Commissioner, New Zealand Police v Nicol

[2020] NZHC 2302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-490

[2020] NZHC 2302

IN THE MATTER OF

an application under section 50 of the

Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

GRANT GENE JOSEPH NICOL

Respondent

ELIZABETH ANN HALL

Interested Party

Hearing:	2 September 2020
Counsel:	A M W Britton for Applicant E T Blincoe for Respondent
Judgment:	4 September 2020

JUDGMENT OF CLARK J

[1]        The Commissioner seeks an assets forfeiture order in relation to cash seized at three different locations. The matter was listed for a formal proof hearing on 13 July 2020.

[2]        On 2 September 2020, the day of the hearing, counsel for Mr Nicol confirmed that Mr Nicol did not oppose two of the orders sought by the Commissioner.1 Accordingly, this judgment determines the Commissioner’s application for an order

1      The respondent opposes the Commissioner’s application in relation to the cash sum described at [2](c) of the Commissioner’s application dated 1 May 2020.

THE COMMISSIONER, THE NEW ZEALAND POLICE v NICOL [2020] NZHC 2302 [4 September 2020]

that the following property vests in the Crown and is to be in the custody and control of the Official Assignee:

(a)cash to a total value of $59,400.00 found at 24 Titoki Road, Waikanae Beach on 15 March 2016 and currently being held by the Official Assignee in the New Zealand Insolvency & Trustee Service Proceeds of Crime Account;

(b)cash to a total value of $13,710.00 found in a Subaru motor vehicle on Kenepuru Drive, Porirua and at 55 and 56 Onepoto Road, Titahi Bay on 26 November 2015 and currently being held by the Official Assignee in the New Zealand Insolvency & Trustee Service Proceeds of Crime Account.

Factual background

[3]        In November 2015, the Police stopped a Subaru vehicle on Kenepuru Drive, Porirua. Mr Nicol was the front-seat passenger. He was subsequently arrested for supplying and offering to supply methamphetamine. The vehicle was searched pursuant to Mr Nicol’s arrest and, in addition to a glass pipe used for methamphetamine, $5,680 in cash was found in a belt bag in the front passenger foot well. A subsequent search of a property at which Mr Nicol had been staying located a further $8,030 in cash making a total of $13,710 seized by the Police.

[4]        In March 2016 Mr Nicol’s address was searched. In addition to methamphetamine, digital scales and a handgun, $9,400 in cash was found in a wallet under a couch and $50,000 in cash in a bag inside a motor vehicle. A total of $59,400 was seized from this property.

[5]On 2 April 2019 Mr Nicol was convicted of the following charges:

16.1three charges of offering to supply methamphetamine;2

16.2one charge of supplying methamphetamine;3

2      Misuse of Drugs Act 1975, s 6(1)–(3).

3      Sections 6(1)(f) and (2).

16.3two charges of possession of utensils for methamphetamine.4

[6]        The charges of offering to supply, and supplying methamphetamine, carry a maximum penalty of life imprisonment and accordingly constitute “significant criminal activity” for the purposes of the Criminal Proceeds (Recovery) Act 2009 (the Act).5

Asset forfeiture orders

[7]        Under s 50 of the Act, the Court “must” make an asset forfeiture order in respect of specific property if satisfied on the balance of probabilities that the property is “tainted property”.

[8]        I am satisfied the restrained cash was acquired as a result of significant criminal activity and is therefore tainted property within the meaning of the Act. Not only has Mr Nicol been convicted of relevant offences carrying a maximum penalty of life imprisonment but between 2012 and 2017 he was in receipt of benefits and had no other legitimate sources of income. He has deposed in an affidavit filed in support of an application to release funds to his lawyer that after paying his bills he was left with

$80 per week. At the time of the seizures of the restrained cash his bank account was either in arrears or contained only a nominal amount.

[9]        As Mr Nicol was not in a position to accumulate cash assets of $101,000, the only tenable inference is that the cash was derived from his significant criminal activity, namely the sale of methamphetamine.

[10]      As the Court of Appeal held in Commissioner of Police v De Wys if large cash sums cannot be adequately explained “this will tend to support an inference that the relevant cash has been sourced from illegitimate or criminal activity”.6

4      Sections 13(1)(a) and (3).

5      Criminal Proceeds (Recovery) Act 2009, s 50; s 5 definition of “tainted property” and “significant criminal activity”.

6      Commissioner of Police v De Wys [2016] NZCA 634 at [71].

Result

[11]      Accordingly, the Commissioner’s application for an assets forfeiture order is granted in relation to the property referred to at [2](a) and (b) above.

Karen Clark J

Solicitors:

Crown Solicitor, Wellington for Applicant Ord Legal, Wellington for Respondent