Commissioner of Police v CF

[2025] NZHC 1506

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2025-443-13 [2025] NZHC 1506

UNDER  the Criminal Proceeds (Recovery) Act 2009

INTHE MATTER             of an application under ss 43, 44, 49 and 50 of the said Act

BETWEEN  THE COMMISSIONER OF POLICE

Applicant

AND  CF

Respondent

Hearing:                   10 June 2025 Appearances:        J E Bourke for Applicant

R Nye-Wood, on limited retainer for Respondent

Judgment:                10 June 2025

ORAL JUDGMENT OF McHERRON J

(Application for Forfeiture Order)

What is this case about?

[1]                 On 4 March 2025, the Commissioner of Police (Commissioner) applied on- notice for a type one asset forfeiture order under ss 43, 44, 49 and 50 of the Criminal Proceeds (Recovery) Act 2009 (CPR Act), in respect of cash totalling $27,383.20 in New Zealand currency and $300 in United States currency, found in the respondent CF’s room at a New Plymouth motel.  These  funds  are  currently  held  by  the  New Zealand Police.

[2]                 The Commissioner’s application is supported by a comprehensive affidavit of Police Specialist Investigator Anna Higgins.

THE COMMISSIONER OF POLICE v CF [2025] NZHC 1506 [10 June 2025]

[3]                 That affidavit sets out information obtained by Ms Higgins through her own enquiries as well as information received from the police criminal investigation team.

[4]                 Relevantly, Ms Higgins deposes that on 26 October 2024, the respondent arrived at the New Plymouth motel and paid in cash for three nights’ accommodation. On the evening of 28 October 2024, management of the motel “ejected” the respondent from the motel. The police obtained the following statement from the hotel manager:

We noticed four different males coming and going from her room, Unit 3 and we became concerned that she was using our premises to solicit prostitution services.

On the evening of 28 October 2024 I knocked on the room door not long after a male had entered and observed the customer covered with only a towel.

[5]                 In leaving the motel, the respondent forgot to take a bag containing her cash. She returned to the motel the following morning to get it. The manager let her look for it in the room but she could not find it. Later, she remembered where she left it and rang the motel to ask the manager to check under the mattress. The manager’s wife/co-manager found the bag of cash but, instead of contacting the respondent to arrange for its return, took it to the New Plymouth Police Station on 29 October 2024. When the respondent rang the manager again to ask for the money, he told her it had been handed to the police.

[6]                 Just after 4pm that day, the respondent, supported by her friend, visited the New Plymouth Police Station to enquire about the money she had left in her motel room.

[7]                 When the respondent went to collect the money from the police station, she told police that she had brought $10,000 cash into New Zealand with her from Brazil. She said the remainder of the money was obtained when she sold small items of jewellery to her friend. However, the respondent had no receipts for the sale of jewellery or any photographs of herself wearing the jewellery she allegedly sold. When police spoke to the friend he denied having purchased any jewellery from the respondent. Later, the respondent changed her explanation for the origin of the cash. She told police she obtained additional cash from selling various items to Australians and a Christchurch couple in August 2024. However she had no receipts for any of

these transactions or records of payment. Moreover, the respondent offered no explanation for the amount of cash handed to police exceeding the value of these items plus the amount of money she allegedly brought into New Zealand.

[8]                 Detective Paterson’s job sheet from that day records the respondent’s “explanation for the cash” and that he “was not satisfied with the explanations she provided for the legitimacy of the cash”.

[9]                 Police subsequently commenced an investigation of the respondent’s visitor visa, according to which she was not entitled to work in New Zealand, but which she allegedly breached.

[10]             The respondent is a 39-year-old Brazilian national. She entered New Zealand on 11 June 2024 for tourism purposes and stayed in several locations including Auckland, Wellington, Tauranga, New Plymouth, and Queenstown. On 12 November 2024 the respondent left New Zealand and returned to Brazil.

[11]             Ms Higgins affidavit also summarises an extensive analysis of communications from the respondent’s cell phone. The Commissioner submits this data confirms she worked as a sex worker in New Zealand from 18 August 2024 to 31 October 2024, but that this data is unlikely to be an exhaustive record of the respondent’s work in New Zealand.

[12]             Police spoke to two individuals who had been the respondent’s customers. One of them did not pay the respondent after he had been told to leave the motel by management before using her services on 28 October 2024. The other customer provided an affidavit in which he deposed he made several payments to the respondent’s Wise account for sexual services and for her to spend time with him. In total, this customer transferred approximately $6,500 into the respondent’s Wise account.

[13]             In addition to this amount, Ms Higgins’ affidavit refers to other transactions from various sources to the respondent’s Wise account between 7 July 2024 and

2 October 2024 totalling $16,784.68. The Commissioner asks the Court to infer that these funds were obtained by the respondent from her provision of sexual services.

