Commissioner of Police v Adams

[2022] NZHC 2249

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-559

[2022] NZHC 2249

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under sections 22, 24 and 25 of the Act

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

PAULA MAREE ADAMS

Respondent

WESTPAC NEW ZEALAND LIMITED
First Interested Party

LEGAL SERVICES COMMISSIONER

Second Interested Party

Hearing:	On the Papers
Counsel:	A W M Britton for Applicant
Judgment:	5 September 2022

JUDGMENT OF McQUEEN J

[1]    The Commissioner of Police applies, without notice, for restraining orders under ss 24 and/or 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act).1

[2]The orders are sought in relation to the following property:

1      Section 18 of the Act empowers the Commissioner to apply for restraining orders.

THE COMMISSIONER, THE NEW ZEALAND POLICE v ADAMS [2022] NZHC 2249 [5 September 2022]

(a)interests in a property at 81 Taylor Terrace, Tawa, Wellington, registered in the name of the respondent (other than the interests of Westpac New Zealand Ltd under a registered mortgage and the interest of the Legal Services Commissioner); and

(b)cash to the value of $68,380.00 located on 30 June 2022 at the 81 Taylor Terrace property and currently held in the New Zealand Police Trust Account.

[3]    The orders are sought on the basis that there are reasonable grounds to believe that the property is “tainted property” as defined in s 5 of the Act and/or that the respondent has unlawfully benefitted from significant criminal activity as defined in s 7 of the Act. The application is made without notice under s 22 of the Act on the grounds that there is a risk that the proposed restrained property may be disposed of or concealed, if notice were to be given to any or all persons who have an interest in the proposed restrained property, including the respondent.

[4]    The application is supported by the affidavit of Constable Karima Theres Dahdouli affirmed on 30 August 2022.

[5]    As regards the appropriateness of the application proceeding on a without notice basis, Constable Dahdouli notes in their affidavit:

(a)There is significant risk the 81 Taylor Terrace property could be disposed of or concealed if notice of these proceedings was given to the respondent.

(b)The current equity held in the residential property would be relatively straightforward to use as security against a loan, either through mainstream or alternative financial institutions, thereby dissipating the equity in the property.

(c)The Commissioner acknowledges that the respondent is currently remanded in custody and that this may hinder her attempt to deal with

the property. However, prisoners do have access to communication methods including phone and email, and it would not be difficult for the respondent to arrange the disposal or concealment of property of interest to this litigation.

(d)There is also the potential for the respondent to be granted bail, which may increase the risk of disposal or concealment of the property in question.

(e)The respondent has previously been subject to restraint and forfeiture proceedings. The property restrained was the 81 Taylor Terrace property. Those proceedings were resolved by a settlement after which the respondent forfeited certain funds  and  retained the  property at  81 Taylor Terrace.

[6]    In light of the affidavit evidence, I am satisfied that it is appropriate that the application proceeds on a without notice basis.

[7]    Turning then to the substantive orders. I must believe, on reasonable grounds, that either:

(a)the property over which the orders or sought is “tainted property”, as defined in s 5(1) of the Act:

(a)… 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;

or

(b)the respondent has unlawfully benefitted from significant criminal activity as defined in section 7:

…unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant

criminal activity (whether or not that person undertook or was involved in the significant criminal activity).

[8]    “Significant criminal activity” is defined in s 6 of the Act to include any activity that would amount to offending punishable by a maximum term of five or more years’ imprisonment. This is irrespective of whether the respondent has been charged, convicted or acquitted of the offence.

[9]    Having reviewed the material, I consider there are reasonable grounds to believe that the property is tainted and the respondent has unlawfully benefitted from significant criminal activity for the following reasons, as addressed in the affidavit of Constable Dahdouli:

(a)The respondent faces charges for the possession of methamphetamine for supply, and possession of cannabis for supply. These charges respectively carry a maximum penalty of life or eight years’ imprisonment. The respondent is currently remanded in custody in relation to this offending. She has nine previous convictions for offences against the Misuse of Drugs Act 1975.

(b)Upon the execution of a search warrant (from which the current charges result), a substantial amount of cash was found hidden in the respondent's bedroom, stored very close to controlled drugs. Taking into account her declared income and where the cash was found, it appears unlikely she earned this money through legitimate employment.

(c)There are inconsistencies between the respondent’s declared income and expenditure, and the accumulation of assets.

[10]   Having reviewed the documentation filed by the applicant, I am satisfied that it is appropriate for restraining orders to be made in relation to the specified property, under s 24 and 25 of the Act.

[11]The Court makes restraining orders under s 24 and 25 of the Act as follows.

(a)The following property (collectively, the Property) shall not be disposed of, or dealt with, by any person other than as provided for in this order and is to be under the Official Assignee’s control and custody:

(i)All interests in the property at 81 Taylor Terrace, Tawa, Wellington, registered  in  the  name  of  the  respondent,  Paula Maree Adams, described in the certificate of title WN21A/569, legal description Lot 56 Deposited Plan 20176, other than the interests of Westpac New Zealand Limited under registered mortgage 5415577.3 and the interest of the Legal Service Commissioner; and

(ii)Cash to the value of $68,380.00 located on 30 June 2022 at   81 Taylor Terrace, Tawa, Wellington, and currently held in the New Zealand Police Trust Account.

McQueen J

Solicitors:
Crown Solicitor, Wellington, for the applicant