Commissioner of Police v Browne
[2020] NZHC 484
•11 March 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-315
[2020] NZHC 484
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
ELDER BROWNE
First Respondent
LORRAINE FRANCES EDWARDS
Second Respondent
Hearing: 10 March 2020 Counsel:
K South for Applicant T Clee for Respondents
Judgment:
11 March 2020
JUDGMENT OF CHURCHMAN J
Background
[1] By application dated 10 June 2019, the Commissioner of Police (the applicant), applied on notice for a restraining order in respect of two sums of money. Firstly:
(a)$10,695 in cash seized from 41 Gibbs Drive, Woodend, North Canterbury on 22 June 2016; and
(b)$24,850 in cash seized from a Mazda car, registration no. GHN 241 on 16 March 2019.
[2] The grounds upon which the order was sought is that the property was “tainted property” and that Elder Browne and Lorraine Frances Edwards (the respondents) have unlawfully benefitted from significant criminal activity.
COMMISSIONER OF POLICE v BROWNE & ANOR [2020] NZHC 484 [11 March 2020]
[3] The application was supported by an affidavit from Detective Duncan Bull dated 5 June 2019.
[4] On 18 September 2019, a notice of opposition was filed on behalf of the respondents. That denied that either sum of cash was “tainted property” and that the respondents had unlawfully benefitted from significant criminal activity.
The applicant’s case
[5] The applicant asserted that he had reasonable grounds to believe that the two sums of cash were tainted by having been acquired in whole, or in part, as a result of significant criminal activity, or that the sums were indirectly derived from significant criminal activity.
[6] The asserted “significant criminal activity” was said to be possession of methamphetamine for supply and the supply of methamphetamine within the permitted relevant period of seven years before the application for restraint.
[7] The facts relied upon as providing a basis for the “reasonable grounds to believe” were that:
(a)the first respondent, Mr Browne, pleaded guilty to charges of possession of methamphetamine and possession of a Black Mossberg Pump Action shotgun and ammunition arising out of the search on 22 June 2016 at 41 Gibbs Drive, Woodend, Waimakariri, when the
$10,695 cash was seized. He was sentenced to 10½ months’ imprisonment on those charges;
(b)a residual quantity of methamphetamine and four cellphones were found in the toilet at 41 Gibbs Drive, Woodend on 22 June 2016. The cellphones belonged to Mr Browne and the circumstances in which they were found supported the inference that:
(i)he had attempted to flush a larger quantity of methamphetamine down the toilet; and
(ii)he had placed the cellphones in the toilet because they were phones he had used in relation to the supply of methamphetamine and he wished to avoid the information on the phones being detected.
(c)the $10,695 was found in various amounts in various locations in a room which was said to be the joint bedroom of both respondents;
(d)when asked for an explanation as to how she had acquired the $10,695 which she claimed was her property, Ms Edwards’s response was that she had earnt the money, but it was not something that you receive receipts for;
(e)the respondents had not denied that they were in a domestic relationship at the time;
(f)a statutory declaration from the first respondent dated 29 June 2018 referred to the money having been “confiscated from my home on 22 of June 2016”;
(g)some $5,000 of the money was found in a “Tarocash” XXL jacket in a wardrobe in the bedroom;
(h)some $4,800 was found in a plastic bag under the mattress in the bedroom;
(i)some $850 was found in a black handbag in the bedroom;
(j)that Mr Browne was a member of the Tribesmen Motorcycle Gang who were known to be extensively involved in methamphetamine dealing;
(k)that as at June 2016, Mr Browne was a beneficiary and had been for some considerable time previously. He also spent time in prison, where he would not have been in receipt of any income, for the June 2016 charges;
(l)Ms Edwards was also a beneficiary;
(m)neither was able to point to any credible explanation as to how the cash had been acquired;
(n)Ms Edwards had changed her story about how much of the money was hers, initially only claiming $5,000;
(o)similar grounds were advanced in relation to the sum of $24,850 seized on 16 March 2019 from the Mazda car;
(p)the cash was in a bag which also contained Mr Browne’s passport and birth certificate;
(q)no credible explanation was offered by Mr Browne who said he was “holding it for a friend” whom he declined to name;
(r)in addition to the matters relevant to the other sums, it was said that Mr Browne appeared on the companies’ register as a shareholder in a company called “Moneyman Ltd” which had since been removed. The sole director of that company was said to be one Jason Brian Victor Hamerton who was said to have an extensive list of drug-related convictions including those involving methamphetamine;
(s)both Mr Browne and Ms Edwards were still beneficiaries as at March 2019, yet substantial unexplained deposits had been made into Ms Edwards’ BNZ bank account totalling some $70,141 in the period 1 April 2016 to 31 March 2019; and
(t)there were also large cash deposits into Mr Browne’s bank account in the period 1 April 2016 to 18 April 2017 which were inconsistent with his sole income being the benefit.
[8] The applicant asserts that the Court is able to draw an inference from all of these factors that the applicant had reasonable grounds to believe that all of the cash
was tainted and had been acquired, in whole, or in part, as a result of significant criminal activity directly, or indirectly.