[14]             Ms Higgins’ affidavit also refers to the relevant immigration chronology and visa correspondence for the respondent. She notes that Brazil has a visa waiver agreement  with  New Zealand  meaning  Brazilian  passport  holders  can   visit  New Zealand for tourism purposes without a visitor visa for up to three months, after which they must apply for a visa.

[15]             The respondent arrived in New Zealand on 11 June 2024 and was granted a three month visitor visa after completing a declaration card in which she selected her main reason for visiting was “visiting friends/relatives”.

[16]             Prior to the expiry of the respondent’s initial visitor visa, she applied online for an additional visitor visa. She attached a digitally signed declaration dated 26 August 2024. This application recorded the purpose of the respondent’s visit as tourism and vacation. The respondent’s online visa application included a declaration that the information provided must be true and correct and that the applicant must inform Immigration New Zealand of any change of circumstances such as a change in employment or partnership status. The declaration stated it was an offence under the Immigration Act 2009 to provide false or misleading information in relation to a visa application.

[17]             On 7 October 2024, based on the material that the respondent provided, Immigration New Zealand granted her approval for a visitor visa entitling her to stay in New Zealand until 10 December 2024. That visa had several conditions including that the holder must not undertake employment in New Zealand.

[18]             Ms Higgins’ affidavit states that in none of the correspondence the respondent supplied to Immigration New Zealand did she record any  intention  to  work  in  New Zealand. Nor did the respondent advise Immigration New Zealand when she commenced work as a sex worker during her visitor visa period.

Significant criminal activity

[19]Significant criminal activity is defined in the CPR Act as:

6       Meaning of significant criminal activity

(1)In this Act, unless the context otherwise requires, significant criminal activity means 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, 1 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 the threshold amount or more have, directly or indirectly, been acquired or derived.

(2)A person is undertaking an activity of the kind described in subsection

(1) whether or not—

(a)      the person has been charged with or convicted of an offence in connection with the activity; or

(b)      the person has been acquitted of an offence in connection with the activity; or

(c)      the person’s conviction for an offence in connection with the activity has been quashed or set aside.

(3)Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).

[20]             As it is not alleged that the respondent engaged in any activity punishable by a maximum term of imprisonment of five years or more, the Commissioner instead relies on the second limb of s 6(1), that the respondent engaged in activity that if proceeded against as a criminal offence would amount to offending from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived. The threshold amount for the purposes of s 6(1)(b) is $30,000.1

[21]             Mr Nye-Wood advised that Baywide Community Law Service had accepted service of the Commissioner’s application and had conveyed this to the respondent. He also advised during the hearing that in correspondence with the police they had

1      Criminal Proceeds (Recovery) Act 2009, s 5(1).

informed him or his colleagues that an application for restraint of the respondent’s cash was forthcoming. Mr Nye-Wood advised that this communication was received by Baywide Community Law Service in or around November 2024. Mr Nye-Wood said that while he had discussed the forfeiture application with the respondent, she has not given instructions to oppose the application nor to appear at the hearing of the application. Accordingly, Mr Nye-Wood advised that he anticipated the application would proceed by way of formal proof, subject to the respondent deciding instead to take further steps independent of Baywide Community Law Service. However, Mr Nye-Wood appeared at the hearing and I am grateful to him for doing so. The Court has received no information to suggest that the respondent intends to take further independent steps.

[22]             The Commissioner submits the respondent’s action of working as a sex worker in New Zealand on a holiday visa has breached s 342(1) of the Immigration Act 2009 which provides:

342    Provision of false or misleading information

(1)Every person commits an offence against this Act who—

(a)      makes any statement, or provides any information, evidence, or submission, knowing that it is false or misleading in any material respect, in support of—

(i)any application or request (whether by that person or by another person) for a visa or entry permission, or any expression of interest in a visa; or

(ii)any request for variation, waiver, or cancellation of the conditions of a visa; or

(iii)any appeal or application in the nature of an appeal to the Minister or the Tribunal; or

(b)      produces or surrenders any document or supplies any information to an immigration officer or a refugee and protection officer knowing that it is false or misleading in any material respect; or

(c)      completes any document required as part of a border requirement in a manner that the person knows to be false or misleading in any particular, or fails to comply with any of his or her other responsibilities under section 103.

(2)To avoid doubt, no proceedings under subsection (1)(b) may be brought if the documents or information are supplied in the circumstances to which Article 31.1 of the Refugee Convention applies.

[23]             The Commissioner also submits that the respondent was in breach of s 19 of the Prostitution Reform Act 2003, however this breach is not relied on as supporting the application given that s 19 is not an offence provision.

