Commissioner of Police v Brambila
[2025] NZHC 410
•6 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-3036 [2025] NZHC 410
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
ISREAL ISAAC OSUNA BRAMBILA
Respondent
Hearing: 28 February 2025 Counsel:
E Rangamuwa for Applicant No appearance for Respondent
Judgment:
6 March 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 06/03/2025 at pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
COMMISSIONER OF POLICE v BRAMBILA [2025] NZHC 410 [6 March 2025]
Introduction
[1] The Commissioner of Police (Commissioner) seeks the following orders under the Criminal Proceeds (Recovery) Act 2016 (Act):
(a)a type 1 assets forfeiture order under s 50 of the Act over two sums of cash; and/or
(b)a profit forfeiture order under s 55 of the Act against Mr Brambila; and/or
(c)a restraining order under ss 24 and 25 of the Act over two sums of cash.
[2]The two sums of cash sought to be restrained and/or forfeited are:
(a)$350,000 cash found in room 306, Ibis Budget Hotel, 20 Wyndham Street, Auckland, on 9 February 2023 (Hotel Cash), and all interest accrued; and
(b)$10,000 cash found on Mr Brambila’s person (Brambila Cash), on
9 February, and all interest accrued.
Background
[3] Mr Brambila is a Mexican citizen who first arrived in New Zealand on a three- month tourist visa on 25 December 2022. He stated on his passenger arrival card that he was not carrying cash or cash equivalent of NZ$10,000 (or foreign equivalent) or more.
[4] Police surveillance observed Mr Brambila associating with a person of interest in an existing investigation concerning importation and sale of class A drugs.
[5] A subsequent search of Mr Brambila’s hotel room revealed a black suitcase containing cash later counted and confirmed to be $350,000, a black duffel bag containing blocks of white powder wrapped in plastic food wrapping (later tested and confirmed to be methamphetamine), and various items associated with the dealing of
controlled drugs, including cutting implements, a vacuum sealing machine, plastic bags and a money counting machine.
[6] Mr Brambila said that he did not know who the cash in the hotel room belonged to. He declined to make a statement about the cash found on his person.
[7]Mr Brambila was charged with and pleaded guilty to possession of
13.85 kilograms of methamphetamine for supply. He pleaded guilty and was sentenced on 1 December 2023 to six years’ imprisonment.
The current proceedings
[8] Mr Brambila was served with the application for restraining and civil forfeiture orders on 21 December 2023.
[9] Mr Brambila advised that Mr Lack was his lawyer. Mr Lack advised counsel for the Commissioner that he was aware Mr Brambila was served but had not received formal instructions to act. Mr Lack was provided with a copy of the Application and supporting documentation on 13 February 2024.
[10] There was no appearance by or on behalf of Mr Brambila at the first mention on 16 February 2024. Restraining orders were made and the matter was adjourned for mention on 1 March 2024, to enable Mr Brambila to finalise any instructions for counsel.
[11] There was no appearance by or on behalf of Mr Brambila at the second mention. Accordingly, the Commissioner sought forfeiture of the property. However, Johnstone J considered that the property was “property in which no person has claimed an interest”.
[12]Section 50(4) of the Act provides:
Despite subsection (1), the Court may not make a type 1 assets forfeiture order in relation to property that no person has claimed an interest in, unless the Court is satisfied, on the balance of probabilities, of the following additional matters:
(a)that a restraining order was earlier made in relation to the same property; and
(b)that the restraining order has been in place for a period of at least 1 year; and
(c)that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.
[13]Section 37 (e) of the act provides:
if a restraining order relates to property in which no person has claimed an interest, the restraining order expires on the date that the relevant application for a forfeiture order is determined, which must not be determined earlier than 1 year after the making of the restraining order.
[14] As a consequence of these sections, Johnstone J ruled that the applications for forfeiture could not be determined within one year of the date on which the cash was restrained, being 16 February 2024. The proceeding was listed for mention in the first Criminal Proceeds list after 16 February 2025.
[15]On 12 March 2024, Mr Brambila was served with the restraining orders.
[16] Mr Brambila has taken no steps since being served with the Commissioner’s application for restraining and forfeiture orders in December 2023, nor since being served with the restraining orders in March 2024.
[17] At the third call of this matter on 28 February 2025 there was no appearance for Mr Brambila. The Commissioner invited the Court to grant a type 1 assets forfeiture order and to dismiss the profit forfeiture application.
[18] Section 50(4) applies because Mr Brambila did not claim an interest in the cash. He said he did not know who the Hotel Cash belonged to and declined to make any statement about the cash found on his person.
[19] On notice restraining orders in respect of the cash were made on 16 February 2024. The property has therefore been restrained for over one year.
[20] In order to make an assets forfeiture order under s 50 of the Act, I must be satisfied on the balance of probabilities that the cash is tainted property. Tainted property means any property that has wholly or in part been acquired as a result of significant criminal activity or derived or indirectly derived from significant criminal activity.1
[21]I find that the cash is tainted property because:
(a)Mr Brambila is a Mexican citizen who first arrived in New Zealand on a three-month tourist visa on 25 December 2022. He stated on his passenger arrival card that he was not carrying cash or cash equivalent of NZ$10,000 (or foreign equivalent) or more.
(b)Police surveillance observed Mr Brambila associating with a person of interest in an existing investigation concerning importation and sale of class A drugs. A search of Mr Brambila’s hotel room revealed a black suitcase containing cash later counted and confirmed to be $350,000, a black duffel bag containing blocks of white powder wrapped in plastic food wrapping (later tested and confirmed to be methamphetamine), and various items associated with the dealing of controlled drugs, including cutting implements, a vacuum sealing machine, plastic bags and a money counting machine.
(c)When Mr Brambila was arrested and searched, a bundle of cash secured by rubber bands was found on his person. It was later counted and confirmed to be $10,000.
(d)Mr Brambila was charged with and pleaded guilty to possession of
13.85 kilograms of methamphetamine for supply. He was sentenced on 1 December 2023 to six years’ imprisonment.
(e)There are no Inland Revenue, Ministry of Social Development or bank records associated with Mr Brambila. To the best of the
1 Criminal Proceeds (Recovery) Act 2009, s 5(1).
Commissioner’s knowledge, Mr Brambila has no source of income in New Zealand and has never opened any bank account.
Result
[22] The Commissioner’s application dated 15 December 2023 (Application) is granted. I make a type 1 assets forfeiture orders in respect of the cash described at 2(a) and (b) of the Application, together with any interest that has accrued in respect of that cash since its seizure on 9 February 2023. The combined property now vests in the Crown absolutely and is in the custody and control of the Official Assignee.
Wilkinson-Smith J
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