Commissioner of Police v Cherrington
[2025] NZHC 591
•21 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2089
[2025] NZHC 591
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
JARED KENNETH CHERRINGTON
First Respondent (discontinued)
PETER DAVID GLENN
Second RespondentANDREW RAYMOND WILSON
Interested Party
Hearing: 4 February 2024 2 December 2024 Appearances:
E Rangamuwa and J Lowyim for Applicant A Speed for Second Respondent
J Mather for A Wilson, Interested Party
Judgment:
21 March 2025
JUDGMENT OF BECROFT J
This judgment was delivered by me on 21 March 2025 at 10am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Meredith Connell, Auckland Keam Law, Auckland
Laurent Law, Auckland A Speed, Auckland
J Mather, Auckland
COMMISSIONER OF POLICE v CHERRINGTON [2025] NZHC 591 [21 March 2025]
What this case is all about
[1] On 8 October 2020, the police searched a dwellinghouse in Onehunga, Auckland. After their forced entry into the house, police saw Mr Peter Glenn coming out of one of the bedrooms.
[2]As a result of searching the bedroom, the police found:
(a)10.1 grams of methamphetamine in a vial in a bag on the bed;
(b)38.7 grams of methamphetamine in a container on a set of shelves close to the bed;
(c)0.5 grams of methamphetamine located in a container on the same set of shelves;
(d)0.5 grams of methamphetamine powder, located on Mr Glenn’s person when he was searched by a custody officer at Auckland Custody Unit;
(e)a set of electronic scales and a large number of used and unused “snap lock” bags;
(f)clear empty capsules, methamphetamine pipes and some cannabis;
(g)cash, in two lots (together the “Onehunga Cash”) comprising:
(i)two bundles of cash in a bag on the bed totalling $19,900, comprising one bundle of $10,000 and another bundle of
$9,900; and
(ii)a further bundle of cash rolled up, between the mattress and the bed, of $5,000.
[3] On 10 July 2023, Mr Glenn pleaded guilty to a charge of possession of methamphetamine for supply in relation to the 10.1 grams of methamphetamine found in his room. I am unsure whether other charges were laid and subsequently withdrawn.
[4] On 9 November 2021, the Commissioner of Police (Commissioner) applied under the Criminal Proceeds (Recovery) Act 2009 (the Act) for civil forfeiture orders as follows:
(a)a profit forfeiture order under s 55 of the Act, in the sum of $24,900;
(b)in the event a profit forfeiture order is made, an effective control order under s 58 of the Act,1 that Mr Glenn has interests in or effective control of the Onehunga Cash; and
(c)if a profit forfeiture order is not made, then a type 1 assets forfeiture order under s 50 of the Act over the Onehunga Cash.
[5] The far more comprehensive proceeding in relation to the first respondent, Mr Jared Cherrington, has settled.
[6]Mr Glenn opposes the Commissioner’s application on the grounds that:
(a)the Onehunga Cash was sourced legitimately:
(i)the $19,900 found on his bed was a loan from a Mr Andrew Wilson who has an interest in it, and it should be returned to him;
(ii)the $5,000 found under the mattress was the result of a sale of swamp kauri timber to a Mr Horsfall; and
(b)he has not unlawfully benefitted from significant criminal activity and wishes to rebut the presumed value of the unlawful benefits set out in the application as $24,900.
[7] An interested party, Mr Andrew Wilson, seeks relief from the Commissioner’s application on the basis he has an interest in $19,900 of the Onehunga Cash which represents a loan made to Mr Glenn in order to pursue his possible career as a DJ.
1 At the time the application was made, s 58 dealt with effective control orders. That provision has since been renumbered to s 17A of the Act.
[8] The Commissioner opposes Mr Wilson’s claim for relief, on the basis that he has not established any interest in the Onehunga Cash.
The civil forfeiture regime generally
[9] The Act establishes a regime for the forfeiture of property that has been derived, directly or indirectly, from significant criminal activity or property that represents the value of a person’s unlawfully derived income.2
[10] The purposes of the criminal proceeds regime established under the Act include deterring significant criminal activity and eliminating the chance for persons to profit from it.
