Commissioner of Police v Horopapera
[2025] NZHC 856
•10 April 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2020-463-48
[2025] NZHC 856
BETWEEN COMISSIONER OF POLICE
Applicant
AND
JOSEPH PATARA TE KOHI HOROPAPERA
First Respondent
CHEYENNE ANDREA STAUNTON
Second RespondentGARETH LUKE TABENER
Third RespondentCLAYTON HERBERT GRANT
Fourth RespondentTONY THOMAS HERBERT
Fifth RespondentCont../2
Hearing: 11 March 2025 Appearances:
C H Macklin for Applicant
J W Howell for First Respondent
T J Conder for Second Respondent/Interest Party Staunton P V Cornege for Sixth Respondent
Judgment:
10 April 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 10/04/2024 at 9 am Pursuant to Rule 11.5 of the High Court Rules
………………………
Registrar/Deputy Registrar
COMISSIONER OF POLICE v HOROPAPERA & ORS [2025] NZHC 856 [10 April 2025]
Cont:../1
AND
TINA MURTAGH
Sixth Respondent
ANZ
Interested PartyHEARTLAND BANK
Interested PartyCO-OPERATIVE BANK
Interested PartyWESTPAC
Interested Party
Introduction [1]
Background[5]
Procedural history [11]
The law[16]
Discussion[22]
19 September 2024 affidavit [40]
Paragraph 2.17[40]
Paragraph 2.19[42]
Paragraph 2.23[44]
Paragraph 2.31[45]
Paragraph 3.10[49]
Paragraph 3.15[52]
Paragraph 3.17[55]
Paragraph 3.21[56]
Paragraph 3.23[58]
Paragraph 3.24[59]
Paragraph 3.25[61]
Paragraph 3.26[62]
Paragraphs 3.27–3.33[64]
Paragraph 3.42[67]
Paragraph 3.44[69]
Paragraph 3.46[72]
Paragraph 3.47[76]
Paragraph 3.48[78]
Paragraph 3.50[79]
Paragraphs 3.51–3.52[80]
Paragraph 3.53[82]
Paragraph 3.55[83]
Paragraphs 3.60–3.67[86]
Paragraph 3.68[88]
Paragraph 3.71[90]
Paragraphs 3.75–3.79[91]
Paragraph 3.85[92]
Paragraph 3.86[93]
Paragraph 3.87[94]
Paragraphs 3.91–3.96[98]
Paragraph 3.97[99]
Paragraph 3.98[100]
Paragraph 3.100[102]
Paragraph 3.103[104]
Paragraph 3.108[105]
Paragraphs 3.110–3.111[106]
28 January affidavit [107]
Paragraph 3.9[109]
Paragraph 3.12[110]
Paragraphs 3.15–3.19[111]
Paragraph 3.20[112]
Paragraphs 3.21–3.26[115]
Paragraph 3.39[116]
Paragraph 3.43[118]
Paragraph 3.44[121]
Paragraphs 3.45–3.49[123]
Paragraphs 3.51–3.52[124]
Paragraphs 3.63–3.67[127]
Paragraphs 3.73–3.75[132]
Paragraphs 3.84–38.5[133]
Paragraphs 3.89–4.13[134]
Conclusion[138]
Introduction
[1] The Commissioner of Police (Commissioner) seeks civil forfeiture orders pursuant to the Criminal Proceeds (Recovery) Act 2009 (CPRA). The hearing of the substantive application was scheduled for 10 March 2025 but was unable to proceed because the available time was insufficient. An outstanding pre-trial application relating to admissibility of evidence was dealt with on 11 March 2025 instead. This decision relates to the admissibility objections.
[2] The second and sixth respondent, supported by other respondents, object to aspects of the evidence of Linda Tamehana contained in two affidavits:
(1)affidavit dated 19 September 2024; and
(2)affidavit dated 28 January 2025.
