Commissioner of Police v Farquhar

[2022] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-000028

[2022] NZHC 2506

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 22 and 25 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRUCE SCOTT FARQUHAR

First Respondent

AND

Trustees of the NALC RAHUG RAF

TRUST including Bruce Scott Farquhar Second Respondent

AND

FAITH FARQUHAR-CULLING

Third Respondent

AND

KIWIBANK

Interested Party

Hearing:	On the papers
Counsel:	R P Bates and R D Smith for the Applicant A Tobeck for the First Respondent
Judgment:	30 September 2022

JUDGMENT OF NATION J

Introduction

[1]        The Commissioner of Police (the Commissioner) on 5 May 2021 made an on notice application for restraining orders against property owned by Bruce Farquhar and others associated with him.

COMMISSIONER OF POLICE v FARQUHAR [2022] NZHC 2506 [30 September 2022]

Background

[2]        On 28 July 2020, the Police executed search warrants at Mr Farquhar’s address at 14 Mulford Street and two vehicles belonging to Mr Farquhar. The warrants were sought and executed on the basis that cannabis was being cultivated at that address.

[3]        Below the property, Police located a purpose-built bunker with a heavy, dead- bolted metal door. Mr Farquhar located the key for the bunker in his bedroom for the Police. Electricity, plumbing and ventilation had been professionally wired and plumbed into the bunker. Inside the bunker, Police located two tents and a large container for growing cannabis seedlings. In the first tent, Police found 16 mature cannabis plants growing in pots. The plants were well cared for and ready for harvest. In the second tent, Police located six bags of dried cannabis. Four bags contained cannabis buds and two bags contained cannabis stalks. The total weight of the cannabis buds was 1.427 kilograms. Police also found 61 cannabis seedlings in the large container. These seedlings had 15 different labels, suggesting 15 different strains of cannabis seedlings.

[4]        The Commissioner provided an estimated street value of the bagged cannabis bud between $20,000 and $25,000. The mature plants had a potential street value of between $25,600 and $32,000 once harvested. The Police additionally located a backpack containing $5,930 cash during the search.

[5]        Mr Farquhar has been charged with cultivation of cannabis and possession of cannabis for sale as a result of the evidence found during the search.

[6]        On 4 May 2021, the Commissioner obtained, on a without notice basis, restraining orders under the Criminal Proceeds (Recovery) Act 2009 in respect of the following property of the respondents:

(a)        the real property at 14 Mulford Street, Concord, Dunedin — registered proprietors being Maurice Roderick Farquhar (Mr Farquhar’s father), Maureen Margaret Farquhar (Mr Farquhar’s mother) and Mr Farquhar;

(b)        the real property at 49 Swansea Street, Middlemarch — registered proprietors being Mr Farquhar and Faith Farquhar-Culling;

(c)        all funds contained in the Kiwibank bank accounts listed in the order; and

(d)        all interests in the cash seized from Mr Farquhar’s possession on 28 July 2020, totalling $5,930.

[7]        An on notice application for further restraining orders was filed on 5 May 2021 for the same property as the without notice application.

[8]        Mr Farquhar was served in his personal capacity with the on notice application, the without notice application, the restraining orders and documents in support of these on 7 May 2021.

[9]        The second respondents to the application are the trustees of the Nalc Rahug Raf Trust (the Trust). The trustees are not known to the Court. Counsel for the Commissioner indicated the trustees are the registered proprietors of 14 Mulford Street, being Mr Farquhar and his parents. The Court has been informed that both Mr Farquhar’s parents have died. Mr Farquhar has not informed the Commissioner whether other trustees have been appointed and, if they have been, their identities. Associate Judge Lester directed in a minute dated 25 May 2022 that personal service on the trustees of the Trust be dispensed with and service upon the trustees will be deemed to be effected upon a copy of the proceedings being provided to Mr Farquhar through his counsel. Associate Judge Lester directed the documents would be treated as served on the trustees the working day after they were provided to Mr Farquhar’s counsel. The documents were sent to Mr Farquhar’s counsel via email on 26 May 2022.

