Question arose in context of forfeiture orders over real estate properties
The Supreme Court of New Zealand did not consider a proposed appeal an appropriate vehicle to answer a broad question on the inter-relationship between undue hardship under the Criminal Proceeds (Recovery) Act 2009 and s 9 of the New Zealand Bill of Rights Act 1990.
In 2017, police executed a search warrant at the properties of the applicant in Alexander v Commissioner of Police [2026] NZSC 38. They found cannabis cultivated in grow rooms, dried cannabis, and cash.
The applicant received a sentence of six months of community detention for his conviction on charges of cultivating and possessing cannabis and possessing a firearm without a licence. He started serving his sentence.
In 2018, police executed another warrant at the applicant’s properties. They saw cannabis, grow rooms, and cultivation equipment. In 2019, the High Court of New Zealand dismissed the criminal prosecution upon finding the evidence obtained under the warrant inadmissible.
Leading up to the High Court’s forfeiture hearing, three counsel assigned to the applicant withdrew. The most recent withdrawal happened the day before the hearing. The applicant was thus self‑represented.
Under the Criminal Proceeds (Recovery) Act 2009, the High Court issued asset forfeiture orders concerning the applicant’s three real estate properties and cash of $6,000 found at one of the properties. He appealed.
The Court of Appeal of New Zealand set aside the High Court’s costs orders. However, the appeal court otherwise dismissed the appeal. Before the Supreme Court, the applicant applied for leave to appeal on the ground of undue hardship.
In his proposed appeal, the applicant alleged that the court should order relief and should assess hardship even without an application under s 51 of the Criminal Proceeds (Recovery) Act.
The applicant argued that the orders involving the forfeiture of his only significant asset were unduly harsh and grossly disproportionate.
The applicant asserted that his proposed appeal raised questions of general or public importance about the relationship between undue hardship under the Criminal Proceeds (Recovery) Act and s 9 of the Bill of Rights Act, regarding the right against cruel and unusual treatment or punishment.
The respondent police commissioner acknowledged that the relationship between the Criminal Proceeds (Recovery) Act’s approach to hardship and s 9 of the Bill of Rights Act might involve a question of general or public importance. However, the respondent pointed out that the courts below did not fully ventilate this issue.
The Supreme Court of New Zealand dismissed the application for leave to appeal. It saw no apparent miscarriage of justice.
The Supreme Court addressed the absence of an application under s 51. The Supreme Court noted that the applicant did not apply for relief based on hardship despite having legal representation until the day before the hearing.
Regardless of s 51’s effect on the court’s jurisdiction, given the absence of an application for relief, the Supreme Court found that the parties had not advanced evidence directly addressing particular hardship.
The Supreme Court accepted that the assertions regarding the forfeiture’s impact on the applicant’s sons might be relevant to the question of hardship.
However, the Supreme Court saw no evidence indicating that the sons were residing at the property. The Supreme Court added that it received no application from them, apart from the challenge against the police’s attempt to forfeit a car registered in the name of one of the sons.
