We consider ourselves leaders among a new generation of criminal proceeds barrister. I may be the most high profile of the new generation. I also work with, and refer proceeds cases to civil counsel who I consider to be energised, progressive, and innovative.
After 10 years, the case law is, frankly, obscene in the lack of insightful and substantive legal challenge to the Commissioner's powers under the Criminal Proceeds (Recovery) Act 2009. This is shocking, considering the amount of property that has been forfeited to the Crown in the past 10 years. We believe this has occurred because the wrong category of barrister has been acting in defence - criminal proceeds cases are CIVIL matters, not criminal. Defending these matters requires real civil speciality (knowledge about severing & excluding property interests), not criminal law.
Costs hearings are an area where I will consider acting on a discounted fixed fee basis. The costs case law is outrageous. I challenge any civil litigator to review costs judgments in criminal proceeds case law and not come away feeling moved to help some of these litigants; it would not be difficult to make a difference.
Clients (and instructing solicitors), the power is in your hands to ensure we grow a better criminal proceeds defence bar in New Zealand going forward.
J M Matheson
Opposition to restraint
Opposition to forfeiture
Applications for severance of property interests
Applications for exclusion of property on basis of undue hardship
Judicial Review of Commissioner of Police's and his officers' powers under the Criminal Proceeds regime
Judicial Review of the Official Assignee's powers under the Criminal Proceeds regime
Out of Court Advisory
Liaison with creditors/third parties
With the Commissioner's lawyers
Strategic Advocacy Services
(multi-targeted, in and out of Court, including social media)
Criminal proceeds litigation is civil litigation.
$490 + GST per hour, plus disbursements
Fixed Fees may be available at my exclusive and sole discretion. Some litigants who do not qualify for legal aid find a fixed-fee-per-step helpful.
Urgent criminal proceeds work will incur premium hourly rates between $550 to $800 per hour, depending on time, complexity, and the work I must drop to deal with your urgent matter.
For large value criminal proceeds matters, with multiple respondents and interested parties, and multiple party types (companies, trusts, individuals, children etc) it will be necessary to have multiple barristers acting for different parties. This is to avoid the appearance of conflict, but also actual conflict that may arise during the litigation. This also assists with a more manageable and safe workload for each barrister and their solicitor.
Ms Matheson indicates that if families, groups, clubs, or individuals wish for Ms Matheson to bring her strong, unique, and effective defensive approach to their criminal proceeds matter, that it is best Ms Matheson be allowed to assemble and lead the team of barristers. It is best to contact us first, we can then assess the work and the number of barristers required.
Team fit is very important. Ms Matheson may advise you of barristers whom she works best with.
Commissioner of Police v T and J
Value of property: >$150K
Application for restraining orders over more than $100K in cash notes that were seized as part of a large scale raid. In addition, the Commissioner sought a larger forfeiture order over assets of the First and Second Respondents. This was an Application made under the provisions of the new version of the Criminal Proceeds (Recovery) Act 2009.
The Commissioner agreed not to pursue a forfeiture order against the First and Second Respondents.
We acted for the First and Second Respondents. These clients were referred to Ms Matheson by a specialist criminal barrister.
Commissioner of Police v Z & Ors
Value of property: >$17M
Ms Matheson was instructed in 2022 to lead this large value litigation and assemble a litigation team.
To date, Ms Matheson has achieved the following in this proceeding:
1. the inclusion of statements as to CHILDREN'S RIGHTS in an extension application judgment.
2. JOINDER of 2 minors to the proceeding (children are discretionary beneficiaries of a trust, but have interests additional to this) joinder is standard in civil litigation, but it has not been properly used in criminal proceeds matters in the past.
3. The complete REMOVAL of the lead detective's affidavit in reply.
4. The FIRST successful Application for Recall of a criminal proceeds Judgment.
Commissioner of Police v C & Ors
Successful defence of an approximate $20M Profit Forfeiture Application
Counsel assisting the Court: Mike Lennard
Ms Matheson did not appear as counsel in this matter
Ms Matheson's test criminal proceeds case Commissioner of Police v N (N) was cited by His Honour Justice Cooke as forming a case law basis on which the Commissioner of Police's Application for an approximate $20M Profit Forfeiture was dismissed.
Ms Matheson argued the test case N, in lead counsel position, in 2021. In a nutshell, Ms Matheson said that the High Court needed to consider whether the benefit that one receives from the non-declaration of income upon which tax is not paid, is properly said to be a "criminal benefit" under the Act. Ms Matheson said what follows from the non-declaration of income was not a benefit as such, but merely a liability to the Commissioner of Inland Revenue. This argument stood the test of time and the High Court recognised the case as being the first in New Zealand history to consider the issue of 'double benefit' to the Crown i.e. The Commissioner of Inland Revenue and the Commissioner of Police are indivisible as 'the crown' for the purposes of the Act. We appreciate Her Honour Justice Duffy (as she was then) and her consideration of Ms Matheson's (unusual) arguments in 2021. With the benefit of hindsight, we can see Ms Matheson's arguments were 'ahead of her time'!
Notable points in Judgment for litigants and counsel
Commissioner of Police v N
Value of property: >$200K
Ms Matheson conducted a rare substantive opposition to the Commissioner's On Notice Application for Restraining Orders over company and personal property.
Our client argued that a criminal benefit needed to be shown by the Commissioner of Police as required under the Act, but there was no criminal benefit as defined from the alleged tax evasion, but merely a liability to the Commissioner of Inland Revenue. If there is no benefit from the criminal activity, then how can there be "proceeds" from crime? This argument is relevant when the money earned (that is subsequently not declare to the Revenue) comes from legitimate and lawful enterprise. However, the C case (above) appears to expand this, in that it may be that even if, say, fraudulent tax activity is a basis upon which a benefit is earned, then a corresponding tax debt/liability may negate any alleged benefit.... watch this space.
All property of Ms Matheson's client was released by Police after the order for restraint was made, plus interest.
The N case is cited in the above IRD Case summary.
Commissioner of Police v N
First time a resulting trust argument was used in New Zealand proceeds of crime case law history and first time it was done so successfully. Ms Matheson lead and crafted this argument.
Value of property released: <$20K
Total value of property restrained: >$200K
Release of vehicle on the basis of a resulting trust argument. Ms Matheson filed an Application for severance on the basis of beneficial title. Interested Party alleged his interest was a beneficial interest as a resulting trust beneficiary. On this basis, the respondent held only legal title as a resulting trustee.
The argument put forward by Ms Matheson is complex and, as we understand it, may be the first time a resulting trust argument has been raised in this jurisdiction.
This matter was settled, and the Commissioner released the vehicle promptly to the interested party.
We caution self-represented litigants attempting to replicate this result. This kind of argument and litigation requires a civil specialist or at least a barrister with experience in trust litigation. Ms Matheson is always happy to assist, subject to engagement.
Jess@jmathlaw.com (Barrister Sole)
Christine@jmathlaw.com (Practice Administrator)
0800 JES LAW (0800 537 529)
Main working location in Auckland Central, Remuera.
Satellite locations in Northland, on the East Coast, and Taranaki when required.
We receive enquiries from Wellington and Christchurch often.