Commissioner of Police v Clarke

[2021] NZHC 1981

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-41

[2021] NZHC 1981

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under sections 43, 44, 49

and 52

BETWEEN

THE COMMISSIONER, NEW ZEALAND POLICE

Applicant

AND

WAYNE TE AWAWA JOHN CLARKE

Respondent

Hearing:

23 July 2021

Appearances:

V Rae for the Applicant

T D Clee for the Respondent

Judgment:

3 August 2021

JUDGMENT OF COOKE J

(Formal Proof)

[1]    By application dated 4 September 2020 the Commissioner seeks assets forfeiture orders and profit forfeiture orders under ss 50 and 55 of the Criminal Proceeds (Recovery) Act 2009. The relevant property subject to the application is cash totalling $29,605 seized by police at an address in Lower Hutt when exercising warrantless search powers in relation to drugs and firearms under the Search and Surveillance Act 2012 in September 2019.

[2]    The Court has previously made on notice restraining orders on 19 June 2020, and following the filing and service of the forfeiture application, and advice from the

THE COMMISSIONER, NEW ZEALAND POLICE v CLARKE [2021] NZHC 1981 [3 August 2021]

respondent that he did not oppose the application, it proceeded before me by way of formal proof.

[3]    Prior to the hearing counsel for the respondent filed a memorandum advising that the respondent claimed no interest in the cash, and accordingly did not oppose the orders. I gave counsel leave to be excused from the hearing.

Relevant facts

[4]    The facts relevant to the application were originally set out in the affidavit of Kathryn Groube, a specialist investigator in the Asset Recovery Unit of the Police. At the hearing I raised with Ms Rea whether it was appropriate for the Commissioner to rely on this affidavit as Ms Groube could not give evidence herself of the underlying events, and the facts surrounding the respondent’s alleged possession of items in the manner described below. It is clear that the Commissioner cannot rely on hearsay evidence of this kind at the forfeiture stage. The position is different at the restraint stage. As has been indicated in a line of authorities, at the restraint stage hearsay statements of belief are potentially admissible under r 7.30 of the High Court Rules 2016 and s 20 of the Evidence Act 2006.1 But at the forfeiture stage the Commissioner is required to prove the allegations by admissible evidence. For that reason I adjourned the formal proof hearing and allowed the Commissioner to file further affidavits to provide admissible evidence of the underlying matters.

[5]    Affidavits have now been filed from Constable Aaron Wilkins and Constable Ethan Bland-Cocker describing the matters outlined below. I note that the evidence now filed includes additional matters and further details that have relevance to the allegations which were not provided in the affidavit of Ms Groube.

[6]    On 12 September 2019 police attended an address in Naenae, Lower Hutt seeking to find a person by the name of Matthew Hughes who had allegedly removed his electronic monitoring bracelet required as a condition of EM bail. A police cordon was put around the property where Mr Hughes was thought to be.  A vehicle was in

1      See Vincent v Commissioner of Police [2013] NZCA 412 at [45]; Commissioner of Police v Smith

[2017] NZHC 10 at [10]; Commissioner of Police v Rae [2020] NZHC 3132 at [24]–[25].

the driveway and Constable Wilkins approached it. As he did so a man in the back of the vehicle got out and attempted to run away. He was pursued by police officers and a dog that was deployed. Other persons were seen also trying to get away. A person the officers identify as Darren McKinley was seen throwing a number of plastic bags over a fence as he sought to leave the property. On examination the bags appeared to contain methamphetamine, and after Mr McKinley was caught he was arrested for possession.

[7]    Constable Bland-Coker then identified a second person at the rear of the property crawling underneath a sleepout. He recognised him as Matthew Hughes. He was also arrested.

[8]    Police then exercised warrantless searching powers under the Search and Surveillance Act 2012 and entered the sleepout. Two persons were found inside. The first was Joseph Tobin. He is described by Constable Wilkins as being very compliant and slightly intoxicated. The second was the respondent, Wayne Clarke. He was searched and found to be in possession of a single round of ammunition. A Louis Vuitton backpack was also found in the sleepout. It contained a magnum revolver handgun, a holster and ammunition pouches, four grams of methamphetamine and the respondent’s New Zealand passport. A further box of ammunition was found on the floor of the sleepout along with an electronic money counter, electronic scales and gang related clothing.

[9]    On the bedside cabinet $135 cash was located, $3,560 was found underneath the bed, and $25,910 was located in a blue Timberlands satchel beside the bed. The respondent was then arrested.

