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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2007-485-522
BETWEEN THE SOLICITOR-GENERAL OF NEW
ZEALAND
Applicant
AND SLAWOMIR RYSZARD BUJAK
Respondent
Hearing: 15 October 2007
Appearances: M Laracy & K E Salmond for Applicant
G M Illingworth QC for Respondent
Judgment: 16 November 2007
JUDGMENT OF CLIFFORD J
Introduction
[1] In R v Bujak [2007] NZCA 347, the Court of Appeal allowed Mr Bujak's
appeal against an ex parte order I had made registering on the application of the
Solicitor-General
a foreign restraining order issued by the Republic of Poland ("the
Polish order") in respect of property in New Zealand belonging
to Mr Bujak.
[2] In terms of process, the Court of Appeal held that I should not have made that
order ex parte, or at least
not without reserving leave for Mr Bujak to apply on short
notice to set that order aside.
[3] The Court also considered the
more substantive question of whether the
Polish order came within the definition of a "foreign restraining order" so as to be
registrable
in New Zealand. On the basis of matters put to it in respect of relevant
THE SOLICITOR-GENERAL OF NEW ZEALAND V BUJAK HC WN CIV-2007-485-522
16 November
2007
provisions of the Proceeds of Crime Act 1991 ("PCA") and the Mutual Assistance in
Criminal Matters Act 1992 ("MACMA"),
the Court concluded the Polish order was,
on its face, outside the statutory definition of a "foreign restraining order".
[4]
Rather than setting aside my order, the Court of Appeal ordered that the
proceeding was to be remitted to the High Court, which
was to determine the
substantive question of whether the order I made should, after reconsideration, be
registered. In delivering
its judgment the Court noted:
It will be open to the parties to address [in the High Court] whether the
particular
Polish foreign order is or is not within the definition in the New
Zealand Mutual Assistance in Criminal Matters Act 1992.
Nothing we have
said in this judgment is intended to preclude any other relevant authorities or
affidavit material
being placed before the High Court.
[5] Those proceedings, coincidentally, came before me to be set down for
hearing. Neither
party appeared when the matter was called. With the parties'
agreement, a hearing date before me was subsequently arranged.
[6]
The substantive question now at issue the procedural issues identified by
the Court of Appeal having been resolved by the fact
of this hearing is whether the
order I made should be set aside or whether the Solicitor-General can establish that
the Polish
order is registrable under MACMA, and that therefore the order I made
should be continued.
The Court of Appeal's decision
[7]
In the course of its decision, the Court of Appeal commented on two aspects
of the Polish order.
[8] First the Court noted,
at [41], its agreement with Mr Illingworth's submission
that, on their face, the Polish statutory provisions were significantly different
from
the position under the PCA. The Polish provisions appeared to indicate that, under
Polish law, where an accused person faces
even the possibility of being fined or
required to pay damages, the Courts had authority to impose a charge on the property
of
the accused, in advance, to ensure that the accused did not avoid the potential
obligations by disposing of property.
[9] With
reference to an earlier comment (at [38]), that the difficulty with the
Solicitor-General's application was that a "foreign restraining
order" could only be
made in respect of "tainted property" or "benefits" that had arisen from the
commission of an offence, the Court
then commented:
[42] As Mr Illingworth said, the critical distinction is that, under Polish
law, at least under
this provision, there appears to be no requirement for the
prosecution to establish any connection whatsoever between the
offences
alleged against the accused and the property to be secured by the restraining
order.
[10] On the basis
of that line of argument, a necessary precondition for
registration under MACMA, namely that the Polish order was a "foreign restraining
order", had not been met (at [43]).
[11] The Court of Appeal then referred to a second difficulty faced by the
Solicitor-General.
On its face, the Polish order provided for the seizure of Mr
Bujak's property in New Zealand. It was not, in Mr Illingworth's submission,
therefore a restraining
order at all.