[24]             The Commissioner submits that the amount of money left at the motel plus the additional funds transferred by the customer who provided an affidavit in the sum of

$6,500, and the other funds transferred to the Wise account, meets the definition of and surpasses the $30,000 threshold amount for significant criminal activity. As such, the portion of that property that has been retained by police after having been left by the motel manager is tainted property as defined in s 5(1) of the CPR Act.

My assessment

[25]             No restraining order was sought by the Commissioner in relation to the cash despite the advice given by police to Mr Nye-Wood or his colleagues. While restraint is not necessary before the Court makes a forfeiture order,2 it is necessary if there is a risk of the property being disposed of before forfeiture proceedings are finally determined. As Dr Heather McKenzie notes:3

Restraint might not be necessary where police have already seized property, although it may be prudent given police must return property in certain circumstances and the mechanism contemplated by the Act is that property is restrained and in the Official Assignee’s custody and control, not held indefinitely by the police.

[26]             Power to hold seized items in custody is contained in s 151 of the Search and Surveillance Act 2012 which provides:

151    Custody of things seized or produced

(1)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

2      Criminal Proceeds (Recovery) Act 2009, s 11.

3      Dr Heather McKenzie Proceeds of Crime Law in New Zealand (Lexis Nexis NZ Ltd, Wellington, 2015) at 125–126.

or any other person to whom the thing is transferred in accordance with section 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:

(b)      the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise):

(c)      the thing is released under section 158 or 159:

(d)      if proceedings for an offence have not been commenced before the date that is 6 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 section 153:

(e)      in any case where proceedings are brought,—

(i)the withdrawal or dismissal of the proceedings; or

(ii)subject to sections 156 and 159, the completion of the proceedings:

(f)      the seized or produced thing is disposed of under section 160.

(2)Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—

(a)      in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or

(b)      in the case of any other event, in the manner required by this Act.

(3)However, if the thing is seized or produced in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection

(1) has occurred in relation to each and every alleged offence.

(4)This section is subject to sections 153 and 163.

[27]             Putting to one side the question, and my doubts as to, whether the cash was seized (it was handed in by the motel manager rather than obtained through exercise of a search power), s 151 only empowers holding the thing in custody until the first of any of the matters listed in paras (a)–(f) of subs (1) occurs. That is the case in my view notwithstanding that the thing seized may be “liable to forfeiture”. On the facts of the present case, no proceedings for an offence were commenced before 29 April 2025, being the date six months after the cash was handed in. Indeed no proceedings

for an offence have been commenced at all. As the respondent made a request for the return of the cash, the Commissioner was required to immediately release the cash to the respondent under s 151(2).

[28]             I note the view expressed by Churchman J in Commissioner of Police v Browne that there is nothing in the CPR Act imposing a particular time limit by which the applicant must commence proceedings seeking a restraining order.4 According to that view, if cash was considered by the police to be the proceeds of crime, it would be “liable to forfeiture” in terms of s 151(1) of the Search and Surveillance Act, and could be retained by the police for an indefinite period even though a decision had been made not to bring criminal charges and no application for a restraining order was made for nearly three years after seizure. However, with respect, I prefer the following commentary in Adams on Criminal Law:5

It is difficult to see how an item is “liable to forfeiture” in terms of s 151 simply because the police reached the view that it is. It is also difficult to reconcile the court’s conclusion with the plain language of s 151, which requires that in the absence of the court granting an extension under s 153 of the [Search and Surveillance Act] 2012, property must be returned on request if no proceedings for an offence have been commenced.

[29]             In any event, as I stated above, I doubt that s 151 even applies in the present case given that the cash was not seized pursuant to any search power.

[30]             More relevantly, the Search and Surveillance Act has a specific power in relation to seizure of cash in s 123B:

123B Seizure of cash of or over cash seizure threshold amount

(1)This section applies to a constable who,—

(a)      as part of their duties,—

(i)is exercising a search power; or

(ii)is lawfully in any place or in or on a vehicle; or

(iii)is conducting a lawful search of a person; and

4      Commissioner of Police v Browne [2020] NZHC 484.

5      Adams on Criminal Law – Rights and Powers (looselef ed, Thomson Reuters) at SS151.02A.

(b)      sees or finds cash in the possession of any person that the constable reasonably believes to be an amount of or over the cash seizure threshold amount.

(2)This section also applies to a constable who is informed by an enforcement officer that the enforcement officer, while lawfully screening or searching any person, item, or vehicle as part of their duties, has seen or found cash in the possession of any person in suspicious circumstances.

(3)The constable may question the person in the possession of the cash about—

(a)      the origin of the cash; and

(b)      the intended use for the cash.

