Commissioner of Police v Evans

[2014] NZHC 3109

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-7979 [2014] NZHC 3109

UNDER

the Criminal Proceeds (Recovery) Act

2009

IN THE MATTER

of an application for restraining/forfeiture order on notice under ss 21, 24, 25 of the said Act

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

PETER WILLIAM EVANS Respondent

JULIE HUHANA BURNS Interested Party

CARL VANCE FURNISS Interested Party

NAOMI ERIN GYDE Interested Party

DARREN GEORGE SAMUEL McKINLEY

Interested Party

Hearing:	5 December 2014
Counsel:	E M Light for Applicant Mr Furniss, Interested Party, in person
Judgment:	5 December 2014

ORALJUDGMENT OF THE HON JUSTICE KÓS (Restraining order – proceeds of crime)

[1]      This is an application by the police for restraining orders under ss 21, 24, 25

and 58 of the Criminal Proceeds (Recovery) Act 2009.  The application follows the

THE COMMISSIONER OF POLICE v EVANS & ORS [2014] NZHC 3109 [5 December 2014]

seizure of cash from premises at 14A and 16 Ropa Lane, Miramar on 28 June 2013. Those premises are the Wellington headquarters of the Highway 61  Motorcycle Club.

[2]      The cash seized by the police was only some of the money sums located on those premises. What was seized was:

(a)      $83,950 found in a black bag on a couch at 14A Ropa Lane, Miramar, in premises apparently under the control of Peter William Evans; and

(b)$3,475  found  in  a  wall  safe  at  16  Ropa  Lane  in  a  locked  room occupied from time to time by the second interested party, Mr Carl Furniss.

[3]      Mr Evans is, or may be, the president of the Wellington Chapter of the Highway 61 Motorcycle Club.   He now faces criminal drugs charges and will be tried in due course.  He does not oppose a restraining order being made in relation to the $83,950 sum.

[4]      Mr Furniss is a patched member of the Highway 61 Motorcycle Club.   He denies the police assertion that he is the treasurer of that club.   There is some evidence that he has some position of responsibility in that club; at least including the taking of minutes at club meetings.

[5]      Mr Furniss opposes restraining orders being made in relation to the $3,475 sum.   He says that money is his personal money deriving from the sale of a motorcycle, trading in motorcycle and vehicle parts on TradeMe and some receipts from personal debtors.

[6]      Mr  Furniss  gave  evidence  this  morning,  and  he  was  cross-examined  by Ms Light.  Mr Furniss gave evidence that was perfectly cogent.  But it is incomplete in the absence of records.   In particular, Mr Furniss was unable to produce today (and perhaps did not expect to have to produce today) the full range of TradeMe

account material showing his trading in motor vehicle parts.  Nor his personal bank accounts for the relevant period.

[7]      It is entirely appropriate to make restraining orders in relation to the $83,950 sum. That application is unopposed and I make a restraining order accordingly.

[8]      In relation to the $3,475 sum, there are three possibilities:

(a)       it is the property of Mr Furniss, and not tainted property;

(b)it  is  the  property  of  the  Highway  61  Motorcycle  Club  (e.g.  bar proceeds and funds from social events), and not tainted property;

(c)       it is tainted property.

[9]      I am satisfied that the police have discharged the relatively low onus for the purposes of ss 24 and 25 described in Commissioner of Police v Li.1    They have established that there are reasonable grounds to believe that the $3,475 fund in the safe are tainted property or under the control of Mr Evans.  Given the low threshold for an interim restraining order, that finding is inevitable on the evidence.  Whether that position is able to be sustained by the police in the longer term is very much another matter.

[10]     What I have emphasised this morning is the importance of resolving the question of the status of this money.  It was seized eighteen months ago.  Mr Furniss has not put his best foot forward yet to establish the legitimacy of his possession of the money.  It is also entirely unclear to me that the trial of Mr Evans will shed any light on this issue.  It is appropriate that an application for final forfeiture orders is brought forward.

[11]     That   position   the   parties   have   now   adopted.      During   the   morning adjournment there was a discussion between Ms Light, Detective Sergeant Murray

and Mr Furniss. The net result of that is as follows:

1      Commissioner of Police v Li [2014] NZHC 479.

(a)       I will make interim restraining orders as sought in relation to the

$3,475 sum.

(b)The  police  are  to  provide  to  Mr  Furniss  copies  of  his  notebook material  recording  debtor  repayments.     They  are  to  do  so  by

19 December 2014.

(c)      Mr Furniss to provide further information in support of his argument that the funds are his own legitimate property from vehicle and parts trading and debtor receipts by 30 January 2015.  This will need to include TradeMe account details and his own personal bank account details for the relevant period he relies on.

(d)The police is to file their forfeiture application (if unpersuaded by the material provided by Mr Furniss) by 27 February 2015.

[12]     No costs are sought in relation to today’s hearing.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Applicant

And to:

Mr Evans, Respondent