[11] The Court of Appeal has confirmed that the Act has a “strongly expressed statutory purpose”.3 The Supreme Court said the language of eliminating the chance for persons to profit is “aspirational” and gives a “clear and emphatic signal as to the legislative purpose”.4
Profit forfeiture order application – legal principles5
[12] Profit forfeiture orders rest on the concept of unlawful benefit. Generally, the Court will order a respondent who has unlawfully benefitted from significant criminal activity to pay the value of the unlawful benefit derived. Any property owned or controlled by the respondent irrespective of whether it has been criminally obtained can be realised to satisfy the debt owed.
[13] Under s 55 of the Act, this Court must make a profit forfeiture order in this case if it is satisfied on the balance of probabilities that:
(a)Mr Glenn has unlawfully benefitted from significant criminal activity
in the relevant period of the criminal activity; and
(b)Mr Glenn has interests in property.
2 Criminal Proceeds (Recovery) Act 2009, s 3(1)
3 Hayward v Commissioner of Police [2014] NZCA 625 [Hayward (CA)] at [29].
4 Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [12].
5 Criminal Proceeds (Recovery) Act, ss 52–57.
Unlawfully benefitted from significant criminal activity
[14] “Significant criminal activity” is defined in s 6 of the Act and includes an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending that consists of, or includes, one or more offences punishable by a maximum term of imprisonment of five years or more.
[15] Section 7 of the Act goes on to define when a person has unlawfully benefitted from unlawful criminal activity. It provides:
In this Act, unless the context otherwise requires, a person has unlawfully benefitted from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
[16] It is not necessary for the property, itself, to be derived from the offending. Nor is it necessary for the respondent to have undertaken (or been involved in) the significant criminal activity. All that matters is that the person knowingly benefitted from significant criminal activity.
[17] The Commissioner may rely on a range of evidence in seeking to prove a respondent has unlawfully benefitted. In Commissioner of Police v Hayward, Venning J said:6
[22] In determining the application under s 53(1) the first issue for the Court will be whether the Commissioner has proved on the balance of probabilities that the respondent has unlawfully benefitted from significant criminal activity during the relevant period. The Commissioner is not, however, restricted to relying on actual proceeds received by the respondent in relation to the particular offending that he was convicted of. Such convictions provide proof the respondent has engaged in significant criminal offending, but the Commissioner can also seek to prove the benefit extended beyond the profits from the dealing supporting the convictions. The Commissioner can invite the Court to infer, on the balance of probabilities that the respondent was involved in other significant criminal activities that he was not charged with. The Commissioner can also, for instance, rely on the disparity between moneys passing through the respondent’s bank account or finding its way into the purchase of assets as compared to his declared legitimate income to prove or establish the benefit the respondent received from his significant criminal activities.
…
6 Commissioner of Police v Hayward [2012] NZHC 1097.
[25] The important point is that it is for the Commissioner to nominate a figure in the application as the value of the benefit presumed. The figure could be calculated in a number of ways. It could be calculated as the moneys received directly from the criminal activity of which the respondent was convicted or it could be based on the disparity between his legitimate income and purchases, unexplained deposits to his bank accounts, or even as an estimated calculation of recoveries from other significant criminal activity which he was not charged with or on charges that he was acquitted of …
[18] To similar effect, are the comments of the Court of Appeal, in Commissioner of Police v Dryland,7 that inferences can be drawn from established criminal activity and disparity between assets and legitimate income.
[19] Also, the courts can readily infer that the criminal activity took place over a greater period of time than that proved beyond reasonable doubt in a criminal proceeding.8
[20] The Court of Appeal confirmed in Commissioner of Police v de Wys, that the respondent’s involvement in criminal activity and their unlawful benefit therefrom may be proved by circumstantial evidence.9
[21] Thus, while a criminal conviction is to be treated as conclusive proof of criminal offending in the civil sphere, the Commissioner can also seek to prove other criminal offending, not the subject of a conviction, on the balance of probabilities. In fact, the Commissioner can seek orders under the proceeds of crime legislation even if someone has not been convicted of any offending. The rationale behind this lies in the difference in the burden of proof in the criminal and civil spheres. So, even in cases where the police/Crown cannot prove charges beyond a reasonable doubt the Commissioner may succeed in proving offending on the balance of probabilities.