[10]      The third respondent to the application is Ms Farquhar-Culling, who is a registered proprietor of 49 Swansea Street. She was served on 20 June 2022.

[11]      Mr Tobeck, counsel for Mr Farquhar, advised the Court that his instructions were not to oppose, but not to consent, to the application of the Commissioner. In a minute dated 6 July 2022, Associate Judge Lester directed that, if any party other than

the first respondent (Mr Farquhar) opposed the application, papers in opposition were to be filed by 2 August 2022. No papers were filed in opposition. There is therefore no opposition to the orders sought.

Discussion

[12]      The Commissioner’s application for on notice restraining orders is made in reliance on ss 21, 25 and 26 of the Criminal Proceeds (Recovery) Act.1 The grounds for the application are:

(a)        Mr Farquhar has been charged with a qualifying instrument forfeiture offence, namely cultivation of cannabis (with a maximum penalty of seven years’ imprisonment under s 9 of the Misuse of Drugs Act 1975), and there are reasonable grounds to believe the property at 14 Mulford Street is an instrument of crime used to facilitate that qualifying instrument forfeiture offence;2 and

(b)        there are reasonable grounds to believe Mr Farquhar unlawfully benefited from significant criminal activity, namely the cultivation and sale of cannabis in breach of ss 6 and 9 of the Misuse of Drugs Act.3

[13]These are the same grounds the without notice application was made.

[14]      The Commissioner has provided information regarding Mr Farquhar’s finances from 2014 to 2020. This is based on the investigation and analysis done by Mr Anand, special investigator for the New Zealand Police. In that period of time, Mr Farquhar declared income from the receipt of a benefit from the Accident Compensation Corporation (ACC). Mr Anand said there were just over $32,000 worth of unexplained deposits in Mr Farquhar’s bank account through that time period. Mr

1      The application states that it is being made in reliance on ss 22, 25 and 26 of the Criminal Proceeds (Recovery) Act 2009. This appears to be in error, as s 22 governs without notice applications, whereas s 21 governs on notice applications. The application form therefore does not comply with the one required under the Criminal Proceeds (Recovery) Regulations 2009, reg 4. However, no document is to be held invalid by reason only of a defect or want of form unless the court is satisfied there has been a miscarriage of justice, and there has not been one here: Criminal Procedure Act 2011, s 379.

2      Criminal Proceeds (Recovery) Act, s 26.

3      Section 25.

Anand also provided evidence that Mr Farquhar lived a “cash heavy lifestyle”, as only around $4,500 was spent on household expenditure from Mr Farquhar’s bank accounts from August 2013 to August 2020. Based on the average spend of a one-person household in the urban South Island, it would appear Mr Farquhar had access to approximately $78,000 in cash over that period. Mr Farquhar also received about

$98,000 from a law firm in Dunedin across three separate occasions in November 2018 and February 2019, which the Commissioner said would need to be further investigated.

[15]      Mr Anand said he believes the funds used to purchase the 49 Swansea Street property were proceeds of Mr Farquhar’s criminal activity.

[16]      Overall, Mr Anand suggested that Mr Farquhar has unlawfully benefited by significant criminal activity to a sum not less than $165,000.

[17]      Mr Farquhar has been charged with a qualifying instrument forfeiture offence. I am satisfied, based on the evidence given by Mr Anand, that there are reasonable grounds to believe that 14 Mulford Street is an instrument of crime used to facilitate that qualifying instrument forfeiture offence, and that Mr Farquhar has unlawfully benefited from significant criminal activity.

Result

[18]      I make the orders outlined in the draft restraining order filed by the Commissioner on 26 August 2022.

Solicitors:

RPB Law, Dunedin
Clair Elder Law, Dunedin

A Tobeck, Barrister, Otautau.