Commissioner of Police v Cheek

[2025] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-85 [2025] NZHC 1372

UNDER  the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER  of an application under ss 21, 24–25

BETWEENTHE COMMISSIONER, NEW ZEALAND POLICE

Applicant

AND  PAUL MICHAEL CHEEK

Respondent

Hearing:                   On the papers Appearances:       G J C Carter for Applicant

T E Hesketh for Respondent

Judgment:                29 May 2025

JUDGMENT OF McHERRON J

(Forfeiture Order)

[1]                 In October 2023, the applicant, the Commissioner of Police (Commissioner) applied on-notice for restraining orders under ss 21 and 24–25 of the Criminal Proceeds (Recovery) Act 2009 in respect of cash totalling $49,595 located and seized on 18 August 2023 from the respondent, Paul Cheek’s residential address. As at the date of the application, the funds were held in the New Zealand Police Trust Account, where they remain.

[2]                 In support of the application a comprehensive affidavit by Constable Matthew Rennie was filed.

THE COMMISSIONER, NEW ZEALAND POLICE v CHEEK [2025] NZHC 1372 [29 May 2025]

[3]                 Counsel  for  Mr  Cheek,  Tim   Hesketh,  filed  a  notice  of  opposition  on   6 December 2023 and steps towards a hearing were timetabled. However, by way of a further memorandum of counsel dated 29 February 2024, Mr Cheek indicated he had reconsidered his position and no longer opposed the Commissioner’s restraint application.

[4]                 On 4 March 2024, Mr Carter advised on behalf of the Commissioner that the cash had been recounted and the amount sought for restraint was now $49,725.

[5]                 Grice J made restraining orders in relation to this amended amount for a period of 12 months from 4 March 2024.

[6]                 On 23 January 2025, by joint memorandum of counsel, Mr Cheek advised that he did not contest the forfeiture of the cash that was currently the subject of restraint. The parties sought forfeiture to be ordered by consent without the need for a formal forfeiture application. The Commissioner relied on the same grounds that were set out in the restraining order application to establish forfeiture of the $49,725 cash currently restrained.

[7]                 On 31 January 2025, Gwyn J directed the Commissioner to file a formal application in the normal way, so the Court could be satisfied that the statutory criteria are met.

[8]                 On 28 February 2025, Churchman J then extended the restraining order until 4 March 2026. He also directed the Commissioner to promptly file an application for a forfeiture order as had been directed by Gwyn J in her 31 January 2025 minute.

[9]                 The Commissioner duly filed a formal application for forfeiture on 29 May 2025, which has been referred to me to consider on the papers as Duty Judge.

[10]              No memorandum or submissions were filed with the Commissioner’s forfeiture application. However, I have carefully considered the affidavit of Constable Rennie. On the basis of the material in that affidavit, I am satisfied on the balance of probabilities that the cash is tainted property, being property that was

wholly or in part acquired as a result of significant criminal activity, namely possession of methamphetamine for supply contrary to the Misuse of Drugs Act 1975, and carrying a maximum penalty of life imprisonment.1

[11]              Accordingly, by consent, I make a type one assets forfeiture order in respect of the $49,725 cash currently restrained. I order that the cash vests in the Crown absolutely and is in the custody and control of the Official Assignee.

[12]I make no order as to costs.

McHerron J

Solicitors:

BV+A, Palmerston North for Applicant

Tim Hesketh Law Ltd, Palmerston North for Respondent

1      Misuse of Drugs Act 1975, s 6(2)(a), sch 1.