Commissioner of Police v Hines

[2023] NZHC 3591

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000852

[2023] NZHC 3591

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

MOSSY HINES

Respondent

Hearing:

8 December 2023

Appearances:

M R Harborow for applicant

No appearance for respondent, his counsel J C Harder having been excused

Judgment:

8 December 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 8 December 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: MC, Auckland

CoP v HINES [2023] NZHC 3591 [8 December 2023]

[1]                 In March 2021, the police executed a search warrant at Mossy Hines’ home in Pakuranga, Auckland. They found a total of $63,610 in cash, including $20,000 hidden in his underpants. They also found a firearm, ammunition, and small amounts of controlled drugs. He was arrested and charged with various offences.

[2]                 In June 2022, the police arrested Mr Hines again, this time at the SkyCity casino in Auckland. They had executed a search warrant at his home in Howick, finding ammunition and what appeared to be cannabis plant, but he was not home. When they found Mr Hines at SkyCity, he had $10,370 in cash in the satchel he was carrying.

[3]                 In September 2022, the police searched the Gucci bum bag Mr Hines was carrying as he parked and walked from his car in Highland Park, Auckland. It contained around 43 grams of methamphetamine, some cannabis plant, and $15,296 in cash.

The Commissioner’s application

[4]                 All the cash was seized. The Commissioner applies for its forfeiture under the Criminal Proceeds (Recovery) Act 2009.

[5]                 For more than one year,1 the cash has been restrained under orders made in the course of this proceeding, with Justin Harder entering appearances on Mr Hines’ behalf so as to protect his position while various criminal charges have been progressed through the District Court.  Those  charges  have  now  been  resolved. Mr Harder has confirmed by memorandum that Mr Hines consents to the Commissioner’s forfeiture application. No other person appears to be interested in the cash.

The threshold

[6]                 Under s 50(1) of the Act, I must make a type 1 assets forfeiture order in respect of the cash if satisfied on the balance of probabilities that it is tainted property. Tainted property is property that has, wholly or in part, been acquired as a result of significant

1      Refer, Criminal Proceeds (Recovery) Act 2009, s 50(4).

criminal activity, or directly or indirectly derived from significant criminal activity.2 Significant criminal activity is activity engaged in by a person that if proceeded against as a criminal offence would amount to offending that consists of, or includes, one or more offences punishable by a maximum term of imprisonment of five years or more, or from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.3

Is the cash tainted property?

[7]                 Mr Hines is a patched member of the Head Hunters gang, with a range of criminal convictions, including for possession of methamphetamine for supply. During the period from 20 September 2014 to 9 June 2022, the only income he declared to Inland Revenue was comprised of benefit payments totalling $6,850.76. I note that he was only out of prison for around two years in that period.

[8]                 In that period, only one New Zealand trading bank account was operated in Mr Hines’ name. It was opened in April 2019 and closed in June 2020 due to account inactivity, having received less than $10,000 from the Ministry of Social Development, around $15,000 in cash deposits, and around $40,500 in unexplained third party deposits which did not resemble salary, wages or rental income.

[9]                 When Mr Hines was arrested in March 2021 and June 2022, he exercised his entitlement not to comment on the cash. When arrested in September 2022, he said that the $15,296 cash in his bum bag came from selling a car the previous evening. He has offered no further explanation.

[10]              Overall, I am satisfied that the cash is tainted property. The apparent lack of legitimate sources of income, and the regular finding of cash sums in proximity to amounts of controlled drugs, demonstrates that it is likely the cash was acquired or derived from selling controlled drugs, and if not then in any event from the evasion of tax.

2      Criminal Proceeds (Recovery) Act 2009, s 5(1).

3      Section 6(1).

Result

[11]              I make a type 1 forfeiture order in terms of paragraph 1(a) of the Commissioner’s application dated 19 October 2022, except that the forfeited property is to include any interest accrued upon the cash following its deposit into a bank account.

[12]There is no costs order.

Johnstone J