[3] The respondents say that large parts of Ms Tamehana’s affidavits are inadmissible because they contain hearsay or opinion or submission.
[4] The Commissioner says that the objections are largely technical, and no prejudice arises from the evidence objected to. In respect of the hearsay objections, the Commissioner says that addressing the objections will add nothing but time and expense. The Commissioner submits that, at most, the objections may go to weight rather than admissibility.
Background
[5] The criminal offending which underlies the applications was investigated in a police investigation called “Operation Morepork” which concluded on 19 August 2020.
[6] Investigators discovered that from around late 2018 the respondents, Mr Horopapera, Mr Atkins (who is now deceased), Mr Tabener, Mr Grant and Mr Herbert cultivated cannabis on an industrial scale. They sold cannabis in pound lots for approximately $5,000 to $6,000 per pound.
[7] Large commercial premises in five different locations were leased in Rotorua, Taupō and Hamilton. Of these, four were operational when police terminated Operation Morepork. Growing tents were placed inside to accommodate hundreds of plants growing on continuous cycles. Electricity was supplied via a meter bypass resulting in large amounts of power being stolen from the supplier. The enterprise was capable of generating over $7 million cash annually from cannabis growing and selling. Rental outgoings annually were almost $300,000. The group had spent over
$200,000 on equipment including a $20,000 specialised harvester/trimmer.
[8] By application dated 30 June 2023, the Commissioner seeks profit forfeiture orders in the sum of $456,375. Alternatively, the Commissioner seeks asset forfeiture orders in respect of property including two houses which are the family homes of Ms Murtagh and Ms Staunton.
[9] The first to fifth respondents are the principal founders and managers of the cannabis cultivation and sale operation. The other respondents are their workers and spouses.
[10] Three respondents remain actively opposed to the application for forfeiture orders. They are Mr Horopapera, Ms Staunton (as executor for the former second respondent Mr Atkins, and in her own capacity as the late Mr Atkins’ former partner), and Ms Murtagh who is Mr Horopapera’s partner.
Procedural history
[11] Ms Tamehana’s affidavit dated 19 September 2024 was filed and served on 20 September 2024. On that date, Ms Murtagh gave notice that she objected to the admissibility of the affidavit on the basis that it was not limited to matters that Ms Tamehana had direct knowledge, much is in the nature of submission and inadmissible opinion evidence and/or hearsay evidence.
[12] The Commissioner subsequently filed Ms Tamehana’s further affidavit dated 28 January 2025. The respondents say that later affidavit suffers from the same flaws as the 19 September affidavit and further says that the Commissioner should not be permitted to file the January affidavit because it was filed after 20 September 2024
which was the last date for filing reply evidence. The respondents acknowledge that the adjournment of the substantive hearing mitigates the prejudice caused by the late filing of the January affidavit, but says the Commissioner is materially in breach of the agreed timetable.
[13]The 19 September 2024 affidavit replies to the affidavits of Ms Staunton and
Ms Murtagh (dated 22 February 2024 and 31 May 2024 respectively).
[14]The 28 January 2025 affidavit replies to Mr Horopapera’s affidavit dated
31 May 2024.
[15] Counsel for the Commissioner acknowledges frankly that the timetable was overlooked but says that the material in the January affidavit could be adduced at the hearing. Oral evidence can be offered at a hearing pursuant to r 19.13 of the High Court Rules 2016 (HCR), and the Commissioner submits that this combined with r 1.2 and 1.6 appropriately permits the Court to hear late or even unprepared evidence in an originating application. The Commissioner says it is fairer to the respondents to include the material in an affidavit in advance of hearing.
The law
[16] To obtain a profit forfeiture order, the Commissioner must prove on the balance of probabilities that the respondent unlawfully benefited from significant criminal activity.1 The onus then shifts to the respondent to disprove the amount of the asserted benefit.2
[17] Profit forfeiture can be challenged on the basis that the named person did not knowingly benefit from the alleged criminal activity and was not wilfully blind as to that; or that the benefit was less than asserted by the Commissioner; or the property to be disposed of is not owned or controlled by the person who received the unlawful benefit.