[12] Responding to the Solicitor-General's argument that these were not issues for
the Courts, but for the Attorney-General,
the Court of Appeal found such a proposal
to be wrong in principle. The kinds of foreign restraining orders that might be
registered
had been specified by Parliament. That view, as set out in the statutory
definition of the term, had to be met.
[13] More generally,
at [47] the Court of Appeal commented:
Significantly, the view reached by the New Zealand Parliament as to the
reach
of restraining orders bears a real degree of conformity to the New
Zealand domestic Proceeds of Crimes legislation. In short,
in a general way
the New Zealand Parliament elected to give as much assistance in New
Zealand to overseas law enforcement
authorities as it would to New Zealand
authorities, but no more. For it would be a rather odd result if a foreign law
enforcement agency could get more by way of pre-conviction relief here
than could be had by a New Zealand agency.
[14]
In remitting the question of the registrability of the Polish order to the High
Court, the Court of Appeal therefore can be
seen as having identified two specific,
and one more general, concern(s).
[15] The two specific issues were those of:
a) The links between the alleged offence, the benefits said to have been
derived and the property in
respect of which the order was sought; and
b) The question of whether the Polish order could properly by
reference to its terms which provide for the seizure of Mr Bujak's
property be characterised as a foreign
restraining order.
[16] More generally, the Court of Appeal concluded that the New Zealand
Parliament had "elected to give
as much assistance in New Zealand to overseas law
enforcement authorities as it would to New Zealand authorities, but no more".
[17] It was essentially with reference to the framework provided by those views
that Mr Illingworth advanced his submissions
as to why the order I made should be
set aside. I propose to use that framework to consider those submissions, and the
arguments
made on behalf of the Solicitor-General in response.
[18] In doing so, it is appropriate to note that it is not contested
that, in terms of
s 55 of MACMA, a foreign country has requested the Attorney-General to make
arrangements for the enforcement of
a foreign order. It is also not contested that the
request is made in respect of "foreign serious offences" as defined in s 2(1)
of
MACMA. And it is not contested that the Attorney-General has authorised the
Solicitor-General in writing to make the application
which is now before the court.
The question is whether the order sought to be registered is a "foreign restraining
order".
[19]
It is also appropriate to note, at this point, that in her submissions Ms Laracy
acknowledged that although the hearing arose
from the application filed by Mr Bujak
to set aside the registration order of 2 April 2007, nevertheless in substance the Court
of Appeal had remitted the matter to the High Court for the High Court to determine
whether the Polish order was a "foreign restraining
order" as defined in s 2(1) of
MACMA. Therefore, in the intituling of the document filed by the Solicitor-
General,
the Solicitor-General was named as the applicant, and Ms Laracy accepted
the onus was on the Solicitor-General to satisfy this Court
that the Polish order was,
indeed, a "foreign restraining order".
Need for linkage or connection between alleged offence, property
in respect of
which restraining order sought and benefits derived
[20] A foreign restraining order is defined in s 2(1) of MACMA
to mean an order
made under the law of a foreign country by any Court or other judicial authority:
a) in respect of:
i) property that
is or may be tainted property in respect of an
offence against the law of that country; or
ii) benefits that have been derived, or may have been derived, by
a person from the commission of such
an offence; and
b) that restrains a particular person, or all persons, from dealing with
property.
[21] The terms of that definition provide the basis for the necessary inquiry as to
whether the Polish order is made "in respect
of" either property that is or may be
tainted or benefits that have been or may have been derived.
[22] The gist of Mr Illingworth's
submissions on this point were as follows:
a) The Polish order did not, on its face, apply as against property that
is
or may be tainted. Rather, it applied to the property generally of Mr
Bujak. This analysis of the
Polish order was not disputed by the
Solicitor-General. Accordingly, the first alternative meaning of
"foreign restraining order" was not available on the evidence.
b) As to the second alternative meaning, the Polish
order could not be
said to have been made in respect of benefits that had been or may
have been derived.
