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Banks v Farmer

Banks v Farmer

Case [2023] NZCA 612 1 December 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA67/2023
[2023] NZCA 612

BETWEEN	KIRSTIN MARJORY SLESSOR Appellant
AND	COMMISSIONER OF POLICE Respondent

Hearing:	30 August 2023
Court:	Courtney, Whata and Downs JJ
Counsel:	NTC Batts for Appellant S M Earl and R M Gibbs for Respondent
Judgment:	1 December 2023 at 11 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

The appeal

The High Court made an $84,000 profit forfeiture order against Kirstin Slessor after she unlawfully benefitted from the manufacture and supply of methamphetamine.[1] The Court held that $28,778 in cash seized in 2007 could be used to partially satisfy the profit forfeiture order. For convenience, we refer to this as forfeiture of the cash.
[1]Commissioner of Police v Slessor [2022] NZHC 3511.
Ms Slessor appeals forfeiture of the cash. She contends that police illegality in connection with the cash engages the Latin maxim, ex turpi causa non oritur actio (no cause of action should arise from illegal acts), or, as it is now known, the illegality principle, and this principle affords a defence to forfeiture of the cash. The respondent contends the illegality principle is incompatible with the Criminal Proceeds (Recovery) Act 2009 — the statute by which the Judge forfeited the cash — and in any event, is no barrier to forfeiture on the circumstances of the case.

Background

On 23 November 2007, police pursued a car which stopped near Ms Slessor’s home. The driver ran into her home. Ms Slessor came out of her home, went to the car, retrieved a toilet bag, and attempted to hide that bag from police. A search of the bag revealed:
(a)Six snaplock bags, containing 24.7 grams of methamphetamine.
(b)One ecstasy tablet and one tablet of benzylpiperazine.
(c)Cash in excess of $30,000, which we call the cash.
Ms Slessor acknowledged removing the bag from the car but denied knowing what was inside.
Ms Slessor’s home was also searched. Police found numerous snaplock bags, containers with residual amounts of methamphetamine, electronic scales, items consistent with the supply of methamphetamine, 135 tabs of LSD, and 48 grams of cannabis.
Ms Slessor was charged with offences contrary to the Misuse of Drugs Act 1975. She contested the admissibility of the prosecution’s evidence, asserting her arrest had been unlawful; likewise, the search of her home. The District Court upheld the first contention, rejected the second, and concluded all of the evidence was admissible.[2]
[2]R v Slessor DC Auckland CRI-2007-090-11368, 1 March 2011 at [92].
Ms Slessor ultimately pleaded guilty to two charges of possessing methamphetamine for the purpose of supply; one charge of supplying methamphetamine; and one of charge of possessing LSD for the purpose of supply.
The summary of facts in relation to the offending ended with these narrations:
An order is sought from the Court for the destruction of all utensils, containers and items seized…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banks v Farmer

Details

AGLC: Banks v Farmer [2023] NZCA 612
Case: [2023] NZCA 612
Decision Date: 1 December 2023 at 11 am

CaseChat Overview and Summary

In the case of Banks v Farmer, Kirstin Marjory Slessor appealed against the forfeiture of $28,778 in cash seized in 2007. The High Court had previously held that Slessor had unlawfully benefitted from the manufacture and supply of methamphetamine, and made a profit forfeiture order of $84,000 against her. The Court held that the cash seized could be used to partially satisfy the profit forfeiture order. Slessor contended that police illegality in connection with the cash should prevent its forfeiture under the illegality principle. The Commissioner of Police argued that the illegality principle was incompatible with the Criminal Proceeds (Recovery) Act 2009 and was no barrier to forfeiture in this case.

The Court of Appeal considered whether the illegality principle could be used to prevent forfeiture of the cash. The Court held that while it was arguable that the illegality principle could be used to exclude property from the prospect of forfeiture, it was not necessary to determine whether the principle was compatible with the Act or needed in this context. The Court found that forfeiture of the cash was not contrary to the public interest and would be a disproportionate response to the police impropriety. The cash was unquestionably derived from or in connection with drug dealing, and declining forfeiture would be quite disproportionate to the impropriety. The Court also noted that the Commissioner's claim to forfeiture of the cash was not reliant on the impropriety.

The Court declined the application to adduce further evidence and dismissed the appeal. The final orders of the Court were that the application to adduce further evidence was declined, and the appeal was dismissed.

Orders