1 Criminal Proceeds (Recovery) Act 2009, s 55.
2 Section 53(2).
[18] Asset forfeiture orders attach to specific property. The Commissioner must prove on the balance of probabilities:3
(a)“Significant criminal activity” from which proceeds flowed; and
(b)the property in question is “tainted”, in other words it was at least in
part directly or indirectly acquired from the criminal proceeds.
[19] The Evidence Act 2006 permits the Court to hear opinion evidence only from experts or to the extent necessary to enable witness communication or fact-finder understanding, of thing directly observed.4
[20]Section 20(1) of the Evidence Act provides:
In a civil proceeding, a hearsay statement in an affidavit made to support or oppose an application is admissible for the purposes of that application if, and to the extent that, the applicable rules of court require or permit a statement of that kind to be made in the affidavit.
[21] Rule 7.30 of the HCR provides broad discretion to admit statements of belief in affidavits where:
(a)the interests of no other party can be affected by the application; or
(b)the application concerns a routine matter; or
(c)it is in the interests of justice.
Discussion
[22] The Commissioner acknowledges that the hearsay provisions of the Evidence Act apply and the starting point is that hearsay evidence is inadmissible, except where otherwise provided for. However, the Commissioner says that the HCR read together with the Evidence Act, in particular s 20, provides discretion for the
3 Section 50(1). “Tainted property” is defined in s 5(1) to mean property wholly or in part acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity.
4 Evidence Act 2006, ss 23–24.
Court to permit hearsay statements either pursuant to ss 18 or 19 of the Evidence Act, or on the basis that admission is required in the interests of justice relying on r 7.30 of the HCR.
[23] The admissibility of hearsay statements under r 7.30 in the context of applications under the CPRA has been considered recently in the case of Commissioner of Police v Doyle.5 In that case, Andrew J considered obiter comments of Cooke J in the decision of Commissioner of Police v Cheng.6
[24] Andrew J found that r 7.30 applies to applications for civil forfeiture orders.7 His Honour went on to say:
[118] … As the Court of Appeal held in Doyle v Commissioner of Police, the CPRA is one of a number of specific statutory provisions in respect of which it is apparent that “the originating application procedure is envisaged to provide a speedy and inexpensive mechanism for the disposition of a variety of applications.” Furthermore, and as mentioned above, the Court of Appeal has noted the “strongly expressed statutory purpose” of the CPRA. Likewise, the Supreme Court has referred to the “clear and emphatic signal as to the legislative purpose” of the CPRA. In my view, a relaxation of the rules of evidence under the CPRA, albeit in a controlled fashion, as the rules expressly contemplate, is consistent with the CPRA’s clear and broad scheme, which is specifically designed to deter criminal activity and eliminate the potential to profit from it.
[119] I agree, in principle, with Cooke J that where forfeiture orders are sought for substantial sums of money (as in this case), then the Court will look critically at the nature and quality of the evidence and whether the Commissioner has met the standard of proof, namely on the balance of probabilities. I also acknowledge that the statutory scheme of profit and assets forfeiture orders can have a draconian effect. However, in my view, these factors are not determinative of the issue of whether the application of r 7.30 should be limited to restraint applications. The factors in r 7.30 are not only controlling. Rather, the “interests of justice” and the civil standard of on the balance of probabilities are to be applied flexibly, according to the seriousness of matters to be proved and the consequences of proving them.