Polish law authorised the Courts to impose a
charge on any of the property of the accused to ensure that the
accused did not avoid the potential obligations imposed by Polish law
of being fined or being required to
pay damages. There was, in that
circumstance, no requirement for the property that was so charged to
represent the proceeds of a crime, nor was there any requirement to
show that the accused derived a benefit from
the commission of an
offence.
[23] It was Mr Illingworth's submission that the Polish legislation permitted
Poland's
courts to restrain the disposition of property simply to secure payment of a
fine or damages, whether or not the property was tainted
property and whether or not
the accused had derived any benefit from the commission of the alleged offence.
The elements of tainted
property or derived benefits, which were essential elements
under MACMA, were not components of the decision made by the Polish Court
when it made its restraining order on 26 June 2006.
[24] The Polish order was not, therefore, a restraining order as defined
in
MACMA.
[25] For the Solicitor-General, Ms Laracy's response to this submission was two-
fold.
[26] First, the class
of property against which restraining orders could be made
under MACMA was not limited to "tainted property", either in terms of
property
used to facilitate the commission of an offence, or property representing the proceeds
of an offence. Rather, where the
derivation of benefits was established to the
necessary standard, a foreign restraining order, like a domestic restraining order,
could be made against property generally of the defendant.
[27] In my view that submission is correct, and supported by the
statutory scheme.
[28] In terms of the PCA, of particular relevance are the provisions of s 43(1)(a)
and (b).
[29] Under
s 43(1)(a), where a restraining order is sought against specified
property of the defendant, the Court is not to make the order unless
it is satisfied
there are reasonable grounds for believing that the property is tainted property or that
the defendant derived a
benefit, directly or indirectly, from the commission of the
offence.
[30] On the other hand, under s 43(1)(b), where a restraining
order is sought
against all of the property of the defendant, the Court is not to make that order unless
satisfied there are reasonable
grounds for believing that the defendant derived a
benefit, directly or indirectly, from the commission of the offence concerned.
[31] The conclusion that a restraining order may, where
benefits have been
derived, be made against property generally of the defendant, is also supported by a
consideration of the circumstances
in which, subsequently, pecuniary penalty orders
may be made and the effect of such orders.
[32] This view of the property in
respect of which restraining orders may be made
is supported by the decision of Panckhurst J in Solicitor-General v Machirus &
Morell
HC Christchurch CRI-2005-409-000177 28 June 2007. There the issue was
whether a restraining order could be made in respect of the
proceeds of a sale of a
house. The house itself was tainted property, having been used to hide stolen
property. Justice Panckhurst
held that, after the mortgagee sale, the proceeds of the
house would not be tainted property, but that a restraining order was still
available
under s 43(1)(b). Relevantly, His Honour stated:
[25] As can be seen tainted property is effectively earmarked
as
susceptible to forfeiture because that property was used in the commission of
a serious offence, or represents the
proceeds of such an offence. It seems to
me that once the particular property is realised, the sum obtained (whether
the full sale price or net proceeds) is different property, and is not tainted.
[29] With reference to the making of
a restraining order to facilitate a
pecuniary penalty order following conviction, the Court must be satisfied
that
there are reasonable grounds for believing that the defendant derived
benefits from the commission of serious offences: s
43(1)(b). I think it is
important to recognise that, unlike tainted property where a nexus between
the offending
and the property to be restrained must be demonstrated, no
such nexus is required for the making of a restraining order based
on benefits
derived by the defendant. Evidence of a benefit, or benefits, and of the
existence of property owned or
controlled by the defendant, is all that is
necessary. Moreover, "all of the property of the defendant" may be
restrained,
where the test for restraint is satisfied: s 43(2).