The respondents’ case
[9] It was submitted that Ms Edwards had claimed ownership of the monies seized on 22 June 2016.
[10] It was submitted that based on Ms Edwards’ comments referred to in [7](d) above, the detective who questioned her about the source of funds, understood she was asserting that the money was obtained through prostitution, and it was implied that this could provide an explanation that counted the assertion that the money came from methamphetamine dealing.
[11] It was claimed that the cash was “… found in portions under her bed, in her jacket pocket, in her handbag, and in her bathroom.”
[12] Mr Clee also submitted that, in relation to her explanation for the funds, she was under no legal obligation to provide any further information.
[13] Mr Clee’s submissions focused heavily on a number of provisions in the Search and Surveillance Act 2012. This was the Act pursuant to which the cash sums were seized. Mr Clee relied on ss 150 and 151 of the Act.
[14] It was submitted that the applicant had filed no evidence that Ms Edwards had at any time been in possession of, used, or in any other way involved with methamphetamine, or its supply. He asserted that there was no evidence that Mr Browne was the owner of the money or that he had supplied it to Ms Edwards. It was also asserted that there was no evidence that Ms Edwards had any knowledge of Mr Browne’s activity, or had participated in his activity.
[15] It was submitted that there was no evidence regarding the nature of the relationship between Mr Browne and Ms Edwards as at 22 June 2016 to allow any inference to be drawn with Ms Edwards’ knowledge or involvement in any activity of Mr Browne.
[16] It was also submitted that “no evidence is filed rebutting the understanding of Detective Owen that it was earned through prostitution”.
[17] Mr Clee also pointed to the delays in the applicant commencing these proceedings.
Factual findings
[18] The assertion that Ms Edwards has claimed ownership of the money seized on 22 June 2016 is correct but needs to be seen in light of the fact that initially Ms Edwards only claimed part of the funds and Mr Browne also filed a statutory declaration claiming that all of the funds were his.
[19] The assertion that the cash was found under Ms Edwards’ bed, in her jacket pocket, in her handbag and in her bathroom is an exaggeration. Given that there was no dispute that the parties were in a relationship at the time, and Mr Browne filed a statutory declaration saying that the address was his “home”, it seems more appropriate to describe the bed as their joint bed.
[20] So far as the jacket pocket is concerned, the jacket as an XXL jacket. Mr Clee identified for the Court that both Mr Browne and Ms Edwards were present in Court, although neither of them gave evidence. Having observed them, it seems improbable that an XXL jacket belonged to Ms Edwards and much more likely that it belonged to Mr Browne.
[21] I accept that the $850 was found in a black handbag which is more likely to have belonged to Ms Edwards than Mr Browne. However, given that the parties were a couple that sheds little light on its source.
[22] So far as the money found in the bathroom is concerned, that was $45 found in a downstairs bathroom. It is not clear that this was Ms Edwards’ bathroom. There were a number of other adult occupants in the house including one in whose bedroom
$8,000 was located. That sum was not attributed to either of the respondents and was returned to the person in whose bedroom it was found.
[23] In relation to the claim that there was insufficient evidence of the nature of the relationship between Mr Browne and Ms Edwards as at 22 June 2016 to draw an inference that Ms Edwards knew of any activity Mr Browne might have been involved in, it was not disputed that the parties were in a domestic relationship at that time and that relationship has continued and existed as at 16 March 2019. There was evidence that correspondence addressed to Mr Browne was found in the bedroom where the money was found; and that the shotgun and ammunition which he acknowledged ownership of were found at the property. These are all matters that support an inference that Ms Edwards is likely to have known what Mr Browne was involved in.
[24] In relation to the claim that Detective Owen “understood” that Ms Edwards had earned the $10,695 through prostitution, Detective Owen, unlike Detective Bull, was not called by Mr Clee for cross-examination. Nothing in evidence before the Court indicates that Detective Owen believed that Ms Edwards had earned the $10,695 (or any other sum) through prostitution. At best for the respondents, his statement expressed that this was his understanding of the enigmatic words used by Ms Edwards by way of explanation as to how she came by the money.
The law
[25]Section 150(1) of the Search and Surveillance Act 2012 provides:
A thing seized or produced must, if it is not required for investigation or evidential purposes, or unless it is liable to forfeiture to the Crown … be –
(a) returned to its owner or the person entitled to possession. (Bolding added)
[26]Section 151(1) of the Search and Surveillance Act 2012 provides:
A seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a Court or otherwise) be held in the custody of the person who exercised the search power or that person’s employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance with s 90(2) (except while it is being used in evidence or is in the custody of any Court) until the first of the following occurs:
(a)a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced:
…
(d) ifproceedings for an offence have not been commenced before the date that is six months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a Court under s 153 …
[27] Both of these sections expressly provide that if something seized is liable to forfeiture to the Crown, it may be retained. In those circumstances, the fact that a decision was made not to bring proceedings for an offence in respect of which the thing was seized or produced, is irrelevant. Likewise, the fact that six months has passed after the thing was seized does not render the holding of the object unlawful. It is not a precondition to seizure or forfeiture under the Criminal Proceeds (Recovery) Act 2009 (CPRA) that a criminal charge needs to be, or have been, laid in respect of the item seized.1
[28] The real issue for decision in this case is what the effect is of the applicant, once the $10,695 was seized, not promptly applying for a restraining order in respect of it but waiting nearly three years until 10 June 2019.