(footnotes omitted)
[25] In Doyle it was held that the disputed hearsay statements were, in principle, admissible under r 7.30 of the HCR and s 20 of the Evidence Act.8 As was said in
5 Commissioner of Police v Doyle [2024] NZHC 2392.
6 At [112]–[114], referring to Commissioner of Police v Cheng [2023] NZHC 606.
7 Commissioner of Police v Doyle, above n 5, at [115].
8 At [121].
Doyle, s 20 of the Act makes it clear that evidence falling within that section does not need to satisfy ss 18 or 19, however, s 20 operates to admit hearsay only to the extent permitted by the rules.9 Beyond that, the Evidence Act’s controls on admissibility take priority.10
[26]It was also said in Doyle:11
The phrase “statements of belief” in r 7.30(1) includes “statements of information and belief”. Shorland J in Patrick v Attorney-General, held that the effect of the earlier r 185 (the original predecessor to r 7.30) was to give the court power to grant the party the concession of placing hearsay statements before the court where the cost, delay, and inconvenience involved in obtaining an affidavit from a deponent with personal knowledge would be out of proportion to the reasonable necessities of the case. This view has been repeatedly endorsed.
[27] The relevant test for the exercise of the discretion under r 7.30 of the HCR is the interests of justice. It was said in Doyle that the factors in s 18 of the Evidence Act, namely reliability, expense, delay and convenience, are factors that should be taken into account in exercising the discretion under r 7.30.12
[28] In Doyle objections were made as to the conclusory or submission nature of evidence filed on behalf of the Commissioner. In that case, however, there was substantial evidence filed in the form of multiple affidavits and documents, all of which supported the conclusions and submission type opinions contained in the affidavits. Andrew J was ultimately not persuaded there was any real prejudice to the respondents arising from the objections, while acknowledging the need to take care.13
[29] In Commissioner of Police v Cheng, Cooke J was critical of the content of the Commissioner’s evidence that was essentially submission and commentary.14 It was pointed out that this was generally not of any evidential value.15 In Cheng, as set out the evidence comprised two lengthy affidavits filed by the Commissioner, one by a
9 At [110].
10 At [110].
11 At [111].
12 At [124].
13 At [170].
14 Commissioner of Police v Cheng, above n 6.
15 At [30].
detective in the recovery unit and one by an accountant in the same unit.16 There was no other evidence of substance.
[30] In the present case, the evidential situation is closer to that of Commissioner of Police v Cheng than Doyle. The primary evidence comes from Ms Tamehana. Her affidavits purport to include statements of non-witnesses recorded in job sheets, as well as formal written statements of people who are not witnesses.
[31] Some of Ms Tamehana’s evidence involves the production of what are effectively business records likely to be admissible under s 19 of the Evidence Act, but there is also hearsay which falls into two categories:
(1)discussions Ms Tamehana had with others; or
(2)discussions others had with third parties.
[32] Ms Tamahana’s conclusions and submissions are based in part upon this hearsay evidence.
[33] The Commissioner says that some latitude must be permitted to ensure that evidence is presented in such a way as to allow other parties to understand the applicant’s case and respond accordingly.
[34] The sixth respondent, Ms Murtagh, says the Commissioner has adopted a “rough-shod” or “slack” attitude to evidence and says the case is analogous to Cheng where omnibus affidavits were relied on to prove the Commissioner’s case. Ms Murtagh says there is no evidence that the Commissioner has even attempted to obtain affidavits from various witnesses whose evidence is set out in Ms Tamehana’s affidavit. There is no evidence that the witnesses are unwilling or not compellable.
[35] Counsel for the second respondent, Ms Staunton, adopts the submissions made on behalf of Ms Murtagh and objects to particular portions of Ms Tamehana’s evidence that relate specifically to her.
16 At [29].
[36] Counsel for Ms Staunton acknowledges that the prejudice to his client is limited because the Court can give the evidence the appropriate weight and if necessary, no weight, but counsel says the inclusion of inadmissible evidence is unsatisfactory. It creates a burden to respond to the evidence and to cross-examine, needlessly prolonging the trial.