[33] In my view, and as submitted by Ms Laracy, the need for a power to restrain
such "untainted" benefits is appropriate, given the need of the Court, at a later stage,
to be able in appropriate cases to impose
a pecuniary penalty order. As the Court of
Appeal observed in R v Wallace & Wallace CA287/00, CA288/00 2 April 2001:
The
Act clearly contemplates the property which is not tainted by the
offending may be used to meet a pecuniary penalty order.
[34] I think similar considerations apply as regards the definition of foreign
restraining orders in MACMA. Where, in that Act,
those orders are defined in the
alternative as being orders "in respect of benefits that have been derived, or may
have been derived,
by a person from the commission of a relevant offence", the use
of the words "in respect of" directs the Court to a consideration
as to whether or not
benefits have been or may have been derived, but does not require the Court to be
satisfied that the property
in respect of which the foreign restraining order was made
is itself property derived from the commission of that offence. To that
extent,
therefore, the fact that the Polish order may have been made in respect of property of
Mr Bujak, without the need for that
property in and of itself to be linked to the
commission of the offence in question, does not take the Polish order outside the
definition
of a foreign restraining order.
[35] That conclusion is, as regards MACMA, supported by the provision in
MACMA for foreign pecuniary
penalty orders to be registered in New Zealand.
Where a foreign pecuniary penalty order is registered in accordance with s 56 of
MACMA it takes effect, and may be enforced, as if it were a pecuniary penalty order
made by the High Court under PCA and entered on the date of registration (s 57(3)
MACMA). A foreign pecuniary penalty order will then become, as a domestic
pecuniary penalty order, a civil claim against a person,
and able as such to be
satisfied from the assets generally of that person.
[36] There remains, however, the need to address the
element of the definition of
foreign restraining order that requires that order to have been made in respect of
benefits derived.
[37] Where the Solicitor-General's application to register a foreign restraining
order is based on benefits derived, the Crown
must show that benefits have been or
may have been derived, "directly or indirectly" (s 2(3) MACMA), from the
commission of a qualifying
offence.
[38] Mr Illingworth's submission on this matter was that there was nothing to say
that the Polish Court had made its
order in respect of benefits derived.
[39] For the Solicitor-General, Ms Laracy's point was that MACMA did not
specify the precise
evidential standard to which the Polish Court must be satisfied
that "benefits have been derived from the offending" other than by
the use of "may".
The High Court, therefore, needed only to consider whether there "may" be some
evidence of that. Ms Laracy submitted
that "may" was a much lower standard than
"reasonable grounds to believe", and in this context meant no more than some
reasonable
possibility. She submitted that the facts of the case pointed to a far
greater probability than that.
[40] It is appropriate
to note, at this point, that the Solicitor-General had as
anticipated by the Court of Appeal obtained further evidence for the
purposes of
the hearing of this application.
[41] Affidavits from Michael Smith, Mandy Bastier and Rex Hampton, all
customs officers
at Christchurch, were submitted.
[42] Those affidavits establish that between December 1998 and June 1999 Mr
Bujak came to New
Zealand on four separate occasions. In December 1998 he
arrived and stayed two days. In March 1999 he arrived and stayed a week.
At the
end of April 1999 he arrived and stayed for a month. He then arrived on 1 June 1999
and has remained in New Zealand since
that time. When he arrived in New Zealand
on 28 April 1999 he was found to be in possession of USD$95,000. On arriving in
New Zealand
on 1 June 1999 he was found to be in possession of USD$80,000 in
cash and USD$70,000 in travellers cheques.
[43] The relevance
of this information is, from the Solicitor-General's perspective,
that Mr Bujak arrived in New Zealand with substantial amounts of
cash, which at the
time he said he intended to invest here.
[44] Information as to those matters had been provided by New Zealand
authorities, apparently through Interpol, to Poland. It was as a result of the receipt of
that information that the Polish authorities
had commenced proceedings in Poland
which led to the making of the Polish order and, in turn, the application to New
Zealand for
assistance. Poland is also applying to extradite Mr Bujak, and those
extradition proceedings have been before various courts, including
the Court of
Appeal, on a number of occasions.