Interests in property
[22] Section 5(1) of the Act defines property as meaning real or personal property of any kind. “Interest” is defined as meaning:
(a)a legal or equitable estate or interest in the property; or
7 Commissioner of Police v Dryland [2013] NZCA 247 at [34]–[39].
8 See Hayward (CA), above n 3, at [41]–[42].
9 Commissioner of Police v de Wys [2016] NZCA 634.
(b)a right, power, or privilege in connection with the property.
[23] Section 55(2)(c) requires that the profit forfeiture order “specify the property that is to be disposed of in accordance with s 83(1), being the property in which the respondent has, or is treated as having, interests”.
Has Mr Glenn unlawfully benefitted from significant criminal activity?
[24] Here, Mr Glenn has been convicted of possession of methamphetamine for supply in relation to 10.1 grams of the methamphetamine found at the Onehunga address. That satisfies the definition of significant criminal activity. However, I agree with Mr Speed, counsel for Mr Glenn, that Mr Glenn has not unlawfully benefitted from that offending because the drugs have been seized by police. Therefore, to show unlawful benefit, the Commissioner must show on the balance of probabilities that Mr Glenn’s criminal activity extended beyond his conviction alone.
[25] Here, the Commissioner’s position is that Mr Glenn was engaged in the actual sale of methamphetamine. He relies on the quantity of methamphetamine located in the room, the other indicia of drug supply (including the scales, capsules and “snap lock” bags) and the Onehunga Cash as evidence of this past selling and dealing.
[26] Mr Glenn denies that he has ever been involved in the supply of methamphetamine. He acknowledges that he has struggled with methamphetamine use at times in his life and was an “on again off again” addict. However, he firmly denies the proposition that he was a dealer or supplier of methamphetamine. He disavowed knowledge of the indica of drug supply found in the bedroom and also offered explanations for the cash found. I address these matters before returning to the broader question of whether Mr Glenn has unlawfully benefitted from significant criminal activity.
Mr Glenn’s knowledge of the drugs and drug-related items found in the bedroom
[27] As mentioned at the outset of this judgment, in addition to the 10.1 grams of methamphetamine found in the vial, police located another 39.7 grams of methamphetamine throughout the room and on Mr Glenn’s person. The police also
found numerous used and unused “snap lock” bags, clear empty capsules of the kind used to store small amounts of methamphetamine, a set of electronic scales, and methamphetamine pipes.
[28] Mr Glenn claims that only the 10.1 grams of methamphetamine found in the bedroom belonged to him, and he does not know anything about the other amounts or equipment found.
[29] His evidence is that he had stayed in the bedroom from time to time but had only arrived back at the house 15 minutes before the police executed the search warrant. He only had time to put his coloured bag on the bed and go to the kitchen to see if there was any food in the fridge.
[30] Mr Glenn further said that he understood others had stayed in the room regularly although he did not know their names. He knew that at least two came from the South Island. He said he no longer had a key to the room. He said that he did not stay there regularly. The owner of the house did not give evidence to confirm Mr Glenn’s “understanding”. Neither did any of the others who might have visited the house and stayed in the room.
[31] Mr Glenn also specifically denied knowledge of some of the contents of the bedroom. For example, Mr Glenn denied knowledge of a brown “Troop” bag found on his bed. The contents of that bag included the scales and methamphetamine pipe.
[32] One significant difficulty in that explanation, which was well developed by Mr Lowyim in cross-examination, is that the vial with the 10.1 grams of methamphetamine was found in the very bag (the brown “Troop” bag) that Mr Glenn claims to have no knowledge of. He says he cannot account for how it got there, even given his guilty plea which self-evidently encompassed his possession of it.