[37] I agree that the problem with some of the purported evidence is obvious when the ability and obligation to cross-examine is considered in respect of opinion evidence, not based on established expertise, or matters that are disputed but the witness has no first-hand knowledge of.
[38] The Commissioner submits that the first affidavit of Ms Tamehana provides the evidential basis for some material in the later affidavits. I have reviewed the earlier affidavit. It sets out in detail an overview of the investigation against all parties, but it does not provide an evidential basis in respect of the specific objections taken.
[39]I turn now to deal with the specific objections.
19 September 2024 affidavit
Paragraph 2.17
[40] Ms Tamehana deposes that on 28 February 2024 she spoke to Ms Staunton’s mother. In the affidavit, Ms Tamehana sets out the statement made by Ms Staunton’s mother. This evidence is clearly hearsay. It records the statements of a person who is not to be called as a witness. I agree with the second respondent that it is evidence that goes far beyond the sort the of evidence that would usually be admitted in the interests of justice pursuant to r 7.30 of the HCR.
[41] This evidence is not admissible in its current form. If the Commissioner wishes to rely on what Karlena Staunton advised Ms Tamehana, then Karlena Staunton will need to be called as a witness. I accept the submissions made on behalf of the second respondent that the evidence is important to Ms Staunton’s claim that she will suffer undue hardship and that presenting it as part of Ms Tamehana’s affidavit means that
Ms Staunton would be prevented or hindered from questioning the accuracy of that information or adducing evidence to place it in context.
Paragraph 2.19
[42] Ms Tamehana refers to enquiries made with a Vero representative about an insurance claim at one of the properties that is the subject of a forfeiture application. A Vero representative advised Ms Tamehana that Vero has voided the client’s policy and there is no cover for fire damage at the property. Ms Tamehana records a statement made to her by Ms Staunton (which is not hearsay providing it meets the wide definition of an admission) and by Ms Staunton’s mother to the effect that they are seeking legal advice regarding the decision made by Vero in respect of the claim.
[43] Information from Vero that the policy had been voided is hearsay. However, this would meet the interests of justice test for admission being evidence not actually in dispute and appearing to be reliable. The relevance of this evidence is not entirely clear to me, but providing that relevance is established to the satisfaction of the trial judge, the evidence is admissible. If it is disputed that Vero voided the client’s policy, the witness will need to give that evidence. That is because Ms Tamehana has no actual knowledge of the matter and cannot be effectively cross-examined about whether the policy has in fact been voided.
Paragraph 2.23
[44] Ms Tamehana reproduces a job sheet from another witness, Mr Baker, which effectively operates as an expansion of Mr Baker’s evidence but in an unsworn form. While this is not strictly hearsay as Mr Baker is a witness, the evidence should be produced by Mr Baker and not Ms Tamehana who has no first-hand knowledge of the matters set out. Mr Baker can be cross-examined about those matters.
Paragraph 2.31
[45] Ms Tamehana set outs that Ms Staunton has received weekly benefit payments from Work and Income (WINZ) in the name of C Mihaka. Ms Tamehana continues in her evidence to set out information from the Police National Intelligence
Application (NIA) showing a link between a Cyris Thomas Mihaka and an associate of Ms Staunton named Whitney Murray. The NIA information suggests that Mr Mihaka is a patched member of the Aotearoa chapter of the Black Power gang.
[46] The relevance of this evidence is not clear. It seems primarily included to demonstrate that Ms Staunton has links to a gang member. The probative value seems limited and there is clearly a prospect of illegitimate prejudice. It is speculative that the name actually relates to the identified Mr Mihaka, although coincidence reasoning is clearly available as there is a Mr Mihaka connected to Ms Staunton’s social circle. That Mr Mihaka was incarcerated at the time Ms Staunton was receiving the benefit.