[45] The Solicitor-General also obtained a detailed statement from Ms Orlowska,
who is a public prosecutor in the Public Prosecutor's Office in Kielce in Poland, the
Public Prosecutor's Office responsible for
the application to the Polish courts for the
Polish order. Ms Orlowska's statement conformed, in Ms Laracy's submission, with
the
requirements of R 523 of the High Court Rules for authenticated depositions and
accordingly was admissible as evidence under R 524.
That proposition was not
challenged by Mr Illingworth, and I proceed on that basis.
[46] Ms Orlowska's statement was provided
to me both in its original Polish form
and as a translation by an official translator. That statement went, in some detail,
into
relevant aspects of Polish law and criminal proceedings.
[47] Based on this new evidence, and in particular Ms Orlowska's translated
statement, Ms Laracy submitted as follows:
50. The evidence plainly shows that the Polish Court had reasonable
grounds to believe that the respondent
had, in New Zealand, funds in
bank accounts, property rights in companies, and real estate.
51. The reasons
for making the Polish restraining order in respect of this
property are set out by the Polish Public Prosecutor in
her affidavit.
In summary:
51.1 The offending the respondent is accused of
committing inherently results in a pecuniary
advantage. (In particular it is relevant
that the
respondent is charged with misappropriating
property and obtaining
credit by false pretences.)
51.2 Under Polish law if a person derives "pecuniary
proceeds from the commission of a crime" then
upon conviction the Court will order "the return
of
that advantage or the equivalent to the wronged
party." Therefore
if a person in Poland is accused of
committing such a crime the Public Prosecutor is
obliged to determine:
51.2.1.1 Whether the accused has any
valuable assets; and
51.2.1.2 Whether there is a real
possibility
that the accused will attempt to
dispose of those assets to avoid
paying a fine, reparation or
compensation order.
51.3 In the present case the Public Prosecutor found
that,
by December 1998, the respondent had disposed of
all his assets
in Poland by selling real estate,
vehicles and company shares.
51.4 The Public
Prosecutor later became aware that the
respondent imported over $150,000 USD into New
Zealand (without declaration) in early 1999 and that
by 2006 he owned at least one
property and six bank
accounts in New Zealand and was involved in
numerous
companies. Therefore she obtained a
restraining order that was broad enough to
encompass those assets.
Critically, almost immediately after the offending period, in 1998,
52.
the respondent was found to have no property in Poland but large
sums of money in New Zealand (see also
the Customs' affidavits)
and at least one property here.
53. Based on this information it is clear that
the Polish authorities made
the restraining order on the basis of the respondent's known valuable
assets
which may, in the circumstances, reasonably be believed to be
derived from his fraudulent offending in Poland.
[48]
In the words of the prosecutor, as translated:
The accumulation of the fraudulent activities of Slawomir Bujak in the last
few months of 1998, including getting rid of his personal assets, proves
beyond question that the money imported into
New Zealand territory was the
proceeds of the crimes of which he is charged. And accordingly, any
reparation claims
and fine that may be ordered by a judgment with legal
force should be settled from the assets now owned by Slawomir Bujak in
New Zealand. (at para [37])
[49] Under Polish
law, the decision to "seize", to adopt the term used in the Polish
order, a suspected person's property is made by the public prosecutor.
Here that
decision had been made by Ms Orlowska herself. That decision only became legally
operative if and when the Polish Court
subsequently granted what is known under
Polish law as an enforceability clause.
[50] Ms Laracy's submission was, therefore,
that it was clear from Ms Orlowska's
statement that her decision had been made on the basis that Mr Bujak was suspected
of committing
serious offences and, furthermore, on the basis that the money brought
to New Zealand, and the subsequent property acquired by him
in New Zealand,
represented benefits that, at least, "may have been derived" from that offending.