[33] By virtue of s 47 of the Evidence Act 2006, Mr Glenn’s conviction must be taken as conclusive proof of the relevant ingredients of that charge including possession. So, frankly, it is not credible, and is beyond belief, that he would not know
of the vial’s presence in the “Troop” bag. I consider his denial is all too convenient given that the bag also contained electronic scales, and a methamphetamine pipe.
[34] Overall, Mr Glenn’s evidence is unconvincing. The room and its contents were plainly his. Not only was he seen exiting the bedroom when the police first forced entry to the Onehunga property but the room was clearly lived in, especially when compared to the other bedrooms. Furthermore, numerous personal items, including letters and packages addressed to Mr Glenn, clothing belonging to him and a wallet containing his driver’s licence was found there.
[35] The overwhelming inference is that this room was his base, and it was, effectively, his room. After all, his evidence is that this is the place that he returned to after visiting his friend, Mr Andrew Wilson, “up north” for four days.
Source of the Onehunga Cash
[36] Mr Glenn claims that $20,000 of the Onehunga Cash, $19,900 to be exact (he had apparently earlier removed $100), was sourced from a loan from his friend, Mr Wilson, for the purpose of furthering Mr Glenn’s career as an aspiring DJ. Mr Glenn states the remaining $5,000 cash under the mattress came from the sale of his kauri timber slabs. I discuss each explanation in turn.
[37] Mr Wilson supports Mr Glenn’s claim of a loan. Mr Wilson can establish that he took out a loan from Harmoney which was paid to him on 17 February 2020. Mr Wilson described Harmoney as a “loan shark”. The description is perhaps understandable given the interest rate for the total loan of $24,675 including establishment costs, was 21.49 per cent per annum which could perhaps be described, as Mr Lowyim for the Commissioner put it, as “extortionate”. The total interest during the period of loan, being 60 months, was calculated at $15,753.44. There was a total liability under the loan of both principal and interest totalling $40,428.44.
[38] This money was allegedly obtained by Mr Wilson to purchase a boat. He uplifted the loan, completely in cash, he said in $20 and $50 notes, from his bank after taking half a day off work to do so.
[39] The boat purchase did not go ahead. He then said that he kept the cash and did not speak to anyone else about it until he loaned the money to Mr Glenn when Mr Glenn visited him for a few days on 4 October 2020. This was four days before the search of the Onehunga house when the cash was seized.
[40] There is a one-page handwritten note which sets out the existence of the loan, for $20,000 with interest of $5,000 to be repaid by Mr Glenn. Next to Mr Glenn’s signature is the date 4 October 2020.
[41]The Commissioner put to Mr Wilson, very firmly, that in fact he had used the
$20,000 for something else and the loan to Mr Glenn was fabricated simply to enable Mr Glenn to retrieve the money seized by the police and thereby avoid any asset forfeiture.
[42] Between 17 February 2020 and 4 October 2020, which was when Mr Wilson says he parted with the money, his bank accounts reflected a net negative financial position. As at 17 February 2020, it appears his combined liability under all his four various bank accounts was $5,895 in total debt. It also appears he was in overdraft/debt for a similar amount at the time of the alleged loan to Mr Glenn.
[43] On the face of it, it defies belief that Mr Wilson would effectively “hoard” or “sit on” the cash in his wardrobe for over seven months and not either repay the loan or at least invest it at a favourable interest rate to offset his “extortionate” interest payments, until he decided what to do with the money.
[44] Faced with these unpalatable realities in cross-examination, Mr Wilson explained that he had left school (as I understand it) in the fourth form due to dyslexia; he was not business savvy; and said he was not like most people. He accepted that most other people would probably have repaid all or some of the loan or at least invested it. However, he said he always wanted to buy a boat; he felt like a “millionaire” having the money; and he often used to look at it in the wardrobe and gained great pleasure from doing so. He is obviously a good friend of Mr Glenn and apparently considers him to be a potentially capable and profitable DJ.