[47] The purported evidence at para 2.31 goes on to set out that Ms Murray and her partner, Mr Te Huia, were tenants at 2 Inverness Road and suspects for the fire at the property. Ms Tamehana also says that Mr Te Huia is a patched member of the Mangu Kaha gang, a subsidiary of the Black Power gang.
[48] Again, other than linking Ms Staunton with a criminal gang, the evidence does not seem to advance the Commissioner’s case in any legitimate way. This evidence will carry little weight unless the Commissioner can articulate the relevance of it. That will be a matter for the Judge hearing the substantive application.
Paragraph 3.10
[49] This paragraph contains Ms Tamehana’s interpretation of the meaning of text messaging between Ms Murtagh and Mr Horopapera. This evidence is admissible to explain the reasoning of the Commissioner in that it sets out how the Commissioner arrived at the conclusion that Ms Murtagh was aware of the criminal activity. It is not admissible to prove that conclusion is correct. That will be a matter for the fact-finder.
[50] Whether the evidence should be included in the affidavit depends upon what it is meant to prove. If it is to rebut a suggestion of prejudice or tunnel vision on the part of the investigators, it could be admitted for that purpose.
[51]This is a matter best left to the Judge hearing the application.
Paragraph 3.15
[52] This portion of the affidavit refers to surveillance footage which the sixth respondent does not dispute can be produced. Objection is taken to the identification of Ms Murtagh as a person shown in the surveillance footage.
[53] It is not at all clear that Ms Tamehana is the person who made the identification or is able to. Before Ms Tamehana could give any evidence of identification, there would need to be a proper foundation laid.
[54]The evidence in its current form is not admissible.
Paragraph 3.17
[55] This is a submission which can be made on behalf of the Commissioner but should not be included in affidavit.
Paragraph 3.21
[56] This paragraph sets out that additional extracted data from Ms Murtagh’s iPhone, reproduced in the affidavit as evidence, demonstrates that Ms Murtagh had knowledge of the significant criminal offending discovered as part of Operation Morepork. Although this paragraph could be categorised as a submission, it is also a statement explaining the purported relevance of the admissible evidence that follows. It can be characterised as a signpost as to purported relevance.
[57] It is admissible for that purpose, but not for the truth of its contents. Again, that will be a matter for the Judge hearing the application.
Paragraph 3.23
[58] This is in the same category as the material at para 3.21. It explains or signposts the admissible evidence that follows. It is permissible for that purpose, but the fact-finder will rely on the actual conversations rather than the opinion of Ms Tamehana.
Paragraph 3.24
[59] This paragraph deals with the identification of a person referred to as “Nellie” in the text messaging.
[60] This sixth respondent says it is not clear who identified “Nellie” or the basis for the identification but also said at the hearing that there may be no real issue with this attribution. If no actual issue is taken as to the identification of “Nellie”, then it is in the interests of justice for this evidence to be admitted pursuant to r 7.30 of the HCR. The relevance of the attribution seems minimal. That is a matter of weight for the Judge hearing the application.
Paragraph 3.25
[61] Again, I see this as commentary that signposts the relevance of the information. It is not admissible for the truth of its contents but is permissible to draw the fact-finder’s attention to purported relevance.
Paragraph 3.26
[62] This sort of evidence is usually given by a drug expert. Ms Tamehana has not been qualified as an expert. The problem with the evidence coming in through Ms Tamehana is that, in the absence of expertise, she cannot be effectively cross- examined about any matters that are in dispute.
[63] This evidence should be given by a drug expert and is not admissible in its current form through this witness unless she can be qualified to give expert opinion evidence.
Paragraphs 3.27–3.33
[64] This evidence concerns Bunnings’ tax invoices located at the Ms Murtagh’s address. The tax invoices itemise purchases made in Ms Murtagh’s name, and the descriptions of items purchased contain large quantities of items associated with cultivation, such as sprayers, garden waste bags, secateurs, isopropyl, alcohol, gloves, electrical power boards and tubing.