[51] The Solicitor-General
further submitted that the decision of the Polish Court,
which did not explicitly state that the order was made in respect of benefits
derived,
was to be read together with Ms Orlowska's decision. It too, therefore, could be
seen to have been made in respect of benefits
derived. Ms Salmond, who advanced
this part of the Solicitor-General's argument, was not, however, able to point to any
particular
provision of Polish law which supported that proposition.
[52] Mr Illingworth did not, in his written submissions, address the
relevance of
the material provided in the Polish prosecutor's statement. Before me, whilst he
acknowledged what the Polish prosecutor
had said, his point was that there was
nothing to say that the prosecutor's views were, in any relevant way, shared by the
Polish
Court which made the order. As regards the submission that the decision of
the Polish prosecutor (a copy of which was provided to
the Court of Appeal and
appeared at pages 130 to 142 of the case on appeal) should be regarded as
constituting part of the Polish
Court's decision, he said that that was a proposition
without support as a matter of Polish law, and therefore one that could not
be relied
on by this Court.
[53] I now consider whether the Solicitor-General has established the conformity
of the Polish order
with the requirements of the definition of foreign restraining
order in MACMA, which require such an order to have been made by
the Court in
respect of benefits that have been or may have been derived, directly or indirectly,
from the commission of the relevant
offence(s).
[54] I note first that the regime under MACMA would appear to differ from the
regime under PCA on the question of
the standard by reference to which it must be
established that relevant benefits have been derived. As already noted, MACMA's
definition
of foreign restraining order requires the New Zealand Court to consider
whether benefits have been, or may have been, derived by
a person from the
commission of a relevant offence. Under PCA, the Court is required to be satisfied
on "reasonable grounds" that
the defendant derived a benefit, directly or indirectly,
from the commission of the offence in question.
[55] The lower MACMA
standard, would appear given how closely together in
point of time the two Acts were enacted (PCA received royal assent on 9 December
1991, MACMA on 26 September 1992) to have been deliberate. That conclusion
is, in my judgement, supported by the fact that there
are no provisions in MACMA
equivalent to those found in s 44 of PCA. This also indicates that the MACMA
regime would appear to enable
foreign restraining orders to be registered at an earlier
stage in the criminal process, and consequentially therefore when the evidence
linking property and persons to the relevant offence is less compelling than is
required domestically under PCA.
[56] In that
context, in my judgment when Ms Orlowska made her decision to
seize Mr Bujak's property she did so on terms that were she to have
been the
relevant decision maker would have satisfied the requirements of MACMA on this
point. In other words, her decision was one made in respect of benefits that
had been
derived, or may have been derived, by a person in this case, Mr Bujak from the
commission of a relevant offence.
[57]
It is less clear, however, that the Polish Court itself did likewise.
[58] The Polish Court's decision, as translated and as
set out in the original Case
on Appeal, was in terms that the Court, having considered a motion by the District
Public Prosecutor
for granting an enforcement clause in respect of a matter against
Mr Bujak, who was suspected of having committed various crimes,
decided to grant
that enforcement clause. In a section headed "Reasons" the Court noted that the
motion could reasonably be granted
and referred to various provisions of the Polish
Code of Executive Penal Procedure and the Polish Code of Civil Procedure.
[59]
Ms Orlowska's statement did not address itself to the significance of the text
of that decision. Furthermore, I was not provided
with a copy of the motion referred
to by the Polish Court. Nor was I provided with any explanation, at least in a form
that I could
understand, of the "Reasons" section of the Court's decision nor, in
particular, of the significance of the various provisions of
the Polish Code of
Executive Penal Procedure or the Polish Code of Civil Procedure that were therein
referred to. Finally, and as
I have already noted, Ms Salmond's submission that the
prosecutor's decision and the Court order should be read together were not
supported
by any Polish material.
[60] Given the onus on the Crown, and the significance of the registration of a
foreign restraining
order as commented on by the Court of Appeal I therefore do
not consider that the Solicitor-General has discharged that onus as
regards the need
for me to be satisfied that the Polish Court made its decision in respect of benefits
derived.
