Commissioner of Police v Haunui

[2022] NZHC 2348

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-201

[2022] NZHC 2348

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DENNIS HAUNUI

Respondent

Hearing:	(Dealt with on the papers)
Counsel:	K South and K A Courteney A J Bailey for Respondent
Judgment:	12 September 2022

JUDGMENT OF EATON J

[1]                 The Commissioner of Police makes application for an asset forfeiture order.

[2]                 The property the subject  of the application  is $200,040  in  cash  seized  on  9 November 2021 from the respondent’s unit at the Pine Acres Holiday Park.

[3]                 The respondent has through his counsel, Mr Bailey, confirmed he elects not to take an active role in the proceedings and asks the Court to determine the application solely on the evidence filed by the applicant.

[4]Pursuant to s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act):

50       Making assets forfeiture order

(1)If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.

COMMISSIONER OF POLICE v HAUNUI [2022] NZHC 2348 [12 September 2022]

(2)Subsection (1) is subject to section 51.

(3)The Court must specify in an assets forfeiture order the property to which the order applies and that the property—

(a)vests in the Crown absolutely; and

(b)is in the custody and control of the Official Assignee.

(4)Despite subsection (1), the Court may not make an assets forfeiture order in relation to property that no person has claimed an interest in, unless the Court is satisfied, on the balance of probabilities, of the following additional matters:

(a)that a restraining order was earlier made in relation to the same property; and

(b)that the restraining order has been in place for a period of at least 1 year; and

(c)that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.

(5)If any property that is land is vested in the Crown absolutely as a consequence of an assets forfeiture order made under subsection (3), an interest recorded on the title to the land that is not affected by the assets forfeiture order is not extinguished.

[5]                 “Tainted property” is defined in s 5 of the Act as:

tainted property—

(a)means any property that has, wholly or in part, been—

(i)acquired as a result of significant criminal activity; or

(ii)directly or indirectly derived from significant criminal activity; and

(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

[6]                 Significant criminal activity is defined in s 6 of the Act as:

6        Meaning of significant criminal activity

(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—

(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

(b)from which property, proceeds, or benefits of a value of

$30,000 or more have, directly or indirectly, been acquired or derived.

(2)A person is undertaking an activity of the kind described in subsection

(1) whether or not—

(a)the person has been charged with or convicted of an offence in connection with the activity; or

(b)the person has been acquitted of an offence in connection with the activity; or

(c)the person’s conviction for an offence in connection with the activity has been quashed or set aside.

(3)Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).

[7]                 Having reviewed the evidence of Detective Bruce, I am satisfied that the cash is tainted property as it was acquired as a result of, or derived directly or indirectly from, significant criminal activity.

[8]                 The evidence satisfies me the respondent has a proven association to the Tribesmen gang and has previous convictions for supply of methamphetamine, selling methamphetamine and participating in an organised criminal group. He has other convictions for drug offending.

[9]                 Further, the cash was located alongside cannabis and other drug paraphernalia including two glass pipes used to smoke methamphetamine, a notebook including entries indicating a tick list and two cell phones indicating use of multiple phones. Mr Haunui advanced the implausible explanation that the cash represented his life savings. A review of his personal bank accounts and his Inland Revenue records provide no support for that explanation.

[10]            Finally, Detective Bruce refers to Mr Haunui having made multiple trips between Christchurch and destinations in the North Island between April 2021 and

19 September 2021, suggesting travel more consistent with drug related activity than legitimate activity.

[11]            Having regard to that evidence I am satisfied on the balance of probabilities the cash is tainted. I must therefore make an assets forfeiture order and I do so in terms of the draft order.

...................................................

Eaton J

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to:

Andrew Bailey, Barrister, Christchurch