[65] The information included in paras 3.29 to 3.32 contains some evidence that is technically hearsay, however given that it would be cured simply by having a statement from a Bunnings employee and given that there does not seem to be any real basis to dispute the information, this evidence in my view is admissible pursuant to r 7.30.
[66] Paragraph 3.33 is in a different category. It is purely a statement of opinion or submission. It is not admissible as evidence, although it is an available submission that could be made by counsel on behalf of the Commissioner.
Paragraph 3.42
[67] This is an analysis of data extracted from Ms Murtagh’s iPhone. It is not clear whether Ms Tamehana has herself carried out a review of the extracted data. If she has then this evidence is admissible as evidence of an analysis of that data. Ms Murtagh can cross-examine Ms Tamehana about the review.
[68] If Ms Tamehana did not herself carry out the review, then she is not the appropriate witness to give this evidence.
Paragraph 3.44
[69] This contains reference to a text message sent by Mr Horopapera referencing Ms Murtagh. It is a statement of Mr Horopapera which is admissible against Ms Murtagh only if the co-conspirators rule applies.
[70] The comment that this message suggests that Ms Murtagh was involved in the payment of the B.O.P Automotive bills sets out the significance that the Commissioner attaches to the evidence but is not admissible to prove that was in fact the case.
[71] Whether the statement is admissible against Ms Murtagh will depend on the whether the co-conspirators rule applies. That is a matter for the Judge hearing the application as is the weight to be attached to the evidence. The Judge hearing the application is in the best place to consider whether other evidence establishes that Ms Murtagh was part of a conspiracy with Mr Horopapera and others and whether the
text message was made in furtherance of the conspiracy. That issue goes to the heart of the substantive issue in dispute.
Paragraph 3.46
[72] This paragraph contains evidence that would usually be given by a person qualified as a drug expert.
[73] Either Ms Tamehana will need to be qualified as an expert to give that evidence or it can be given through a drug expert. Again, the problem is that she cannot be effectively cross-examined if she is not qualified as an expert.
[74] The second part of para 3.46 simply makes clear the inference that the Commissioner asks the Court to draw from the messages that are being produced. Again, the statement is not admissible to prove the truth of its contents but is admissible to explain the relevance which the Commissioner seeks to put on the messages.
[75] The statements in this paragraph should more properly be made by way of submission. However, there is force in the Commissioner’s argument that the explanation in the affidavit is useful to assist the fact-finder with understanding the purported relevance of the underlying evidence.
Paragraph 3.47
[76] The final paragraph is a submission, rather than evidence, but again is admissible to explain the significance that was placed on the evidence by the Commissioner.
[77] It does not prove the truth of its contents. However, the source material that it is based upon is available to the fact-finder.
Paragraph 3.48
[78] Again, this is best categorised as a submission but has some legitimacy as explaining the significance which the Commissioner places on the text messages.
Paragraph 3.50
[79] This is a signposting or explanatory paragraph which is supported by the source material.
Paragraphs 3.51–3.52
[80] These paragraphs set out Mr Baker’s evidence. The evidence is not hearsay because Mr Baker is a witness. However, setting out the evidence of another witness in this way has no legitimate evidentiary value unless there is a challenge to the good faith of the investigator and the evidence is necessary to explain the investigator’s reasoning process.
[81] It really underscores that this part of the affidavit is a submission rather than evidence.
Paragraph 3.53
[82] The purpose of this paragraph is clearly to explain the relevance which the Commissioner places on the evidence. It is in the nature of a signpost. It is not admissible to prove its contents, but it is permissible to signpost the evidence that follows.
Paragraph 3.55
[83] This paragraph refers to cash counting scales and says that they are commonly encountered during police investigations concerning wholesale dealing of controlled drugs. Again, this evidence should be given by a qualified expert.
[84] If Ms Tamehana is not an expert, then she will not be able to be effectively cross-examined should there be any dispute about this. The evidence itself seems uncontroversial and might be more properly included in a s 9 notice of admitted facts.
