Commissioner of Police v George-Keightley

[2020] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-123

[2020] NZHC 1741

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JOSHUA ROBERT GEORGE- KEIGHTLEY

Respondent

Date of hearing:	17 June 2020 (further submissions 16 July 2020)
Appearances:	KRL Guthrie for the applicant No appearance for the respondent
Date of judgment:	17 July 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 17 July 2020 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Hamilton Legal, Crown Solicitor, Hamilton

COMMISSIONER OF POLICE v GEORGE-KEIGHTLEY [2020] NZHC 1741 [17 July 2020]

[1]                  As duty judge, I have the Commissioner's application for an asset forfeiture order dated 27 May 2020, seeking to place some $31,000 in cash – seized from a car associated with Mr George-Keightley, and in a drugs context and without apparent legitimate source – into the hands of the Official Assignee.1

[2]                  Mr George-Keightley pleaded guilty to a variety of drug and other offending arising from that context, for which he presently is serving a sentence of four years and nine months’ imprisonment. Mr George-Keightley’s convictions include for offering to supply methamphetamine,2 and cannabis,3 and possession of cannabis for supply.4 The application is supported by affidavits from Ya Tsui, an investigator employed by the police.

Law

[3]                  If I am satisfied on the balance of probabilities specific property is “tainted property” – that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity – I must make an assets forfeiture order in respect of that specific property. By the order, the property vests in the Crown absolutely and is in the custody and control of the Official Assignee.5

Discussion

[4]                  I am satisfied by Ms Tsui’s evidence on the balance of probabilities the seized cash is tainted property, as acquired or derived in connection with significant criminal activity, being the offending to which I have referred, or in any event with offending obtaining property with a value exceeding $30,000.6

[5]                  However, I “may not make an assets forfeiture order in relation to property that no person has claimed an interest in”, unless satisfied on the balance of probabilities the property has been restrained and the Commissioner has sought to contact anyone

1      Criminal Proceeds (Recovery) Act 2009, ss 43, 44, and 49.

2      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty: life imprisonment.

3      Section 6(1)(c) and (2)(c). Maximum penalty: eight years’ imprisonment.

4      Section 6(1)(f) and (2)(c). Maximum penalty: eight years’ imprisonment.

5      Criminal Proceeds (Recovery) Act 2009, s 50.

6      Criminal Proceeds (Recovery) Act 2009, s 6(1).

with such an interest.7 For the Commissioner, Ms Guthrie frankly acknowledged she had not turned her mind to that aspect of an assets forfeiture order. She suggested it may not apply, because Mr George-Keightley had admitted the seized cash was his.

[6]I observed:8

… Mr George-Keightley’s admission was not quite so specific, he saying to police in response to a formal examination order “it was given to me to buy drugs for other people … 10, at a guess”. He asserted “it is still their money”. The police suggested, on conclusion of drug transactions, “the ownership of [the] money now is [his]”. I am unsure if Mr George-Keightley’s acceptance of that proposition – put conditionally by police as “in that case” – is enough to give me jurisdiction to make the assets forfeiture order on grounds he has claimed an interest in the seized cash.

[7]                  Ms Guthrie offered to make further submissions on the point, which I welcomed and now have. Ms Guthrie points to the 2009 Act’s definition of “interest” in property as meaning:

(a)    a legal or equitable estate or interest in the property; or

(b)    a right, power, or privilege in connection with the property

and contends Mr George-Keightley’s various expressions of interest in the property – whether legally for himself or equitably on behalf of his ‘customers’ – suffice either to establish he has claimed an interest in it, or at least so much of it as is sufficient to taint the balance.

[8]                  I accept, having now considered Mr George-Keightley’s police examination in its whole, it cannot be said “no person has claimed an interest” in the property. I therefore “must” make the assets forfeiture order sought.9

Result

[9]                  I make an assets forfeiture order in respect of the $31,120 cash, which vests in the Crown absolutely, and is in the custody and control of the Official Assignee.

—Jagose J

7      Section 50(4).

8      Commissioner of Police v George-Keightley CIV-2020-419-123, 17 June 2020 (minute) at [5].

9      Criminal Proceeds (Recovery) Act 2009, s 50(1).