Commissioner of Police v Allah

[2022] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-333

[2022] NZHC 2463

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under sections 21, 24 and 25

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

ABD ALLAH ABD ALLAH

Respondent

AND

ELENY MELKAMU ZINAW

Interested Party

Hearing:

27 September 2022

Appearances:

V M Rea for the Applicant

No appearance for the Respondent or Interested Party

Judgment:

27 September 2022

JUDGMENT OF PALMER J

Solicitors

Crown Solicitor, Wellington

THE COMMISSIONER OF POLICE v ALLAH [2022] NZHC 2463 [27 September 2022]

What happened?

[1]    On 20 April 2021, the Police pursued a silver Volkswagon travelling north on State Highway 2 near Eketahuna. The pursuit was abandoned due to the Volkswagon’s excessive speed. It subsequently crashed on the corner of State Highway 2 and Mangaoranga Road. The respondent and interested party, his then girlfriend, were in the vehicle. In or around the car, the Police:

(a)seized a blue carry bag containing 725.9 grams of methamphetamine, separated into 10 zip-lock bags, and $229,360 in cash, all of which the respondent said belonged to him;

(b)seized $3,000 in cash from the respondent;

(c)seized $1,000 in cash from the interested party, in which she has indicated an interest but about which she has made no statement, and which Police believe was given to her by the respondent to compensate her for travelling with him from Wellington to Auckland; and

(d)found a loaded firearm, empty snap-lock bags and a cash-counting machine.

[2]    In searching the car on 23 April 2021, the Police subsequently seized $6,459.70 in cash.

[3]    In no way do the respondent’s total declared income and benefit payments match the amount of cash in his possession. Under a search warrant, the phones of the respondent and interested party were seized and data extracted that indicated the respondent was involved in the sale and supply of methamphetamine and other significant criminal activity involving guns and drugs. The respondent faces 16 charges include possession of methamphetamine for supply, eight charges of supplying methamphetamine, and one charge of unlawfully possessing a firearm. He pleaded guilty and is scheduled to be sentenced on 16 November 2022.

Application

[4]    The Commissioner of Police (the Commissioner) applies for asset forfeiture or, alternatively, profit forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act), over the cash seized.

[5]    Having been served, neither the respondent nor interested party has filed any notice of opposition. The applications were set down for formal proof and a copy of the minute doing so was served on the respondent and interested party. On being advised of the date of this hearing, the respondent told the Police the money would be better off in the community.

[6]    Ms Rea, for the Commissioner, submits, on the balance of probabilities, that the cash is tainted property under s 5 of the Act, having been wholly or in part acquired as a result of, or derived from significant criminal activity in which the respondent has been involved and from which he has benefited.

Should the cash be forfeited?

[7]    The respondent has pleaded guilty to drug offences and neither the respondent nor the interested party have chosen to oppose the application. There is ample evidence, in the circumstances in which the cash was seized, the phone data, and the nature of the offences to which the respondent has pleaded guilty, giving rise to the inferences required to satisfy the criteria for asset forfeiture orders in s 50 of the Act. On the balance of probabilities, I am satisfied the cash was acquired as a result of, or directly or indirectly derived from, significant criminal activity. It is accordingly tainted property. I grant the asset forfeiture order, as sought.

Palmer J