[45] I have thought long and hard about that explanation. I was initially of the view that perhaps it had a certain ring of truth. But having reflected on it for some months I just cannot accept Mr Wilson’s evidence. It is just not credible. I do not accept it. Perhaps Mr Glenn does owe him money, and this was an easy way to get the money back. But even if so, on the balance of probabilities, I conclude that Mr Wilson’s explanation is not the reason for the debt.
[46] For his part, Mr Glenn said he wanted the money to go to Mexico to continue his DJ career. But given that there was a global pandemic at the time, tourism surely would have been in decline in Mexico where Mr Glenn was wanting to go. This may have been a general goal but his confirmation of the loan from Mr Wilson is an inherently implausible story.
[47] I also acknowledge that there was additional evidence that Mr Glenn sought to adduce in support of his case. This included formal statements from several individuals which he attached to his affidavit. The Commissioner’s position is that most of the statements are inadmissible hearsay as no affidavits were ever filed by the statement makers. I agree. However, in a minute of mine dated 20 March 2024, I recorded that the Commissioner would be happy for the statements of Ms Slayback to be accepted albeit on a hearsay basis. The Commissioner submitted that the statements should be of limited weight.
[48] Ms Slayback’s evidence is that she is the director of an international entertainment media group. She claims to have met Mr Glen while “DJing” in Mexico and says she invited him to work with her. That would include, among other things, Mr Glenn performing as a DJ. She says that he went home to New Zealand but was meant to be returning as he had committed to playing in Mexico from October 2020– March 2021.
[49] I accept that this evidence adds some credibility to Mr Glenn’s claim that he was going to Mexico to work as a DJ. However, it does not affect my underlying conclusion that the story of the loan is far-fetched and simply unbelievable. I conclude that Mr Glenn has enlisted his friend, Mr Wilson, to help him on the basis he might well recover the $20,000 if Mr Wilson’s evidence is accepted.
[50] Mr Glenn’s explanation for the other $5,000 is equally implausible. He gave no evidence as to justify how five swamp kauri slabs, even given that they were approximately 100mm thick x 800mm wide and approximately 2m long, would sell for $5,000.
[51] Mr Horsfall gave evidence claiming to be the purchaser of the timber. He said he has no idea of what the value of the kauri would be, saying he bought it for his wife to use. There are no receipts or proof from him as to where the $5,000 came from.
[52] The evidence from a timber expert, called by the Commissioner, Mr Clayden, suggests that the one or two remaining pieces that were still in Mr Horsfall’s possession when they were inspected, were worth considerably less than a $1,000 each. When this was put to Mr Horsfall, he responded that he had obviously been “ripped off”.
[53] Mr Horsfall, in giving evidence, was also most uncertain as to when this transaction took place. In his affidavit, he said it was in September 2020. This aligns with the evidence in Mr Glenn’s affidavit which also recorded September as when the transaction took place. However, under cross-examination, Mr Horsfall was uncertain as to when the transaction occurred. When asked by Mr Lowyim whether September sounded about right, he replied saying:
Oh man, look I can’t, sorry, I can’t give you an exact date mate, I mean, it was a while ago, I’d have to go back through my statements or something like that but look, yeah, it was a long time ago, mid-year, somewhere around there.
[54] The point is neither Mr Glenn nor Mr Horsfall were able to give evidence with a sufficient amount of specificity for me to accept the explanation. To further illustrate the point, Mr Glenn’s affidavit records that having sold the timber, he kept the money in cash, instead of depositing it into his account, until he returned to the Onehunga property and stashed it under the mattress. I find this unlikely and am not satisfied by this explanation for the additional $5,000. Indeed, I reject it.
[55]If any wood was provided to Mr Horsfall, it was certainly for less than the
$5,000 that Mr Horsfall recollects. In my view, on the basis of Mr Clayden’s evidence, it was of dubious quality and some of it was riddled with borer. I do not accept the explanation.
