Commissioner of Police v Heller

[2017] NZHC 721

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000417 [2017] NZHC 721

IN THE MATTER

of the Criminal Proceeds (Recovery) Act

2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

RICHARD JOSEPH HELLER Respondent

Hearing:	12 April 2017 (by AVL)
Appearances:	M Dillon for Crown No appearance by or for Respondent
Judgment:	12 April 2017

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

Copy to:            Respondent

THE COMMISSIONER OF POLICE v HELLER [2017] NZHC 721 [12 April 2017]

[1]      The Commissioner seeks an order vesting the sum of $13,051 cash in the

Crown.

[2]      The respondent, Mr Heller, was a serving prisoner.  He has been served with the application and other minutes of the Court.  There are a number of affidavits of service on file confirming service of the application and minutes.  Importantly, there is an affidavit on service confirming the most recent adjournment of this matter to today’s mater.

[3]      Mr Heller has failed to appear this morning or to arrange an appearance on his behalf.

[4]      The application has been called before the Court on two previous occasions. It appears from minutes of the Court and the report of the officers who have served Mr Heller with the Court papers, that Mr Heller does not wish to engage with the application.  In the last minute of the Court issued on 15 March Brewer J directed that:

[3]      Accordingly, I direct that the case be called again at 9:00 am on 5

April 2017.  Mr Heller must attend in person or by legal representative if he wishes to be heard on the application.  Mr Heller should know that if he does

not attend or is not represented, then the assets forfeiture application might

be granted.

[5]      There was no hearing on the 5 April 2017.  The hearing on 5 April 2017 was adjourned to today’s date, but notice of that adjournment was itself served on Mr Heller, as was a copy of the Judge’s direction in that minute.

[6]      In the absence of an appearance for Mr Heller and in the absence of any papers filed on his behalf, I propose to deal with the application as the Brewer J anticipated, may be the case.

[7]      The issue for the Court is whether the $13,051 is tainted property.   If the Commissioner can satisfy the Court on the balance of probabilities it is then the Court must make an assets forfeiture order subject to s 51 of the Criminal Proceeds (Recovery) Act 2009.

[8]      Tainted property is property that has wholly or in part been acquired as a result of significant criminal activity or has been directly or indirectly derived from significant criminal activity.  The Commissioner says the money is the proceeds of the sale of the Class A controlled drug methamphetamine.  The sale of such a drug is a significant criminal activity.

[9]      The circumstances in which the $13,051 were located are as follows.

[10]     Following a search of Mr Heller and a car that he was in at Opoia Road, Hamilton on 1 September 2016 the police located three snap-lock bags and a black over-shoulder bag.  Located within the over-shoulder bag was a small set of digital scales, a further 17 empty snap-lock bags and cash totalling $13,051.

[11]     The snap-lock bags were of the type which methamphetamine is commonly sold in at street level, namely point bags.  The scales are of the type commonly used in drug deals.  When the respondent was searched further, two snap-lock bags fell out of his clothing onto the floor, one of which contained white powder.  A test on the white powder showed a positive result for methamphetamine.    The methamphetamine weighed .65 grams.

[12]     There is no explanation at all before the Court how Mr Heller came to be in possession of in excess of $13,051 in cash.  When asked by the police officer why he was in possession of so much cash Mr Heller replied:  “Not going to answer that, mister”.   Inland Revenue records record that Mr Heller’s sole income for the last four years has been payments from the Department of Social Welfare.  For the last six years his average income is just over $7,000, largely from welfare benefits.  In addition Mr Heller has a previous conviction for possession of methamphetamine.

[13]     On the basis of the evidence before the Court, I am satisfied that on the balance of probabilities the money found in Mr Heller’s possession was the proceeds of sale of methamphetamine.  As such the money is tainted property.

[14]     There is nothing before the Court to suggest that s 51 is engaged, namely there is nothing to suggest that undue hardship would be reasonably likely to be caused to Mr Heller if the cash is forfeited.

[15]     There will be an order in accordance with s 50 of the Act that the cash is forfeited to the Crown.  It is to be in the Official Assignee’s custody and control.

Venning J