[10]   In addition to the other above matters the Commissioner relies on evidence of a lack of alternative means by which the sums of money involved could have been earned by the respondent.2 Between 2012 and 2019 the respondent earned limited benefits from the Ministry of Social Development. He has had limited opportunity to earn income in the community as over the last seven years he has spent only 238 days

2      Commissioner of Police v De Wys [2016] NZCA 634 at [71].

outside of prison. He has provided no explanation of any income earning activities that would explain this level of cash in his possession.

[11]   The respondent was subsequently charged with offences including the offence of possession for supply of methamphetamine and amphetamine. He subsequently pleaded guilty to amended charges including firearms offending and possession of a class A controlled drug (and not possession for supply) and was sentenced to 17 months’ imprisonment.

Assets forfeiture order

[12]Section 50 of the Act provides:

50       Making assets forfeiture order

(1)If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.

(2)Subsection (1) is subject to section 51.

(3)The Court must specify in an assets forfeiture order the property to which the order applies and that the property—

(a)vests in the Crown absolutely; and

(b)is in the custody and control of the Official Assignee.

(4)Despite subsection (1), the Court may not make an 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.

(5)If any property that is land is vested in the Crown absolutely as a consequence of an assets forfeiture order made under subsection (3), an interest recorded on the title to the land that is not affected by the assets forfeiture order is not extinguished.

[13]Tainted property is defined in s 5 of the Act in the following terms:

tainted property—

(a)means any property that has, wholly or in part, been—

(i)acquired as a result of significant criminal activity; or

(ii)directly or indirectly derived from significant criminal activity; and

(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

[14]   Section 6 of the Act defines significant criminal activity as an offence punishable by a maximum term of imprisonment of five years or more, or which involves $30,000 or more proceeds or benefits in the matter specified (s 6(1)(b)). Section 6(2) makes it clear that a person can be held to have undertaken significant criminal activity whether or not they have been charged or convicted of the offence. This is reiterated by s 15 of the Act which provides that no criminal proceedings are required before orders are made under the Act.

[15]   The question is whether the Commissioner has satisfied me on the balance of probabilities that the cash in question is property that has been acquired or derived from significant criminal activity. Whilst Mr Clarke knowingly pleaded guilty to a charge of possession, which is a charge that is not within the definition of significant criminal activity, I accept from the evidence available to me that it is more likely than not that the cash was acquired or directly or indirectly derived from the activity of supply of methamphetamine. The existence of items such as the electronic money counter, electronic scales, methamphetamine, firearms and cash are all characteristics of a drug dealing operation which I find was in existence, with the cash in existence, associated with that activity. That cash was a substantial amount for someone like Mr Clarke.

[16]   Mr Clarke disclaims any interest in this cash. His counsel filed a memorandum before the hearing reiterating that he had no interest in it. Notwithstanding his stance I accept that, on the balance of probabilities, he did have an interest in this cash. It was located in the sleepout next to the bed alongside other personal effects belonging

to him, including his passport and the Louis Vuitton bag. That clearly establishes a basis to find that he had an interest in the cash. It is likely that others, and in particular Mr Hughes and Mr McKinley also had an interest in this cash, or may have had an interest in that cash. They have not claimed an interest in it and neither has anybody else.

[17]   In accordance with s 50(4) it is necessary for a restraining order to be in place for one year, and for the Commissioner to make all reasonable efforts to contact any person the Commissioner believes may have had an interest in the property before a forfeiture order may be made. The on notice restraining order was made on 19 June 2020,  so  one  year  has  elapsed.   In  Ms Groube’s  supplementary  affidavit  of    14 December she explains the attempts made to contact Messrs McKinley and Hughes in relation to the cash. No efforts appear to have been made to identify if Mr Tobin has any interest in the property. But I accept the Commissioner’s argument and it is apparent from the evidence that he does not have an interest in the property, and that he was not residing at the sleepout. He was not even arrested for the drug offending. I accept based on that evidence that the Commissioner has made reasonable efforts to identify whether any other person has an interest in the property.

Profit forfeiture application

[18]   Ms Rae confirmed that, should I make the assets forfeiture application the Commissioner did not proceed with the profit forfeiture application.

Conclusion

[19]   For the above reasons I grant the Commissioner’s asset forfeiture application in the terms sought.

Cooke J

Solicitors:

Luke Cunningham Clere, Wellington for Applicant