[56] In general, my assessment is that Mr Glenn gave his evidence hesitatingly, uncertainly, and was often somewhat vague. I take into account that he suffered a serious head injury in approximately 2011. Nevertheless, his presentation and recollection were far from convincing.
[57] For instance, he volunteered that he thought $500 per gram of methamphetamine was an unrealistic price but then, in further cross-examination, pulled back and simply said that, generally, it was not an amount that he would pay.
[58] My overall impression was that he was not convincing. I simply do not believe him on key aspects.
[59] The items found in Mr Glenn’s room including the significant amounts of cash both in in the coloured bag and wedged under the mattress, are all significant matters of circumstantial evidence. Like strands of a rope, when taken together, in my view they are of sufficient strength to support the clear inference that Mr Glenn has been involved previously in significant criminal activity, namely the supply of methamphetamine.
[60] This is reinforced by the fact that between 2015 and 2021, Mr Glenn’s only declared income to the Inland Revenue Department were benefits received from the Ministry of Social Development. The net income he received during this period was
$72,534.39 or approximately $10,362 per annum. He did not declare any income for the 2018 year. And in the period 2018 to 2021, he declared a net income of only
$34,376.45.
[61] Mr Glenn’s limited declared income does not sit well with the cash found in his bedroom at a single point in time.
[62] I accept Mr Speed’s submission that there is no direct evidence of any previous drug dealing involving Mr Glenn in the way of police observation, text messages, evidence from purchasers, or what at least in the past was called a “tick book”. But what was found in the room is significant. The approximate value of the methamphetamine located in what I have held is Mr Glenn’s bedroom, was $24,900. Detective Davenport’s evidence satisfies me that, if sold in one-gram amounts, the price would be between $400-$600. $500 is a fair estimate. That is far more than someone who is merely a consumer of methamphetamine would require.
[63] In my view, the inference from all of the evidence is very clear that Mr Glenn has been involved in the dealing of methamphetamine in the past. All the relevant and material circumstantial evidence found in his room, including the bundles of cash, point inevitably and explicitly towards that.
[64] He may not be “Mr Big”. And he may not be a substantial dealer. But I am quite satisfied that he has dealt in methamphetamine even if only to support his habit. He was perhaps introduced to dealing through Mr Cherrington who was certainly a principal offender in the operation that was uncovered by the police—but that is only a Crown supposition.
Conclusion
[65] I conclude, easily to the standard of the balance of probabilities, that Mr Glenn has been involved in the selling or otherwise dealing in methamphetamine. This satisfies the definition of significant criminal activity because such offending carries with it a maximum sentence of well over five years’ imprisonment—in fact, life imprisonment.
[66] Equally, I conclude that he has unlawfully benefitted/profited from that significant criminal activity. The Onehunga Cash is indicative of, and is, that unlawful benefit.
Value of benefit
[67] If the Commissioner proves that Mr Glenn did unlawfully benefit from significant criminal activity, as I have concluded he has done, the value of the unlawful benefit is presumed to be the value stated in the Commissioner’s application.10 Mr Glenn can assume the burden of proof and then rebut this presumption, on the balance of probabilities.11
[68] Here, the Commissioner has nominated the value as being $24,900. That was the amount of cash found in Mr Glenn’s bedroom. Purely coincidentally, it also equates to the per gram value of the total amount of methamphetamine found in the room and on Mr Glenn’s person, that being 49.8 grams. Other than that, the coincidence is of no moment.
[69] How the Commissioner’s unlawful benefit figure is calculated is strictly irrelevant.12 The figure nominated by the Commissioner is presumed to be correct until a respondent proves otherwise.
[70] In this case, given Mr Glenn has entirely disavowed ever supplying methamphetamine, he has not discharged the burden to prove the value nominated by the Commissioner is incorrect.
Does Mr Glenn have interests in property?
[71] In order to make the profit forfeiture order against Mr Glenn, I must also be satisfied that Mr Glenn has interests in property as discussed above at [22]–[23].
