Commissioner of Police v Davies
[2022] NZHC 2814
•31 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1420
[2022] NZHC 2814
UNDER Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
BRONSON SIASO DAVIES
First Respondent
AND
LA BELLA DONNA CURRIN
Second Respondent
Hearing: 20 October 2022 Appearances:
R E Budd for Applicant
No appearance by or on behalf of Respondents
Judgment:
31 October 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 31 October 2022 at 3:30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
COMMISSIONER OF POLICE v DAVIES [2022] NZHC 2814 [31 October 2022]
Introduction
[1] The Commissioner of Police (the Commissioner) applies pursuant to the provisions of the Criminal Proceeds (Recovery) Act 2009 (the Act) for restraining and civil forfeiture orders to be made against the first and second respondents in relation to the sum of $6,010 in cash located and seized by police during a search of a BMW motor car on 12 April 2021, and also the sum of $35,440 in cash located and seized by police during a search of the first respondent on 5 May 2021.
[2] The Commissioner’s on notice application was filed on 22 August 2022. Service of the application and supporting documents was effected by personal service on the first respondent on 31 August 2022,1 and by personal service on the second respondent on 25 August 2022.2
[3] Neither the first nor the second respondent has taken any steps in the proceeding and accordingly the hearing of the Commissioner’s application proceeds by way of formal proof.
The evidence in support of the application
[4] In support of the application the Commissioner primarily relies on the evidence of Mr Michael Bushell who is a Specialist Investigator attached to the Northern Asset Recovery Unit, Financial Crime Group, of the New Zealand Police.3
[5] In his affidavit in support of the application, Mr Bushell says that on 12 April 2021, police attended the Park Side Hotel and Apartments at 100 Greys Avenue, Auckland in relation to a matter involving a person believed to be in possession of a firearm. The first and second respondents have been in a relationship for several years and occupied an apartment at that address. In the lower car park of the address police located a white 2005 BMW motor vehicle registration LEW356 (the BMW). Police were advised that the respondents were in the BMW, and that the first respondent, Mr Davies, was a patched member of the Killer Beez gang. The attending police then
1 Affidavit of service by Michael Bushell (dated 31 August 2022).
2 Affidavit of service by Michael Bushell (dated 31 August 2022).
3 Affidavit of Michael Bushell in support of on notice application for restraining and civil forfeiture orders (dated 22 August 2022).
went to search the BMW to look for firearms. Upon searching a satchel found in the first respondent’s possession they located:
(a)the sum of $6,010 in cash (the BMW cash);
(b)three bags containing 0.78 grams of crystal substance, suspected to be methamphetamine;
(c)knuckle dusters; and
(d)the first respondent’s driver’s licence
[6]And inside the BMW the police found:
(a)four live shotgun rounds;
(b)66.5 grams of cannabis; and
(c)digital scales.
[7]The police also searched the respondents’ apartment and there located:
(a)a large glass ‘bong’ pipe; and
(b)a small glass pipe within a sunglasses case.
[8] When asked by the police about the items they had found the second respondent said that all of the items belonged to her, and that she was taking the cannabis to supply members of her family at a tangi. She said that the three bags containing a crystal substance were point bags purchased to celebrate her anniversary with the first respondent, and the BMW cash was their savings assembled over the previous 18 months. She told the police that she had taken the shotgun shells from her brother after becoming concerned about his mental health. The second respondent was arrested and charged with possession for supply of cannabis, possession of methamphetamine and unlawful possession of ammunition.
[9] At 7.10 am on 5 May 2021, police attended a residential address in Blockhouse Bay Road where the respondents were living together. The police went to the address in response to an incident during which the first respondent had used a brick to smash the window of the BMW. Upon arrival at the address, the police were advised that the first respondent was in the toilets of the nearby Mobil Service station. Police located the first respondent at the service station and arrested him. When searched by police, the first respondent was found to have the sum of $35,440 in cash (the 5 May cash), and a revolver loaded with six rounds of ammunition, concealed in the crotch of his pants. When asked about the money, the first respondent said that it was his savings and his great grandmother’s inheritance. The first respondent was unable to specify the amount of cash found in his possession, saying that it was an amount between
$25,000 and $40,000. He also told the police that he had found the revolver in a park the week before and had kept it with him as he did not want to leave it around his family. He was subsequently charged with wilful damage of the BMW and unlawful possession of a firearm.
