Commissioner of Police v Harrieder
[2020] NZHC 2797
•23 October 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-000045
[2020] NZHC 2797
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
SVEN STEPHEN HARRIEDER
First Respondent
AND
JUSTIN CHRISTOPHER HAMILTON
Second Respondent
Hearing: 20 October 2020 Appearances:
R W Donnelly for Crown
No appearance for Respondents
Judgment:
23 October 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 23 October 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 23 October 2020
[1] The Commissioner of Police (the Commissioner) applies for asset forfeiture orders against both respondents under s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act), in respect of the following cash sums:
(a)$117,405.80 in cash located in the room occupied by the first respondent, Mr Sven Stephen Harrieder at Deco Backpackers, 52 Man Street, Queenstown, on 25 June 2020;
COMMISSIONER OF POLICE v HARRIEDER [2020] NZHC 2797 [23 October 2020]
(b)$40.00 (United States) cash located in the room occupied by Mr Harrieder at Deco Backpackers on 25 June 2020;
(c)$770.00 (Australian) in cash located at the room occupied by Mr Harrieder at Deco Backpackers on 25 June 2020;
(d)$11,956.90 located in the room occupied by the second respondent, Mr Justin Christopher Hamilton, at Deco Backpackers on 25 June 2020.
[2] The orders are sought on the grounds that the proposed forfeited property is tainted property having been acquired directly, or indirectly, from significant criminal activity committed by Mr Harrieder and Mr Hamilton, namely from the sale of cannabis or other controlled drugs in contravention of s 6 of the Misuse of Drugs Act 1975.
[3] A profit forfeiture order is also sought in respect of the sum of $118,231.90 (being the combined New Zealand dollar value of the cash sums listed above) but, for reasons I explain below, that order is not pursued.
The procedural history
[4] The application was initially filed on 5 August 2020 seeking orders, vesting in the Crown, the two sums of cash in New Zealand dollars listed in 1(a) and (d) above.
[5] On 8 September 2020, the Commissioner filed an amended application seeking orders vesting, in the Crown, the additional sums of cash in US dollars and Australian dollars which were also located in Mr Harrieder’s room. The applications were both supported by an affidavit from a police officer, Detective Christopher Lee Maitland, setting out the evidence in support of the application. The initial application and supporting affidavit were served on Mr Harrieder and Mr Hamilton on 24 August 2020, and the amended application and supporting affidavit were served on both respondents on 8 September 2020.
[6] The applications advised Mr Harrieder and Mr Hamilton that they were to be considered by the High Court in a telephone conference on 21 September 2020 at
2.30 pm. No notices of opposition were filed with the High Court in advance of the telephone conference, although, as Nation J noted in his minute dated 22 September 2020, the amended applications were not served on the two respondents more than 10 working days before the scheduled hearing.
[7] Nation J also noted it was not apparent from the affidavits of service that had been filed with the Court whether Mr Hamilton was served with a copy of the affidavit in support of the original application. As a consequence, Nation J made directions to ensure both respondents had the complete set of documents supporting the applications, as well as time to respond. They were directed to file a notice of opposition advising the Court of the grounds on which they oppose the application no later than 14 October 2020. The initial hearing of the application was then scheduled to proceed on 20 October 2020, with the warning that if no notice of opposition had been filed with the Court by either respondent, then the application would be dealt with by the Court on the basis of the evidence already filed.
[8] I have on file affidavits confirming that both respondents were served with the original and the amended application along with the supporting affidavits, as well as a copy of the minute of Nation J dated 22 September 2020.
[9] No notice of opposition was filed by either respondent in advance of hearing and there was no appearance by either of them at the hearing on 20 October 2020. Accordingly, I determined the application after hearing from the applicant alone.
Amendment of the application
[10] The Commissioner filed an amended application on 8 September 2020. However, the Act limits the circumstances in which an amended application can proceed. Section 47(2) provides that the Court:
… must not amend an application for a civil forfeiture order to include additional property, proceeds, or benefits unless the Court is satisfied that –
(a) the additional property, proceeds, or benefits were not reasonably able to be identified when the application for the civil forfeiture order was made; or
(b) the evidence necessary to support the application in relation to the additional property, proceeds, or benefits only became available after the application for the civil forfeiture order was made.
[11] In the present case, Mr Donnelly acknowledges that the small sums in foreign cash were found during the search which precipitated the original application. However, he submitted that the circumstances fell within s 47(2)(b) in that there was insufficient evidence as to the source of the small sums of foreign cash found in Mr Harrieder’s room which was resolved when he was sentenced on 10 August 2020. At the hearing the Judge made a finding, noting that Mr Harrieder did not dispute it, that the money in currency from the United States and Australia was derived from earlier sales of drugs.1
[12] In the circumstances, I am satisfied that the evidence necessary to support the application in relation to the additional property only became available after the application for civil forfeiture order was made, and I permit the application to be amended accordingly.
The application for asset forfeiture orders
[13] The affidavit evidence of Detective Christopher Lee Maitland filed in support of the application confirms that:
(a)a search warrant was executed at Deco Backpackers, situated at 52 Man Street, Queenstown in relation to the suspected supply of Class A, B and C controlled drugs by Mr Harrieder and two of his associates, including Mr Hamilton;
(b)during that search the first three cash sums sought to be forfeited, along with LSD and cannabis, were located in Mr Harrieder’s room; and
1 R v Harrieder [2020] NZDC 16138 at [34].
(c)the remaining cash sum sought to be forfeited, along with 92.64 g of cannabis packaged for sale, were located in Mr Hamilton’s room.
[14]As a result of these discoveries, Mr Harrieder was charged with:
(a)possession of LSD;
(b)possession of cannabis for supply; and
(c)failure to carry out obligations in relation to a computer search.
[15]Mr Hamilton was charged with:
(a)possession of cannabis for supply.
[16] Detective Maitland’s affidavit explains his reasons for believing the cash sums came from the supply and sale of cannabis and other illegal drugs. In particular:
(a)both respondents pleaded guilty to the charges at the Queenstown District Court on 3 July 2020;
(b)neither Mr Harrieder, nor Mr Hamilton, offered any alternate explanation for being in possession of the cash; and
(c)Mr Harrieder had no known income during his period of time in New Zealand, and Mr Hamilton had only declared a total income of
$2,649.22 earned in New Zealand since his arrival in June 2019.
[17] Having regard to this background, I am satisfied that the Commissioner has established, on the balance of probabilities, that the monies are tainted property for the purposes of the Act. In coming to that conclusion, I am particularly influenced by:
(a)the finding of large sums of cash alongside drugs packaged for sale in both the respondents’ rooms at Deco Backpackers; and
(b)the absence of any evidence as to a legitimate source of that cash.
Result
[18] The asset forfeiture orders sought in respect of the sums listed at para 3 of the amended application for asset and profit forfeiture orders are made.
[19] As the profit forfeiture order was sought in the alternative, and in any event, does not exceed the value of the asset forfeiture order made, Mr Donnelly acknowledged that there was no requirement to make that order in addition to the asset forfeiture orders.
Solicitors:
Preston Russell Law, Invercargill
0
0
1