[72] I am satisfied that Mr Glenn has an interest in the Onehunga Cash. It does not appear to be disputed that it is his. Even on his evidence, the cash is his. It is simply the source of the cash that was disputed at the hearing. Therefore, I am quite prepared to specify the Onehunga Cash as the property that is to be disposed of in accordance with s 83(1).
10 Criminal Proceeds (Recovery) Act, s 53(1).
11 Section 53(2).
12 Commissioner of Police v Tang [2013] NZHC 1750 at [39].
Conclusion as to profit forfeiture order
[73] I am satisfied that the two limbs of the s 55(1) test are satisfied on the balance of probabilities. I must therefore make a profit forfeiture order the terms of which I formally set out at [82] of this judgment.
Effective control order
[74] The Commissioner also seeks an effective control order, pursuant to s 17A of the Act, to the effect that the Onehunga Cash is to be treated as though Mr Glenn had interests in, or effective control of it. Section 17A provides:
(1) If the High Court is satisfied that a respondent has effective control over property, the Court may, on an application made by the Commissioner, order that the property is to be treated as though the respondent had an interest in the property specified by the Court.
[75] The section is a “deeming” provision. With respect to the Commissioner, I do not consider such an order is necessary in this case. I am more than satisfied that Mr Glenn had a legal interest in the Onehunga Cash. It is his cash. That is all that is required for me to specify it as the property that is to be disposed of in accordance with s 83(1) of the Act pursuant to s 55(2)(c). In these circumstances, I do not see that I need to deem Mr Glenn as having an interest in it by making an effective control order. I decline to make the order. However, this matter was not argued before me by the Commissioner. If I have overlooked a reason for the necessity of such an order, the Commissioner can file an appropriate memorandum within seven days of this judgment being released.
Assets forfeiture order application
[76] In the alternative to a profit forfeiture order, the Commissioner sought an assets forfeiture order. However, given my conclusion on the profit forfeiture order, I do not need to address an assets forfeiture order.
Mr Wilson’s application for relief
[77] The final matter I must address is Mr Wilson’s application for relief. He relies on s 66 of the Act. That section provides:
(1) On receipt of an application for an order for relief from a civil forfeiture order under section 61 or 62, the High Court must grant the relief that the Court considers appropriate if the applicant proves on the balance of probabilities that the applicant—
(a) has an interest, or would but for any civil forfeiture order have an interest, in the property to which the application relates; and
(b) has not unlawfully benefited from the following significant criminal activity:
…
(ii) in any other case, the significant criminal activity to which the civil forfeiture order or proposed civil forfeiture order relates.
[78] Mr Wilson claims he has an interest in the property by way of his alleged loan to Mr Glenn. He also says he did not benefit from Mr Glenn’s criminal activity. Given I have rejected Mr Glenn and Mr Wilson’s claims of a loan, the relief application fails at the first hurdle. Mr Wilson has no interest in the property.
[79] For completeness, I note that even if the loan story was true that would not give Mr Wilson an interest in the cash so as to entitle him to relief under s 66. A line of authority appears to have established that a personal debt does not create “an interest in property” for the purposes of the Act.13
[80] So, even if Mr Wilson had provided a loan to Mr Glenn, which after careful consideration I have rejected, he has no interest in the cash itself. Mr Mather, on that point, suggested that if I accepted Mr Wilson’s loan evidence, then it must follow that the cash found in Mr Glenn’s possession was the very cash that he gave him. As such, Mr Wilson could therefore establish it was his cash and/or that he had an equitable interest in it. That argument can be left for another day.
[81] However, as I have said, Mr Wilson’s application fails first because I do not accept the existence of a loan between him and Mr Glenn.
Result
[82] Being satisfied as to the matters in s 55(1) of the Act, I make a profit forfeiture order against Mr Glenn. In terms of s 55(2), the value of the benefit over which the
13 Commissioner of Police v Read [2015] NZHC 2055 at [107].
order is made is $24,900. That is also the maximum recoverable amount. The property that is to be disposed of is the Onehunga Cash being property that Mr Glenn has an interest in.
[83]I decline Mr Wilson’s application for relief.
Becroft J
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