[29] There does not seem to be anything in the CPRA that imposes a particular time limit by which the applicant must commence proceedings seeking a restraining order.2
[30] The Police appeared to have formed the view that the $10,695 seized from 41 Gibbs Drive on 22 June 2016 was tainted as being the proceeds of significant criminal activity at or about the time that it was seized.
Analysis
[31] In the circumstances, particularly given the presence of the shotgun and ammunition at the property, Mr Browne’s involvement with the Tribesmen Motorcycle Gang who are known to be heavily involved in methamphetamine, the presence of the residual methamphetamine and the four cellphones in the toilet, and the lack of credible alternative explanations for the presence of large quantities of cash
1 Criminal Proceeds (Recovery) Act 2009, s 15.
2 Ms South in oral submissions referred to a seven-year limit but that is found in s 5 of the CPRA. This is the definition section in the CPRA and the definition of “relevant period of criminal activity” refers specifically to profit forfeiture orders rather than restraining orders.
in the bedroom of two beneficiaries, the inference that the cash was tainted and derived from a methamphetamine dealing, is a reasonable one for the Police to have drawn.
[32] Despite Mr Clee’s submissions to the contrary, it is clear that no member of the Police ever accepted that the money was the result of prostitution by Ms Edwards.
[33] If the Police had, at any time after seizing the cash, formed the view that there was a credible alternative explanation for the presence of the cash that did not involve significant criminal activity, they would have been obliged to promptly return it to the respondents and, if they were unsure as to which of the two respondents actually owned it, given that both claimed ownership of the total sum, they could have applied to the District Court under s 154 of the Search and Surveillance Act 2012.
[34] There was no delay following the seizure of the $24,850 on 16 March 2019 with the application for the restraining order being filed within three months of the seizure.
[35] The fact that there were two large unexplained cash sums seized on separate occasions supports the inference that both sums are likely to be the proceeds of methamphetamine dealing. There was no submission made by Mr Clee that the
$24,850 was the proceeds of prostitution by Ms Edwards and no plausible explanation advanced by Mr Browne that would justify his ownership of it.
[36] Mr Clee submits that there is no evidence of possession, use or other involvement with methamphetamine by Mr Browne since 22 June 2016. This submission ignores the obvious inference that can be drawn from the fact that Mr Browne had in his possession a sum of cash that no person whose sole source of income was a benefit would be expected to have. Mr Browne was still a member of the Tribesmen Motorcycle Gang who are known to be involved in the methamphetamine trade; he had pleaded guilty to possession of the shotgun and ammunition which are the sort of things that a dealer in methamphetamine would have in their possession; and he had also been convicted of possession of the residual amount of methamphetamine found in the toilet, along with the four cellphones on 22 June 2016. The presence of multiple cellphones in the same toilet that the residual
methamphetamine that Mr Browne pleaded guilty to possessing would support an inference that he was, at that stage, a methamphetamine dealer with the ownership of multiple cellphones and an attempt to render the data on them unrecoverable, supporting an inference of drug dealership. The fact that some three years had passed between the two incidents is of little relevance. The circumstances of the 2016 seizure provided important context to the 2019 incident.
Restraining order
[37] The submissions on behalf of the respondents focused on what was said to be a lack of evidence and proof. This submission ignores the fact that a restraining order is a temporary order and requires “reasonable grounds to believe” rather than “proof that the target has unlawfully benefitted from significant criminal activity”.3
[38] A restraining order has been described as a “holding device” of limited duration.4
[39] Under s 25, the Court is not making a finding that the respondent has in fact unlawfully benefitted from significant criminal activity. It is determining whether there were reasonable grounds to believe that the respondents have unlawfully benefited from significant criminal activity.
[40] The fact that only part of a sum of money or other property received is tainted does not prohibit a restraining order being made.5
[41] For the reasons set out above, I am satisfied that there are reasonable grounds to believe that both sums of cash seized are tainted and that the respondents have benefitted from significant criminal activity in respect of them.
[42] There is no dispute that the cash was under the control of either one or both of the respondents.
3 Vincent v Commissioner of Police [2013] NZCA 412 at [47].
4 Vincent v Commissioner of Police above n 3 at [37].
5 See Commissioner of Police v Doorman HC Nelson CIV-2010-442-169, 15 December 2011.
[43]Accordingly, I make the following orders:
(a)that the sums of $10,695 and $24,850 referred to in the application are not to be disposed of, or dealt with, other than as provided for in this restraining order; and
(b)that the sums are to be under the Official Assignee’s custody and control pending further order of the Court.
Churchman J
Solicitors:
Crown Solicitor’s Office, Christchurch for Applicant cc: T Clee, Barrister, Auckland for Respondents
3