Commissioner of Police v Bigy

[2017] NZHC 1185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2964 [2017] NZHC 1185

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

SAMAN AHMAD KHAN BIGY Respondent

Hearing:	1 June 2017
Appearances:	L Fraser for the Crown No appearance for the Respondent
Judgment:	1 June 2017

ORAL JUDGMENT OF MUIR J

Solicitors:

L Fraser, Meredith Connell, Auckland

Copy to: Respondent

COMMISSIONER OF POLICE v KHAN BIGY [2017] NZHC 1185 [1 June 2017]

Introduction

[1]      The  Commissioner  of  Police  (the  Commissioner)  applies  for  an  assets forfeiture  order  against  the  respondent  under  s 50  of  the  Criminal  Proceeds (Recovery) Act 2009 (the Act).

[2]      The Commissioner does so in respect of a cash sum of $60,840 seized by the police during a search of a property occupied by the respondent on 4 December

2013.

The procedural history

[3]      The application was first called in the Duty Judge list on 7 December 2016 at which time restraining orders were made by consent.  Counsel then engaged for the respondent indicated, however, that the forfeiture order sought by the Commissioner would be opposed.  Accordingly I made timetable orders requiring the respondent to file and serve his notice of opposition to the application and evidence in support by

27 January 2017.

[4]      That order was not complied with.

[5]      The matter was next called on 23 February 2017 when counsel sought an extension of time for the filing of the opposition and affidavits.   Justice Fogarty granted one further month in which to do so.  Effectively therefore Mr Khan Bigy was allowed two months for compliance beyond the date specified in my orders dated 7 December 2016.

[6]      On 2 March 2017 a notice of opposition was filed in terms alleging that the Commissioner had failed to demonstrate on the balance of probabilities that the cash was tainted property.  No evidence was filed in support of the notice of opposition.

[7]      On 19 April counsel for Mr Khan Bigy advised the Court that his client had been declined legal aid and was unable to fund an opposition.  Accordingly, counsel sought leave to withdraw.

[8]      The matter next came before the Court on 27 April 2017 when leave to withdraw was granted.  The Commissioner sought an asset forfeiture order that day. Justice Wylie directed that the matter be adjourned to the Duty Judge list today on a basis recorded at [7] of his minute.  In particular his Honour noted that:

…  if  Mr  Khan  Bigy  has  not  taken  any  steps  to  support  his  notice  of opposition by that date by filing supporting affidavits, it is likely that the assets forfeiture orders sought by the Commissioner would then be made.

[9]      His Honour directed that a copy of his minute be served on Mr Khan Bigy, which occurred on 3 May 2017.  Detective Kemsley has filed an affidavit of service in that respect.  The affidavit of service records Mr Khan Bigy advising him “that he had receipts for all the money police were seeking to forfeit to the Crown”.

[10]     No affidavit has been filed by Mr Khan Bigy since service of the minute.  I

consider it appropriate therefore to determine the Commissioner’s application.

Mr Kahn Bigy’s arrest and conviction

[11]     On 4 December 2013 the police executed a search warrant at 6A St Leonards Road, Auckland, where Mr Khan Bigy was located and arrested.  In his bedroom was a wallet containing cash and a toiletry bag containing various drug paraphernalia.  In a downstairs room was located a green bag containing a pile of $20 and $100 notes, in total comprising $60,840 in cash.

[12]     On 11 August 2015 Mr Khan Bigy was convicted in the District Court at

Manukau following trial by jury on the following charges:

(a)       possession of methamphetamine for supply (x2); (b)   supply of methamphetamine (x2);

(c)      possession of pseudoephedrine for supply; and

(d)      supply of pseudoephedrine.

[13]     He was sentenced to four years and six months’ imprisonment.

[14]     Mr Khan Bigy appealed both his conviction and sentence.  On 6 December

2016 the Court of Appeal dismissed both appeals.

[15]     Mr Khan Bigy’s convictions related to the supply of two ounces of finished methamphetamine and five sets of ContacNT containing 450 grams of pure pseudoephedrine.

[16]     In his affidavit in support of the forfeiture orders Detective Taylor deposes that, at the relevant time, methamphetamine had a value of approximately $17,000 per ounce and ContacNT approximately $10,000 per set.  Accordingly, he deposes that the approximate sale price of the drugs for the possession and supply of which Mr Khan Bigy was convicted was approximately $84,000.

Tainted property

[17]     In relation to Mr Khan Bigy’s financial circumstances Police inquiries have revealed:

(a)      That in the seven years previous to the Commissioner’s application Mr Khan Bigy’s declared total gross income was $250 only, this sum having been reported in the tax year ending 31 March 2011.

(b)Mr Khan Bigy had not previously been in receipt of any state funded benefit.

(c)      Of the bank accounts held in his name only one – with the ANZ – held a positive balance, being $37.04.  Another account with the ASB did show  some  minimal  day-to-day  living  expenditure  prior  to  19

December 2014.   Detective Taylor concludes, however, that the financial records of Mr Khan Bigy suggest he relied substantially on cash to fund his lifestyle.

(d)There is nothing in any of the financial records which the police have obtained  which   provides  information   as  to   the  source  of  the

$60,840.00 in cash seized at the time of Mr Khan Bigy’s arrest.

[18]     Having regard to this background I am satisfied that the Commissioner has established on the balance of probabilities that the monies are tainted property for the purposes of the Act.  In coming to that conclusion I am particularly influenced by:

(a)      the correlation between the sum of cash identified at Mr Khan Bigy’s home and the value of the drugs Mr Khan Bigy was convicted of supplying; and

(b)      the absence of any evidence as to a legitimate source of that cash.

Result

[19]     I order that the cash to the value of $60,840 seized during the execution of the search warrant at the home of Mr Saman Ahman Khan Bigy at 6A St Leonards Road,  Mt  Wellington, Auckland  on  4  December  2013  plus  any  interest  earned thereon vests in the Crown absolutely and be under the Official Assignee’s custody and control.

[20]     I direct that a copy of this judgment be forwarded by the Registrar to Mr

Khan Bigy at the Hawkes Bay Regional Prison, 138 Mangaroa Road, Bridge Pa, Hastings 4174.

Muir J