Does the Polish
order seize or restrain?
[61] Mr Illingworth argued that the Polish order does not, on its terms, restrain a
particular person,
or all persons, from dealing with property as required by the
s 2(1)(b) MACMA definition of "foreign restraining order". His argument
is that the
Polish order purports to operate as a "seizure" of property and that a "seizure" of
property is not only different from
a "restraint" of property but falls outside of the
s 2(1)(b) definition.
[62] Mr Illingworth cites a Victorian Court of Appeal
decision, DPP
(Commonwealth) v Peniche [2000] VSCA 40 in support of his submission. There,
Mandie J held, at [10], that there is "a real distinction" between an order calling on
an
authority to "seize" property and an order "directly restraining a particular person
or all persons from dealing with the property".
Mandie J reasoned, at [11], that the
concept of restraining a person from dealing with property is not as such concerned
with obtaining
the physical possession of property, but rather with the disposition of
the property or any interest in the property. A seizure may
restrain someone from
dealing with property, but a restraint need not involve the seizure of property. The
Victorian Court of Appeal
upheld Mandie J's judgment in DPP (Commonwealth) v
Peniche (aka Merrit) [2000] VSCA 40 (22 March 2000), describing it at [2] and [4]
as the "right" decision.
[63] Mandie J's reasoning is, in my judgment, persuasive.
The ordinary and
natural meaning of "seizure" is taking possession of property: R v Grayson and
Taylor [1997] 1 NZLR 399 (CA) at p406; Falkner v Gisborne District Council
[1995] 3 NZLR 622 (HC) at p633. "Restrain", on the other hand, connotes
something less than a seizure, such as confining or limiting the
use of property:
Blacks Law Dictionary (8ed 2004) at p1340. The Oxford English Dictionary
definition of "restrain" reinforces
this connotation, giving as its first definition of the
verb "restrain": "To check, hold back, or prevent (a person or thing) from
some
course of action". These definitions support Mandie J's conclusion that "seize", by
virtue of its breadth, is not in this context
synonymous with "restrain".
[64] This conclusion is important. Parliament has authorised the registration of
foreign forfeiture
orders that confine or limit the use of property. It has not
authorised the registration of orders that go a step further
and, in their own terms,
purport to seize property.
[65] Article 292 section 1 of the Polish Code of Penal Procedure (as translated)
provides that "Securing of potential forfeiture of objects shall be conducted through
seizure of moveable property, debt claims and
other property rights and through
imposing the ban on selling and encumbering real estate". Related provisions
include
Article 295 section 1, Article 295 section 3 and Article 295 section 4 of the
Polish Code of Penal Procedure and Article 747 of the
Polish Code of Civil
Procedure. As translated, these provisions, in line with Article 292 section 1, all
refer to the "seizure" of
property.
[66] The Crown, in the face of these provisions, submits that it is the effect of the
Polish order that is important,
not its (translated) language. It urges the Court to
accommodate Poland's legal terminology, which it says is necessary to ensure
that
international co-operation and comity are effective. The Crown, guided by these
principles, then refers to Ms Orlowska's evidence
that "seizure", in the legal context
in which it is used, means "restrain":
... a decision to seize assets is not, and cannot
be, construed as a
"confiscation of assets". The purpose of such a decision is to prevent the
disposal by the accused
(suspect) of specific assets as defined in the seizure
decision so that the suspect (accused) will not get rid of the assets
before the
issuing of a court judgment with legal force, in order to avoid paying a fine
or reparation to wronged parties.
[67] The Crown also refers to Ms Orlowska's evidence that:
Notwithstanding the issuing of the decision to seize assets
and the
enforceability clause in this case, Mr Bujak continues to own the seized
assets, but he is not able to freely
dispose of them.
[68] There are a number of difficulties with this evidence.
