BETWEEN COMMISSIONER OF POLICE Applicant AND JARED WILLIAM BRIAN GILLARD Respondent AND JOHN BENSON GILLARD Interested Party

[2023] NZHC 3790

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-374

[2023] NZHC 3790

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 21, 24 and 25

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JARED WILLIAM BRIAN GILLARD

Respondent

AND

JOHN BENSON GILLARD

Interested Party

Hearing (by VMR):	18 December 2023
Counsel:	E M Ferrier for the Applicant
Judgment:	19 December 2023

JUDGMENT OF GWYN J

(Asset forfeiture order)

[1]    On 25 August 2023 the Court granted an on notice restraining order in respect of $39,095 cash located at the respondent’s home address in Upper Hutt during a warrantless search of that property on 21 October 2021.1

[2]    Subsequently, the Commissioner has applied under ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (Act) for a type 1 asset forfeiture order against the respondent, in respect of that cash amount and accrued interest.

1      Commissioner of Police v Gillard HC Wellington CIV-2023-485-374, 25 August 2023 (Minute of Gwyn J).

COMMISSIONER OF POLICE v GILLARD [2023] NZHC 3790 [19 December 2023]

[3]    The application  was served on the respondent  and the interested party on   15 December 2023. Nicola Sherbourne, a Specialist Investigator, in the New Zealand Police Central Asset Recovery Unit, has filed an affidavit of service advising that on that date she and Detective Samuel Buckley met with the respondent and the interested party and served both parties with a copy of the application. Ms Sherbourne advised both parties that the matter was to be called in this Court on 18 December 2023 and it was likely that the application would be dealt with on the papers. The respondent and interested party confirmed to Ms Sherbourne that they understood.

[4]    Neither the respondent nor the interested party has filed a notice of opposition and accordingly the Commissioner requests that the Court determine the application on the papers.

Assets forfeiture order

[5]    Under s 50 of the Criminal Proceeds (Recovery) Act 2009 (Act) the Court must make a type 1 assets forfeiture order in respect of the specified property if satisfied on the balance of probabilities that specific property is tainted property.

[6]“Tainted property” is defined in s 5 of the Act:

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

[7]    The Commissioner says that the Court can be satisfied, on the balance of probabilities, that the proposed forfeited property is, wholly or in part “tainted property”, in that the property was acquired and derived from significant criminal activity, namely the sale and supply of controlled drugs, being cannabis and LSD, offences against ss 6(1)(c) and (d) of the Misuse of Drugs Act 1975 with penalties specified under s 6(2)(a) and (c) of that Act.

[8]    The evidence filed on behalf of the Commissioner details the circumstances in which a warrantless search of the respondent’s property was conducted on 21 October 2021. The following property was found in the respondent’s bedroom during the course of the search:

(a)381 grams of cannabis, packaged for sale.

(b)42 tabs of Lysergic Acid Diethylamide (LSD).

(c)$39,095 NZD in cash.

[9]    The respondent was subsequently charged with possession of LSD for supply (maximum punishment life imprisonment); possession of cannabis for supply (maximum punishment eight years’ imprisonment); and a failure to carry out obligations in relation to a computer search (maximum punishment three months’ imprisonment).

[10]   Subsequently, on 12 October 2022, evidence obtained from the search of the property on 21 October 2021 was ruled inadmissible during a pre-trial hearing. Police then withdrew all criminal charges against Mr Gillard.

[11]   Detective Constable Smylie deposes that he believes the cash seized from the respondent’s bedroom on 21 October 2021 belonged to the respondent and was derived wholly, or partly, from criminal offending, namely dealing in controlled drugs.

[12]   On 22 November 2022 Detective Smylie obtained a search warrant relating to the content of the respondent’s cell phone. The content extracted from the cell phone by the Police High Tech Crime Group identifies messages which Detective Smylie believes relates to the respondent selling cannabis and LSD. Detective Smylie’s evidence is that the messaging illustrates 167 separate drug deals completed by the respondent between 21 July 2021 and 20 October 2021.

[13]   Detective Smylie’s evidence sets out examples of the text messages which, he deposes, demonstrate drug dealing.

[14]   Due to the ruling of inadmissibility in relation to the search of the property in October 2021, Police will not charge the respondent in relation to the drug dealing identified in the text messaging.

[15]   The evidence for the Commissioner estimates the value of the drugs sold by the respondent between 21 July 2021 and 20 October 2021 at $12,760. The amount of cash located by Police at the property on 21 October 2021 is more than three times that amount.

[16]   The evidence filed for the Commissioner canvasses the respondent’s declared income for the period 2019-2022, which was $0 for each of the second to fourth of those years and $4,057 for the first of those years.

[17]   A Police analysis of the respondent’s bank accounts identified a lack of incoming legitimate income to support his living expenses.

[18]   As counsel for the Commissioner notes, while the respondent has not been convicted of these offences, the Act does not require a criminal conviction. In any event the respondent has admitted to this significant criminal activity – in his examination interview, he admitted he supported himself by selling drugs, predominantly cannabis and smaller quantities of LSD.

[19]   The sale and supply of cannabis and LSD carry a maximum term of imprisonment of greater than five years (eight years and life imprisonment, respectively), and accordingly constitute “significant criminal activity” for the purposes of s 6 of the Act.

[20]   The Commissioner says that there is further evidence that the proposed forfeited property is “tainted property”:

(a)The respondent has not been in paid employment since 2017 or 2018.

(b)The interested party confirmed the funds seized belonged to the respondent and were proceeds from the respondent’s drug dealing.

(c)The respondent indicated the cash found was his and that 95 per cent of the cash was proceeds from selling cannabis and LSD, with the remaining five per cent from selling goods on Facebook Marketplace.

[21]   On the basis of the Commissioner’s application, the evidence set out in the affidavits of Nicola Sherbourne dated 16 November 2023 and the affidavit of Vincent Smylie dated 30 June 2023, and the absence of any opposition from the respondent and the interested party, I am satisfied that:

(a)The respondent has been involved in significant criminal activity in terms of s 6 of the Act, namely the sale and supply of cannabis and LSD.

(b)The funds amounting to $39,095 are “tainted property”.

(c)The interested party, John Gillard, has no claim or interest in the property subject to restraint.

Asset forfeiture order

[22]Accordingly, I make an asset forfeiture order in respect of funds amounting to

$39,095 seized in cash on 21 October 2021 from the respondent’s address, together with accrued interest. The order is made in terms of the Commissioner’s application dated 17 November 2023 and the draft order filed by counsel for the Commissioner on 19 December 2023.

Gwyn J