Commissioner of Police v Horn

[2025] NZHC 3038

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2025-463-000114

[2025] NZHC 3038

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KYLE DAVID HORN

Respondent

STACEY LEE CONWAY
Interested Party

DARREN JOHN CONWAY

Interested Party

Hearing:	On the papers
Appearances:	A J Gordon for Applicant
Judgment:	14 October 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 14 October 2025 at 2.00 pm

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

Date: …………………………….

COMMISSIONER OF POLICE v HORN [2025] NZHC 3038 [14 October 2025]

Introduction

[1]    The Commissioner of Police, the applicant, seeks a type 1 assets forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (the 2009  Act)  against Kyle Horn, the first respondent.

[2]The order sought involves two sums of cash:

(a)$19,247.50 that was recovered from the respondent’s Holden Commodore vehicle, registration HNJ624 on 24 May 2017 (the 2017 cash); and

(b)$18,140.00 located at the respondent’s residence of 17b Prospect Avenue, Tirau, on 9 June 2020 (the 2020 cash).

[3]    Mr Horn and the interested parties have been served with the proceedings but none of them have taken any steps to defend them. Accordingly, this judgment is being determined as a matter of formal proof.

Factual background

[4]    The full background is set out in the affidavit of Zoe Murrell in support of the Commissioner’s application.

The 2017 cash

[5]    In the early hours of 24 May 2017, the Police were dispatched to a “suspicious vehicle” that was stopped, partly on the road, outside 3954 State Highway 27, Tatuanui. Mr Horn was asleep in the driver’s seat of the vehicle. The engine was running and the lights were on. As Mr Horn was a disqualified driver, the vehicle was impounded.

[6]    The vehicle was searched, and cash was located in two quantities: $13,300 cash was located hidden under the left side back seat, and $5,947.50 was located in an envelope in the rear seat arm rest.

[7]    When interviewed sometime later (namely, on 10 October 2018) about the cash, Mr Horn stated that he had no knowledge of the cash or who it belonged to.

[8]    Also located in the car was a snap lock bag that contained a crystal residue, believed to be methamphetamine. The evidence located was, however, insufficient to establish beyond reasonable doubt that Mr Horn had been dealing in methamphetamine. No charges were laid.

The 2020 cash

[9]    The Police executed a search warrant on 9 June 2020 at Mr Horn’s address. Cash was located at that address in three separate locations:

(a)$14,780 in the hot water cupboard;

(b)$50 in a draw in the master bedroom;

(c)$3,310 under the rear passenger’s seat of Mr Horn’s vehicle.

[10]   In addition, 27.2 grams of methamphetamine, 276.2 grams of cannabis, a firearm and other paraphernalia consistent with the dealing of drugs were located (scales and unused snap lock bags).

[11]   Mr Horn was ultimately charged and convicted of possession of methamphetamine for supply and unlawful possession of a firearm.

Legal principles

[12]   If the Court is satisfied, on the balance of probabilities, that the property is “tainted”, then the Court must make a type 1 assets forfeiture order.1

[13]   “Tainted property” means any property that is, wholly or in part, acquired as a result of, or directly or indirectly derived from, significant criminal activity.2

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

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

[14]   “Significant criminal activity” includes engaging in an activity which, if proceeded against as a criminal offence, would amount to offending punishable by a maximum term of imprisonment of at least five years.3

[15]   The Court is entitled to draw inferences from established criminal activity, evidence of disparity between assets and legitimate income, and a lack of a credible explanation.4

Analysis and decision

[16]   Mr Horn’s conviction in 2022 is conclusive proof that he committed the offence of possessing methamphetamine for supply.5 Possessing methamphetamine for supply is, of course, a qualifying offence amounting to significant criminal activity under s 6 of the 2009 Act.

[17]   I acknowledge that Mr Horn does not have an associated conviction for a serious criminal offence in relation to the 2017 cash. However, that cash was found in suspicious circumstances and he was arrested and convicted of possession of methamphetamine in September 2017 in somewhat similar circumstances — namely being in possession of a small quantity of methamphetamine, a large amount of cash, and weapons and ammunition. I agree with the submission of the Commissioner that these features strongly suggest that Mr Horn was dealing in methamphetamine in 2017.

[18]   Inland Revenue Department records show that Mr Horn declared an average annual total gross income of $5,411.85  for the period between 1 April 2017 and     31 March 2023. In particular, for the financial year ending March 2017, Mr Horn had no declared income, and for the year ending 2018, his only declared income was the sum of $3,933.56. For the year ending March 2020, his declared income was

$1,083.53, and for the 2021 financial year, it was $2,489.56.

3      Criminal Proceeds (Recovery) Act 2009, s 6(1)(a).

4      Haywood v Commissioner of Police [2014] NZCA 624 at [39]–[42]; and Commissioner of Police v Dryland [2013] NZCA 247 at [39].

5      Evidence Act 2006, s 47.

[19]   On the evidence before me, there is no legitimate explanation for Mr Horn being in possession of either the 2017 or 2020 cash.   As noted in the affidavit of   Ms Murrell, Mr Horn has provided no explanation at all for the source of the cash that was seized. In relation to the 2017 cash, he expressly disowned it and, in relation to the 2020 cash, attempted to distance himself from it.

[20]   In respect of the 2020 cash, Ms Conway, the interested party, was residing at the address and was Mr Horn’s partner. She refused to speak to the Police at the time of the search and has denied any knowledge of the drugs and firearms found at the address. She has made no claim on any of the 2020 cash.

[21]   Mr Conway, the other interested party, has suggested that the cash found on top of the hot water cylinder ($14,780) in 2020 belonged to him. However, he has provided three different explanations as to the source of that cash.

[22]   I accept the submission of the Commissioner that the investigations into the source of the funds as detailed in the three versions given by Mr Conway have established that the funds cannot have been obtained by him in any of the ways he has described.

[23]   In all the circumstances, I find that, given Mr Horn’s proven offending of possessing methamphetamine for supply in 2020, a clear inference can be drawn from the evidence located with the 2017 cash and the subsequent search of Mr Horn some four months later (and the items in his possession on that occasion) that he was also dealing in methamphetamine at that time. I note that he also has two convictions in November 2019 for possessing methamphetamine for supply in June 2018.

[24]   Having regard to all the evidence, I am satisfied on the balance of probabilities that the cash was derived and acquired through significant criminal activity, namely the sale and supply of methamphetamine.

[25]   I therefore conclude that all of the cash seized by the Police is tainted property pursuant to the 2009 Act and should be the subject of forfeiture.

Result

[26]   The application by the Commissioner for a type 1 assets forfeiture order is granted.

Andrew J