Commissioner of Police v Higgins

[2024] NZHC 180

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-000163

[2024] NZHC 180

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JAYDE WILLIAM CHARLES HIGGINS

Respondent

Hearing:	On the papers
Appearances:	R W Jenson for Applicant
Judgment:	15 February 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 15 February 2024 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………..

COMMISSIONER OF POLICE v HIGGINS [2024] NZHC 180 [15 February 2024]

Introduction

[1]                 The Commissioner of Police seeks a type 1 assets forfeiture order under s 50 of the Criminal Proceeds (Recovery) Act 20091 in relation to the sum of $14,555 in cash seized from the respondent, Mr Jayde Higgins, by the Police on 26 October 2022.

[2]                 The basis for the Commissioner’s application is that the seized funds are tainted property in that they have been acquired or derived from the sale of methamphetamine.

[3]                 The application has been served on Mr Higgins. However, to date he has taken no steps to respond or oppose the application.   Moore J, by way of minute dated    12 December 2023, directed the Commissioner to file and serve submissions with a view to the matter being referred to a Judge to consider and determine the application. Moore J’s minute was served on Mr Higgins but no notice of opposition or submissions in opposition have been filed by him.

[4]The application is accordingly being determined on the papers.

Background

[5]                 On 26 October 2022, the Police executed a search warrant at Mr Higgins’ home address. During the search Police found a bag containing approximately 376 grams of methamphetamine sealed in a zip lock bag inside a snap lock plastic container. Located in the same room, occupied by Mr Higgins was a dark blue waist bag containing $14,555 cash.

[6]                 In addition to the search, Police also uncovered evidence of drug-dealing activity by Mr Higgins in intercepted phone calls, and text messages during the period from 1 to 30 September 2022.

[7]                 Mr Higgins was subsequently convicted on charges of supplying methamphetamine, possessions of methamphetamine for supply, perverting the course of justice and driving while disqualified in relation to the material found during the

1      The 2009 Act.

search on 26 October 2022 and the intercepted phone calls and text message communications.

[8]                 Mr Higgins had only been released from custody around three months prior to the search on 26 October 2022. He had previously been held in custody on remand or as sentenced prisoner from 18 February 2022. During the period following his release, Mr Higgins did not have any regular income from wages or state-funded benefits.

[9]                 However, during that period there were cash deposits and direct credits into his bank account totalling over $12,523.15. This included two deposits which could be directly traced to one of the methamphetamine sales evidenced through the intercepted communications.

[10]            Mr Higgins did not offer an explanation at the time when he was arrested and as noted above, has taken no steps to oppose these proceedings.

Relevant legal principles

[11]            The primary purpose of the 2009 Act is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity.2

[12]            “Significant criminal activity” is defined in s 6 and “tainted property” is defined in s 5.

[13]            Pursuant to s 50(1) of the 2009 Act, if the Court is satisfied on the balance of probabilities that property is tainted property the Court must make a type 1 assets forfeiture order in respect of that property.

Analysis and decision

[14]            I am satisfied that the evidence establishes the quantum of cash found during the search on 26 October 2022 is tainted property as defined by the legislation. Those

2      Criminal Proceeds (Recovery) Act 2009, s 3(1)(a).

cash proceeds were acquired directly or indirectly from the sale of methamphetamine, namely significant criminal activity.

[15]            Mr Higgins was of course convicted of selling methamphetamine and the cash was, as the evidence establishes, found together with a significant quantity of methamphetamine (with a wholesale value of approximately $91,000).

[16]            I am also satisfied that neither the sums paid into Mr Higgins’ bank account nor the cash found during the search has an identifiable legitimate source. The evidence establishes that Mr Higgins’ involvement in drug-dealing activity is the source of the funds and the cash found during the search is therefore tainted.

Result

[17]I grant the Commissioner’s application.

[18]            I make a type 1 asset forfeiture order pursuant to s 50 of the 2009 Act. I conclude that the $14,555 cash is tainted property.

Andrew J