC 2690 at [484]
41	Marwood v Commissioner of Police, above n 22, at [37]; and Slessor v Commissioner of Police, above n 11, at [50].

faith”.42 Mr Williams submitted the impropriety in this case was more serious given the request to return the cash and the acknowledgement by the prosecuting sergeant that there was no ability to retain it.

[92]	Mr Williams submitted that refusing the application for a restraining order would be proportionate to the impropriety of the Police, noting that the amount claimed is a small proportion of the ultimate amount seized. He submitted it is in the public’s interest that coercive state powers are kept within their strict boundaries and the Court should not encourage abuse by allowing Police to exercise them with impunity.43

Discussion

[93]	The Court has a discretion to either grant an order under ss 24 or 25 of the Criminal Proceeds Act to restrain the cash or to refuse it.44 Having found already that the ss 24 and 25 thresholds are met, the only consideration weighing against exercising that discretion in favour of granting the order is the illegal retention of the cash.

[94]	Both counsel referred to Slessor v Commissioner of Police. In Slessor, the Court of Appeal referred to R v Collis as being one of the rare invocations of the illegality principle in New Zealand.45

[95]	In Collis, Police found $103,000 during a search of the defendant’s home. The defendant was charged with possession of cannabis for the purpose of supply, for “technical reasons”.46 Accordingly, the cash could not be forfeited under the Misuse of Drugs Act because it had not been received “in the course of or consequent upon” the offence convicted. The District Court held that the cash belonged to the defendant and should be returned to him. The Court of Appeal dismissed the appeal by a majority, with two points being considered as important:
(a)	that the Police “no longer [had] any right to hold it”47; and

42	Slessor v Commissioner of Police, above n 11, at [54].
43	Leason v Attorney-General, above n 39, at [92].
44	Criminal Proceeds Act, ss 24 and 25, “may”; and Police v McIntyre, above n 36, at [74].
45	R v Collis [1990] 2 NZLR 287 (CA).
46	R v Collis, above n 45, at 290.
47	At 293.

(b)	to have upheld a refusal to return the cash would result in its confiscation or forfeiture despite any statutory power to do so. Hardie-Boys and Casey JJ considered that the second point was fundamental.48

[96]	As Mr Williams notes, the Court of Appeal in Slessor also had regard to the illegality framework espoused by the Supreme Court of the United Kingdom in Patel v Mirza, noting its approach to the topic as “helpful, especially by its placement of proportionality at the heart of the inquiry”.49

[97]	In my view, the facts in Slessor are distinguishable from the facts in this case. In Slessor, the cash was overlooked meaning there was no bad faith on the part of the Police and Ms Slessor did not request return of the cash until Police raised this possibility with her years later. That is not the case here. First, Mr Linton sought the return of the cash by contacting the Police by phone on 20 September 2023. Secondly, and in my view, more importantly, the prosecuting sergeant had already, the day earlier, emailed Detective Lonsdale advising that the cash would need to be returned. Detective Bull deposed that “the decision was made to retain the two amounts of cash on the basis it was liable for forfeiture while further inquiries continued”.

[98]	The Search and Surveillance Act is clear that the powers for search and seizure of property, and retention of that property, are granted within carefully set boundaries. That Act provides pathways for Police to retain property in the absence of criminal proceedings, including seeking an extension under s 153 and there is the regime for restraining and forfeiture orders under the Criminal Proceeds Act.50 While I appreciate the Police’s position was a difficult one, requiring the balancing of its view that the earlier cash seized was likely tainted property with the need to maintain the integrity of the covert investigation, the ongoing investigation did not override that statutory obligation.

[99]	Further, I have found that the Police’s view is sufficient in and of itself to make seized property “liable to forfeiture”. But, in doing so, I emphasised that liability is

48	At 293.
49	Slessor v Commissioner of Police, above n 11, at [31].
50	That these pathways do not require criminal proceedings reflects the civil nature of proceedings under the Criminal Proceeds Act — see s 15 of that Act.

subject to the restrictions provided in s 151. If the provisions of the Search and Surveillance Act were such that there would be no limits on the duration the Police could view the cash as liable, and therefore retain the cash inevitably, I would have been inclined to find in favour of Mr Williams’ interpretation that an application under the Criminal Proceeds Act is required. It would be inconsistent with my finding to now accept that the Police’s view essentially justified the unlawful retention of the cash, irrespective of its required return under s 151(1)(e)(ii).

[100]	As to the duration of the unlawful retention, the fact that the basis of the Police’s continued retention of the cash was the need to ensure the ongoing Operation remained uncompromised leads me to conclude that the unlawful retention did not arise in circumstances where a claim of bad faith can be sustained. The events that followed the termination of the Operation, namely, the seizure of much larger sums of cash totalling more than $170,000 and the laying of Class A drug charges, provides a reasonable evidential basis to support the Police view that the earlier seized cash could be subject to forfeiture. The fact that the Operation was soon to be concluded also goes some way towards mitigating the level of impropriety present.

[101]	The question is whether declining the restraining order would be disproportionate to the impropriety. The strongest factor weighing in favour of exercising my discretion to grant the order is the strength of the evidence that the cash is the likely proceeds of drug dealing. I have already found that the threshold for orders under ss 24 and 25 has been met. Given this, declining the order at this stage would not be in the public interest as returning the cash to Mr Linton would enable him to profit from what are prima facie proceeds of crime, an issue which will be definitively determined upon a future forfeiture application. On the other hand, it is also in the public interest that the Police abide by the law. In weighing up those two competing facets of the public interest, an additional factor that I consider relevant to the assessment as to whether declining the restraining order is proportionate to the Police’s impropriety is that the cash seized in December 2022 and April 2023 amounts to approximately 10 per cent of the overall cash seized from Mr Linton. This supports a finding in Mr Linton’s favour.

[102]	However, whether the unlawful retention of the cash justifies returning the money to Mr Linton is ultimately a matter to be determined later. A restraining order is a “holding device”, effectively preserving property while the Police are gathering evidence to support an application for forfeiture.51 Restraining orders maintain the status quo pending the determination of any application for a final forfeiture order.52 The threshold that must be met for the granting of a restraining order is “reasonable grounds to believe”, rather than proof on the balance of probabilities, “the target has unlawfully benefited from significant criminal activity”.53 In this case, that threshold has been met.

[103]	In reaching this conclusion, I have not made a finding that Mr Linton has in fact unlawfully benefited from significant criminal activity. But, as I have said, the strongest factor in favour of granting this application is the evidential foundation that tends to indicate the cash seized in December 2022 and April 2023 are the proceeds of crime. This factor can only be explored fully in the context of an application for forfeiture.

Result

[104]	I grant the restraining order as set out in the application dated 9 February 2024 in relation to the property set out in paras 2(a) and (b) of the application.

Harland J
Solicitors:
Crown Solicitor’s Office, Christchurch A M S Williams, Barrister, Christchurch.

51	Vincent v Commissioner of Police, above n 13, at [45].
52	At [37].
53	Criminal Proceeds Act, ss 24, 25 and 55.