(4)The constable must advise the person in possession of the cash of the power of the constable, or of any person assisting the constable, to seize the cash under subsection (5).

(5)The constable, or any person assisting the constable, may seize the cash if the constable—

(a)      reasonably believes the cash to be an amount of or over the cash seizure threshold amount; and

(b)      is not satisfied with the explanations given by the person in response to the questions put to the person under subsection (3); and

(c)      has reasonable grounds to suspect that the cash is not of lawful or legitimate origin or derivation, or is to be used for, or to further, any unlawful or dishonest purpose.

(6)As soon as is reasonably practicable, and in any case not later than 7 days after the cash is seized, a constable must—

(a)      return the cash to the person from whom it was seized, or have made contact with that person or that person’s representative to arrange for the return of the cash; or

(b)      release the cash to the owner of the cash (if the owner is not the person from whom the cash was seized); or

(c)      make an application to the District Court under section 123C for Police to hold the cash for a further period.

(7)Nothing in this section affects or limits the power of a constable to seize property that is given by or under any other legislative provision or by the common law.

[31]             This provision more readily applies given that Detective Paterson was lawfully in the New Plymouth police station when he saw cash that he reasonably believed to

be over the seizure threshold amount of $10,000 (albeit that the cash was already in the possession of the police it seems by the time he reached that view).

[32]             There  is  no  evidence,  however,  that  Detective  Paterson  complied  with   s 123B(4) in terms of advising the person in possession of the cash, which would have been the motel manager, of the power of the constable to seize the cash under subs 5.

[33]             Moreover, s 123B requires return of the cash within seven days unless an application is made to the District Court under s 123C for the police to hold the cash for a further period. Mr Bourke confirmed at the hearing that no such application was made.

[34]             Section 123D of the Search and Surveillance Act provides for the return or release of cash seized:

123D Return or release of cash seized

(1)If any of the circumstances specified in subsection (2) exist, the Police must, as soon as is reasonably practicable,—

(a)      return the cash seized to the person from whom it was seized, or make contact with the person or the person’s representative to arrange for the return of the cash; or

(b)      release the cash to the owner of the cash (if the owner is not the person from whom the cash was seized).

(2)The circumstances referred to in subsection (1) are that—

(a)      the authorised holding period has ended and before the end of that period the Police did not commence proceedings under the Criminal Proceeds (Recovery) Act 2009 for a restraining order or forfeiture order in respect of the cash seized:

(b)      any proceedings commenced under the Criminal Proceeds (Recovery) Act 2009 for a restraining order or forfeiture order in respect of the cash seized have been withdrawn or dismissed:

(c)      the person from whom the cash was seized, or the owner of the cash, has requested the return of the cash and provided the Police with information about its origin and intended purpose and the Police, having considered all available information, are satisfied that the cash has lawful and legitimate origin or derivation and is not to be used for any unlawful or dishonest purpose.

[35]             Before the end of the “authorised holding period” (being the period for which the police are authorised to hold the cash by an order made by the District Court under ss 123C(3)(a) or 123C(7)), the police may commence proceedings under the CPR Act for a restraining order or forfeiture order in respect of the cash seized. But unless the Commissioner does so, s 123D requires the cash to be returned to the person from whom it was seized or released to the owner of the cash.

[36]             This provision reinforces the strict time limits and orders required to maintain lawful custody of cash seized or received pending determination of proceedings under the CPR Act. But as no such steps appear to have been taken in the present case, the Commissioner is not entitled to any protection from those provisions and the obligation to return the cash was triggered.

[37]             For these reasons, I am not satisfied that the police had any authority to retain the cash or, if they did, it has long since expired.

[38]             Mr Bourke submitted that in this event even if the Court found there was procedural impropriety, that would not extinguish the taint associated with the cash and that it would cut across the scheme and purpose of the CPR Act to direct that the cash be returned. I take a different view. In light of the low-level offending committed by the respondent I consider that the interests of justice require the Commissioner now to return the respondent’s cash to her.

[39]             Accordingly, I dismiss the Commissioner’s application for a type one assets forfeiture order in respect of the $27,383.20 in New Zealand currency and $300 in United States currency currently held by the Police.

[40]I order the Commissioner to return the cash to the respondent forthwith.6

6      As an addendum to my oral judgment I confirm, for the avoidance of doubt, that the equivalent amount of money may be provided electronically to the respondent instead of the actual cash.  Mr Nye-Wood and Mr Bourke will no doubt be able to make arrangements that are satisfactory to the respondent. They have leave to apply for further directions if necessary.

[41]As the respondent does not seek costs, I make no order as to costs.

McHerron J

Solicitors:

C&M Legal, New Plymouth for Applicant Baywide Community Law for Respondent