Commissioner of Police v Bird
[2022] NZHC 2241
•2 September 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2020-443-12
[2022] NZHC 2241
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an application under sections 22 and 24 of the Act
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
MARLON JON BIRD
Respondent
Hearing: On the Papers Counsel:
J E Bourke for Applicant
Judgment:
2 September 2022
JUDGMENT OF McQUEEN J
[1] The Commissioner of Police currently applies on a without notice basis for restraining orders under s 24 of the Criminal Proceeds (Recovery) Act 2009 (the Act).
The orders are sought in relation to the following property:1
(a)a residential property in Walsh Rd including all appliances, all building materials on site all fitting and fixtures already installed and awaiting installation, registered in the name of the respondent (the Walsh Rd property);
(b)cash, totalling $45,793.80 seized from the Walsh Rd property; and
1 Section 18 of the Criminal Proceeds (Recovery) Act 2009 empowers the Commissioner to apply for restraining orders.
COMMISSIONER OF POLICE v BIRD [2022] NZHC 2241 [2 September 2022]
(c)the contents of all bank accounts in the control of the respondent.
[2] 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. 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 destroyed, disposed of, altered, or concealed, if notice were to be given to Mr Bird.2
[3] The affidavits of Constable Usipua Faletolu dated 10 March 2020 (in respect of an earlier but related restraining order application) and 30 August 2022 are filed in support of the application.
[4] As regards the appropriateness of the application proceeding on a without notice basis, Constable Faletolu notes in his 30 August affidavit:
(a)Mr Bird is familiar with the criminal proceeds process. During a previous criminal investigation, Mr Bird concealed his ownership of assets.
(b)Mr Bird has a demonstrated ability to purchase and dispose of assets rapidly; namely through the purchasing, improving and on selling of properties. This is said to indicate Mr Bird’s access to significant resources and assistance which could be employed to destroy, dispose of, alter or conceal the proposed restrained property.
(c)It is evident a third party has access to Mr Bird’s bank accounts, spending near $15,000 from his accounts while Mr Bird has been in prison.
[5] In light of the affidavit evidence, I am satisfied that it is appropriate that the application may proceed on a without notice basis.
2 Criminal Proceeds (Recovery) Act 2009, s 22(1).
[6] Turning then to the substantive orders. I must believe, on reasonable grounds, that 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.
[7] There is no doubt that Mr Bird has engaged in significant criminal activity, as defined under the Act.3 Mr Bird was charged and has pleaded guilty to a number of charges under the Misuse of Drugs Act 1975, including the manufacture of methamphetamine and possession of methamphetamine for supply. He is remanded in custody, with sentencing set down for 8 November 2022.
[8] Having reviewed the material, I consider there are reasonable grounds to believe that the property is tainted for the following reasons:
(a)Mr Bird has a history of purchasing properties and renovating them at haste through the application of cash assets, to then be on-sold. In April 2019, Mr Bird purchased a property under construction (through an inheritance payment) which was then renovated and sold by November 2019. Constable Faletolu notes that the complete cost of the renovation far exceeded the identified cash receipts attributed to the renovation. Mr Bird has since purchased the Walsh Rd property, at which renovations are underway. There are reasonable grounds to believe that Mr Bird is using money obtained through his drug offending to fund the renovations.
(b)There are inconsistencies between Mr Bird’s lack of declared income from 2015 to 2019, unexplained deposits and significant cash seized from the property. This is highly suggestive that both cash and funds
3 Under s 6, “Significant criminal activity” includes any activity that would, if proceeded against as a criminal offence, would be punishable by a maximum term of five years’ or more. I note this is not contingent on a person being charged, convicted, or even acquitted of such offending.
contained in Mr Bird’s bank accounts may have been obtained through his drug offending.
[9] 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 of the Act.
[10]The Court makes restraining orders under s 24 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)An interest in the residential property at 24B Walsh Rd, Westown New Plymouth, including all appliances, all building materials on site all fitting and fixtures already installed and awaiting installation, registered in the name of Marlon Jon Bird. The Walsh Rd property is described in certificate of title TN16/219, legal description Lot 2 and Lot 4 Deposited Plan 6862.
(ii)Cash totalling $45,793.80 located and seized on 24 April 2021 from the Walsh Rd Property belong to Marlon Jon Bird and held in the New Zealand Police Trust Account;
(iii)All funds held in all Westpac accounts in the control of Marlon Jon Bird.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Applicant
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