[69] In the first place, the Crown has not established
Ms Orlowska's expertise in
Polish law. I am not aware, for example, of the extent to which she is legally
qualified. Nor am I aware
of the length of time she has been practising law and,
based on this, the extent of her experience with, and understanding of, Polish
law.
[70] Further, the (translated) evidence of the Prosecutor does not in my judgement
adequately address Mr Illingworth's concern
that the Polish order, by its terms,
seizes Mr Bujak's property. The Prosecutor emphasises that the decision to seize
assets is not,
and cannot be, construed as a "confiscation" of assets. But according to
the Oxford English Dictionary, "confiscate" connotes a permanent
deprivation of
property. The verb "confiscate" may entail the seizure of property (as the Oxford
English Dictionary observes), but
it is clearly broader than the verb "seizure".
[71] As such, it does not follow that, in being less than a confiscation, the
Polish
order goes no further than restraining dealings with Mr Bujak's property.
[72] Other evidence relied on by the Crown
to support its submission that
"seizure" in the legal context in which it is used means "restrain" does not address
my concern that
the Polish order may go further than "restraining a particular person,
or all persons, from dealing with [Mr Bujak's] property".
[73]
Various Polish legal material was appended to Ms Orlowska's statement, but
unfortunately not cross-referenced in any detail to
particular parts of that statement.
[74] It would appear, from the text at para [26] of Ms Orlowska's statement, that
Article
747 of the Code of Criminal Procedure describes how "seizure" works in
respect of various types of assets where monetary crimes are
(as would appear to be
the case with Mr Bujak) at issue.
[75] Article 747 talks of the "seizure of moveable assets" and the
"encumbrance"
with "obligatory mortgages" of real estate.
[76] Ms Orlowska explains that a "seizure of [bank account] funds"
is carried out
by giving the bank notification of the order and asking it "not to make any payments
from the account without the
approval of the bailiff for the amount of the seized
recoverable debt".
[77] I note, however, that Article 752, paragraph 1
provides as translated that
"seized monies shall be deposited in the Court's deposit amount, and seized financial
assets shall
be deposited with a bank".
[78] Ms Orlowska also explains that the "encumbrance of real estate with an
obligatory mortgage"
is carried out:
... by placement of an entry in the real estate register(s) for the real estate in
question. The
entry is to specify the amount for which the mortgage is to
secure payment of the fine and pecuniary penalties.
[79]
She does not, however, explain with any particularity the actual legal
consequences (as opposed to the asserted restraining effect)
that attend the placement
of an entry in the real estate register(s) for the real estate in question.
[80] Article 747 also
provides for the "placement under compulsory management
of a business or farm of the obligor or of an establishment included in a
business or
forming part thereof a part of the farm of the obligor". This would appear, also, to
go beyond restraint.
[81]
Notwithstanding, therefore, Ms Orlowska's evidence, I am left with a number
of questions regarding the extent to which the Polish
order goes beyond what I
would understand to be an order which restrains, and is an order which actually
seizes property.
[82]
I do not think that, in these circumstances, I can properly conclude that the
Polish order restrains, but does no more than restrain,
Mr Bujak's real estate
property.
[83] I therefore conclude that the Solicitor-General has not established that the
Polish order
is a "foreign restraining order" and that for that reason also the Polish
order should not be registered as a foreign restraining
order.
Result
[84] The Polish order is not, as things currently stand, registrable under MACMA.
The registration order I
made is therefore discharged.
[85] This conclusion does not prevent a further application to register the Polish
order. The
Court will consider any such application afresh and, if the deficiencies
identified in this judgment are satisfactorily addressed,
the Court may register it.
[86] The respondent is entitled to costs in his favour, on a 2B basis. If the parties
are unable
to agree on the question of costs, they may file memoranda with this
Court.
"Clifford J"
Solicitors: Crown Law Office, Wellington for Applicant
Clive Cousins,
Cousins & Associates, Christchurch for Respondent
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