Commissioner of Police v Beet
[2014] NZHC 1054
•19 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4022 [2014] NZHC 1054
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
KELVIN JAMES BEET First Respondent
BIANCA ANASTASIAH COMINS
Second Respondent
Hearing: 19 May 2014 Counsel:
T Refoy-Butler for Applicant
M Meyrick for Respondents
No appearance for applicant for reliefJudgment:
19 May 2014
ORAL JUDGMENT OF KATZ J
Solicitors: Meredith Connell, Auckland
Berman and Burton, Auckland
THE COMMISSIONER OF POLICE v BEET & COMINS [2014] NZHC 1054 [19 May 2014]
Introduction
[1] On 24 February 2011 the police seized $11,021.50 in cash located during a search of a silver Subaru motor vehicle. Subsequently, on 24 May 2012 a further
$31,800.00 in cash was seized during a search of a grey BMW motor vehicle. The Commissioner of Police says that the cash seized is the proceeds of significant criminal activity, primarily drug dealing activity. He applies, under the Criminal Proceeds (Recovery) Act 2009 (Act) for asset forfeiture orders1 or, in the alternative, profit forfeiture orders.2
[2] The respondents were each either the driver or passenger in the vehicles from which the cash was seized. They initially filed a notice of opposition to the Commissioner’s applications. That notice was struck out, however, as a result of the respondents failure to comply with an “unless” timetable order for the filing of affidavits in opposition. Counsel for the respondents, Mr Meyrick, attended Court this morning, as a courtesy, to explain the background to the respondents’ failure to file affidavits and to represent his clients in relation to costs issues.
[3] A third party, Mr Mark Hazelwood, claimed that he had given the respondents $10,000 to purchase a car on his behalf and that that sum was part of the
$11,021.50 seized by the police on 24 February 2011. He brought an application for relief from forfeiture, as an interested party.3 Mr Hazelwood reached an agreement with the Commissioner prior to the hearing not to pursue his application for relief on the basis that the Commissioner will not seek costs against him.
[4] The matter proceeded today by way of formal proof. I have concluded that the grounds for the making of asset forfeiture orders in the sum of $11,021.50 and
$31,800.00 respectively have been made out, for the reasons I set out below. It is therefore unnecessary to consider the Commissioner’s alternative, profit forfeiture,
application.
1 Section 50.
2 Section 55.
3 Persons (other than a respondent) claiming an interest in property sought to be forfeited can apply for relief under ss 61- 69 of the Act. Section 66 provides for relief “that the Court considers appropriate” to be granted if, on the balance of probabilities, an applicant proves that he has an interest in the property and he has not unlawfully benefited from the significant criminal activity in question.
Asset forfeiture orders
[5] Pursuant to s 50(1) of the Act, if the Court is satisfied, on the balance of probabilities, that specific property is tainted property, the Court must make an assets forfeiture order in respect of that property. The phrase “tainted property” is defined in s 5(1) of the Act as meaning any property that has, wholly or in part, been either:
(a) acquired as a result of significant criminal activity; or
(b) directly or indirectly derived from significant criminal activity.
[6] “Tainted property” includes any property that has been acquired as a result of, or directly or indirectly derived from, more than one activity if at least one of those activities is a significant criminal activity.
[7] “Significant criminal activity” is defined in s 6 of the Act as an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending:
(a) that consists of, or includes, one or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds or benefits of a value of $30,000 or more have directly or indirectly, been acquired or derived.
Was the cash seized on 24 February 2011 and 24 May 2012 tainted property?
[8] In addition to the $11,021.50 cash found in the Subaru vehicle during the search on 24 February 2011 the police also located a pipe for smoking methamphetamine, 22.6 grams of pseudoephedrine (packed in a bag on which the second respondent, Ms Comins’, DNA was found), two sets of scales, and a tin containing methamphetamine residue. A subsequent search of Ms Comins’ home address in Hamilton revealed notebooks containing tick lists, calculations related to the sale of methamphetamine, cell phones, and a syringe.
[9] By way of explanation, the first respondent, Mr Beet advised police that the cash was from proceeds of selling a vehicle, but he could not remember the registration number or whom he had sold it to. Ms Comins, on the other hand, indicated to Detective Burrell that the cash was Mr Hazelwood’s, a friend, who had given Mr Beet the money to buy a car.
[10] In addition to the cash seized during the search of the BMW on 24 May
2012, the police also found three small bags of methamphetamine under the front passenger seat and a wad of empty zip lock bags. Cannabis, a camouflage knife, snap lock bags and a capped intravenous needle were also located in the vehicle. Mr Beet and Ms Comins were also both in possessions of knives.
[11] Mr Beet indicated to the police on that occasion that the cannabis, methamphetamine, cash, and two knives (one in his jersey, and the one in the vehicle) were his. He stated that the cash was casino winnings. In a subsequent unsworn affidavit he said some of the cash was casino winnings, some was cash his father gave him to give to his children, and he was unsure where the balance had come from. No supporting documentation was provided, nor was any supporting evidence filed by Mr Beet’s father. Mr Beet’s affidavit remained unsworn.
[12] I am satisfied, on the balance of probabilities, that the cash seized on both occasions is tainted property, for the following reasons:
(a) The sums of cash seized are large and it is unusual to deal with large amounts of cash.
(b)The respondents were both beneficiaries at the relevant time and did not have any established lawful sources of income from which such large amounts of cash could have been derived.
(c) The circumstances in which the cash was located are indicative of it being the result of significant criminal activity.
(d)Mr Beet pleaded guilty and was convicted and sentenced to nine months’ imprisonment on the following charges stemming from the items found in the car on 24 February 2011:
(i)possessing pseudoephedrine for the manufacture of methamphetamine; and
(ii)possession of utensils for the consumption of methamphetamine.
(e) Mr Beet pleaded guilty and was convicted of possession of methamphetamine for supply arising out of the 24 May 2012 incident. He was sentenced to three years 11 months’ imprisonment.
(f) The explanation the respondents offered to the police for possession of the cash lacks credibility, as does the evidence filed on behalf of Mr Hazelwood. Text messages between Mr Hazelwood and Ms Comins are indicative of drug dealing activity rather than money being provided for the purchase of a car. Further, they suggest the fabrication of a story designed to mislead the police as to the source of
the cash seized in February 2011.
Result
[13] I make asset forfeiture orders sought pursuant to s 50 of the Act. In particular:
(a) the sum of $11,021.50 cash seized by the police on 24 February 2011;
and
(b) the sum of $31,800 cash seized by the police on 24 May 2012;
vests in the Crown absolutely and is to be vested in the Official Assignee’s
custody and control.
[14] I dismiss the application for relief by Mr Hazelwood.
[15] Finally, as Mr Meyrick has advised the Court today that the respondents are legally aided, costs are to lie where they fall.
Katz J
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