[10] The first respondent is 24 years old and unemployed. He has 39 previous convictions including for theft, burglary and receiving.
[11] Mr Bushell states that his analysis of the respondents’ financial affairs has established that they declared minimal income over the tax years 2012 to 2022. However despite this and the first respondent being unemployed Mr Bushell found that regular unexplained cash and unexplained payments were made into each of the respondent’s bank accounts which cannot be reconciled with their declared income. Mr Bushell’s analysis of the first respondent’s BNZ and Kiwibank bank accounts showed that he regularly received payments from and made payments to the second respondent. Between 15 August 2015 and 6 August 2021, the first respondent received unexplained deposits totalling $27,316.50, comprised of: $19,066 in unexplained third party deposits, and $8,250.50 in cash deposits. Over the same period the first respondent withdrew $47,212.30 from his Kiwibank KB523-00 account. Examination of the first and second respondent’s individual Kiwibank accounts, showed a number of transfers of funds between them, however Mr Bushell says that his analysis shows that the 5 May cash sum of $35,440 did not come from either of the respondents’ respective Kiwibank bank accounts, and he is unable to identify large payments to, or
withdrawals from the first respondent’s bank accounts on or around the date when the 5 May cash was located, that aligns with what the first respondent told the police regarding the source of the money found in his possession. Mr Bushell says that the 5 May cash likely came from sources outside the banking system.
[12] Mr Bushell says that he also investigated and analysed the second respondent’s Kiwibank and ASB bank accounts. He found that between 23 January 2016 and 6 August 2021 the second respondent received deposits totalling $19,183.48 comprised of $10,315.70 in cash deposits and $8,867.78 in unexplained third party deposits. Over that period the second respondent made withdrawals totalling
$27,914.50. He found that the second respondent’s bank account records and her legitimate declared income do not reflect the explanation she gave the police regarding the source of the BMW cash found on 12 April 2021. And he says that there are no large payments or withdrawals from the second respondent’s accounts that could account for the first respondent’s explanation of the source of the 5 May cash.
[13] Mr Bushell says that his investigation and analysis of the first and second respondents’ financial affairs lead him to conclude that the BMW cash and the 5 May cash is tainted property, acquired or derived from drug offending, including the sale of cannabis and methamphetamine.
Discussion
[14] Mr Bushell’s unchallenged evidence establishes that the BMW cash was located by the police along with a large amount of cannabis and other items associated with drug offending, including three ‘point bags’ of crystals, scales, a knuckle duster and ammunition. Some of these items were located in a satchel found in the first respondent’s possession and the second respondent acknowledged to police that all of the items they located on 12 April 2021 belonged to her, and that the BMW cash was her and the first respondent’s savings. However, the second respondent’s explanation does not align with her declared income to the Inland Revenue Department or to her bank account records and limited employment history. The 5 May cash located in the first respondent’s possession was found hidden on his person together with a loaded pistol. His explanation of having found the pistol in a park is wholly implausible, and
Mr Bushell’s analysis of his and the second respondent’s bank accounts led him to conclude that there had not been a payment made into his accounts that would be consistent with the 5 May cash being an inheritance payment or savings.
[15] Having regard to the circumstances in which the 5 May cash was found being secreted by the first respondent in the crotch of his pants along with a loaded pistol, and the location of drug offending items including scales and drugs, and the fact that the first respondent’s possession of the sum of $35,440 cannot be reconciled with the respondents’ legitimate declared income, and the first respondent not knowing the actual amount of cash he had in his possession, I am satisfied that the two cash sums I have described as the BMW cash and the 5 May cash, have been proven on the balance of probabilities to be tainted property, acquired by the respondents or derived from significant criminal activity and from sources outside the banking system, including from the sale and transacting of illegal drugs.
[16] I accordingly make an assets forfeiture order pursuant to s 50 of the Act in respect of the BMW cash and the 5 May cash, and order that the cash sums and all and any accumulated interest thereon, be vested in the Crown absolutely, and is in the custody and control of the Official Assignee.4
Paul Davison J
4 Criminal Proceeds (Recovery) Act 2009, s 50(3)(a)–(b).
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