Commissioner of Police v Hahn

[2021] NZHC 2294

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-44

[2021] NZHC 2294

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TIMO HAHN

Respondent

Hearing:

On the Papers

Appearances:

R W Donnelly for Applicant

No appearance by or for the Respondent

Judgment:

2 September 2021

JUDGMENT OF MANDER J

COMMISSIONER OF POLICE v HAHN [2021] NZHC 2294 [2 September 2021]

[1]    The Commissioner of Police (the Commissioner) seeks an asset forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (the Act) in respect of $32,640 located in a room occupied by the respondent, Mr Timo Hahn, when he was living at an address in Queenstown. Forfeiture is sought on the basis the cash is tainted property that was acquired from significant criminal activity by Mr Hahn.

[2]    Mr Hahn is a German national who visited New Zealand several times between April 2017 and December 2019. He stayed for lengthy periods and resided in Queenstown. In November 2020, he was deported to Germany. Attempts have been made to contact him for the purpose of this proceeding with varying results. On 23 July 2021, Osborne J dispensed with service of the forfeiture application after being satisfied that reasonable efforts had been made to effect service on Mr Hahn and that the documents had come to his attention.1 The Judge directed the application for forfeiture be dealt with on the papers by way of formal proof.

[3]    Forfeiture of the cash is sought on the basis that it is tainted because it had been acquired, directly or indirectly, from significant criminal activity by Mr Hahn,2 namely as a result of:

(a)the sale of cannabis in contravention of s 6(1)(e) and 6(2)(c) of the Misuse of Drugs Act 1975; and/or

(b)knowingly failing to declare income from taxable activities in contravention of s 143B of the Tax Administration Act 1994; and/or

(c)criminal offending from which property, proceeds, or benefits to the value of $30,000 or more had, directly or indirectly, been acquired or derived.

1      Criminal Proceeds (Recovery) Regulations 2009, reg 12; Commissioner of Police v Hahn [2021] NZHC 1870.

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

[4]    The sale of cannabis and knowingly failing to declare income from taxable activities are offences punishable by a maximum term of imprisonment of five years or more and thereby amount to significant criminal activity under the Act.3

[5]    In support of his application, the Commissioner filed an affidavit from Detective Christopher Maitland of the Christchurch Police. He is an officer attached to the Financial Crime Group of the New Zealand Police and its Southern Asset Recovery Unit, which has responsibility for the investigation of individuals suspected of accumulating wealth or assets from significant criminal activity.

[6]    Detective Maitland has deposed that up until his deportation Mr Hahn had stayed in  New Zealand  for  extended  periods.  He  last  entered  the  country  on  31 December 2019 on a visitor visa that expired on 11 January 2020. However, he remained in the country until his deportation in November of that year. While in  New Zealand, Mr Hahn’s residential address was 142 Park Street, Queenstown.

[7]    On 17 November 2020, police accompanied Immigration officers to the Park Street address to assist with Mr Hahn’s deportation. Upon entering the premises, police noticed cannabis on a table in the lounge. As a result, the property was searched pursuant to the Search and Surveillance Act 2012. Items found included a small amount of cannabis, utensils for using cannabis, half a tab of LSD, a tick list and a significant amount of cash.

[8]    The cash amounted to $32,640. It, together with the tick list, were found in Mr Hahn’s bedroom. The cash was packaged in two sealable plastic bags found inside another bag, together with the tick list. Some further cash was located in a nearby cabinet. The cannabis, also found in a sealable plastic bag, was located in the lounge, while the half tab of LSD was found in a bedside drawer in another bedroom and was attributed to a flatmate.

[9]    When interviewed, Mr Hahn declined to make a formal statement, although he accepted the cash was his. He said he was doing up cars for people who were selling their vehicles and they would give him some cash. He also claimed that he sometimes

3      Section 6.

sold firewood for cash. He confirmed that he was unemployed, and claimed he had been made redundant in February 2020. Mr Hahn was unable to provide the names or identities of any of the persons he allegedly repaired or sold cars to or any details about where he got the firewood from.

[10]   Mr Hahn’s Trade Me account was checked. The transactions that he had been involved in did not explain his possession of such a large amount of cash. A flatmate who was spoken to was unaware as to how Mr Hahn came into possession of such a large sum of money but confirmed that he always paid his rent in cash. When it was put to Mr Hahn that the money was from drug dealing, he denied that was the case.

[11]   Enquiries made of Inland Revenue revealed that Mr Hahn’s employment in New Zealand with Real Journeys Ltd ended at the end of November 2018. The Inland Revenue’s records did not show any other employment since that date and revealed he had not declared any further income since a last payment of PAYE in November of that year. As Detective Maitland notes, that meant Mr Hahn had gone for some 722 days without any declared income.

[12]   Production orders relating to Mr Hahn’s ANZ Bank accounts revealed a large number of cash deposits made via ATMs in Queenstown. Detective Maitland deposed that these amounts are consistent with the sale of pounds of cannabis.

[13]   In summary, therefore, Mr Hahn was found in possession of a significant amount of cash despite being unemployed and with no visible means of income or support, yet has received significant cash deposits into his bank account. It is also noted that the cash was located with a handwritten document (the tick list) which is consistent with a record of drug sales — that note being located in the same bag as the cash. Enquiries made by the police into Mr Hahn’s explanation for being in possession of such a large amount of cash revealed no evidence that supported his claims of having worked on or sold vehicles or firewood.

[14]   These being the uncontroverted circumstances of Mr Hahn’s possession of the cash, I am satisfied under s 50 that the Commissioner has proved, on the balance of probabilities, that the $32,640 is tainted property, being money that has been acquired

from significant criminal activity by Mr Hahn either through the sale of cannabis and/or by knowingly failing to declare taxable activities, both of which constitute significant criminal offending, carrying maximum penalties of imprisonment of a term of five years or more.4 Accordingly, I make an asset forfeiture order in respect of that money.

[15]   As a result of my finding that Mr Hahn has unlawfully benefitted from significant criminal activity to the value of $32,640, and that Mr Hahn has an interest in the property, I make a profit forfeiture order under s 55 of the Act vesting the cash in the sum of $32,640 seized from 142 Park Street, Queenstown, in the Crown absolutely. In accordance with the terms sought in the Commissioner’s application, that property, currently held in a police trust account, is to be placed in the Official Assignee’s custody and control.

Solicitors:

Crown Solicitor, Invercargill

4      Misuse of Drugs Act 1975, s 6(1)(e) and 6(2)(c); Tax Administration Act 1994, s 143B.