[85] In general, where evidence is uncontroversial, it would be better for the Commissioner to approach respondents about the preparation of a notice of admitted
facts as an alternative to including evidence in a witness’ affidavit that the witness cannot properly give.
Paragraphs 3.60–3.67
[86] These paragraphs contain a mix of submission and signposting type information. Where the evidence simply paraphrases or explains the source material, is not inappropriate as a signpost or explanation of the relevance that the Commissioner has attached to the evidence.
[87] Where the statement goes further and draws a conclusion, that is for the fact-finder — it should not be included and is not admissible.
Paragraph 3.68
[88] This paragraph sets out a statement of a retailer confirming that Ms Murtagh contacted the retailer to purchase a spa and sets out the negotiated price. The evidence is hearsay. However, there is unlikely to be any real dispute about it and it can properly be admitted under r 7.30. Requiring the retailer to give evidence would appear to add nothing but time and expense.
[89] If there is a dispute and a witness is required for a genuine purpose, admission in this form would be objectionable and r 7.30 would not operate to admit the evidence. That does not seem to be the case. This appears simply to be a technical objection.
Paragraph 3.71
[90] This is similar evidence in respect of enquiries made with another retailer. Again, r 7.30 applies on the basis that it is in the interests of justice to admit evidence in this form where there appears to be no real dispute and no basis for any challenge through cross-examination.
Paragraphs 3.75–3.79
[91] These paragraphs are purely submission. They should be included in the submissions presented on behalf of the Commissioner and not presented in the form of purported affidavit evidence.
Paragraph 3.85
[92] This paragraph sets out enquiries made with a commercial property manager from Bayley’s Real Estate Tauranga. Again, r 7.30 would operate to permit the evidence to be led in this form. The objection appears technical with no real dispute as to the fact that a lease was entered into.
Paragraph 3.86
[93] This is submission/opinion type evidence. It can be categorised as simply explaining the relevance of the source material that is referred to and produced by Ms Tamehana. It permits the reader to understand the relevance of the evidence and to that extent it is in the interests of justice pursuant to r 7.30 to permit Ms Tamehana to give this evidence.
Paragraph 3.87
[94] This paragraph refers to the fact that the Ms Murtagh’s company is not registered with the Companies Office and has not been declared to Inland Revenue for tax purposes or to the Ministry of Social Development, which potentially could affect Ms Murtagh’s benefit.
[95] The source of this information is not entirely clear. It is said that failure to declare alternative income is fraudulent behaviour which itself represents significant criminal activity as defined by s 6 of the CPRA.
[96] To the extent that this is an attempt to present an alternative ground for forfeiture, it is completely inadequate for that purpose. It is not the Commissioner’s case that the property, or some of it, should be forfeited based on fraud offending. The Commissioner’s case is built squarely on the basis that the property is tainted because
it was the proceeds of crime, namely commercial cannabis cultivation, which was known to Ms Murtagh.
[97] The probative value of the material in para 3.87 is insufficient for the evidence to be admitted.
Paragraphs 3.91–3.96
[98] These paragraphs explain the significance of source material provided. They can be seen as simply signposting the relevance, or purported relevance, of the evidence. For that purpose, the statements are admissible but not for the truth of the contents. The truth of the contents comes from the messages themselves.
Paragraph 3.97
[99] This is purely submission and should not be included in Ms Tamehana’s affidavit.
Paragraph 3.98
[100] Ms Tamehana sets out the result of enquiries made with a jeweller. Those enquiries, while technically hearsay, are admissible under r 7.30.
[101] There is no real suggestion that the evidence would not be available through the jeweller. It simply creates delay and expense to require the evidence to be proven in that way when it does not appear to be in dispute.
Paragraph 3.100
[102] This paragraph refers to Ms Murtagh’s dealings with her share of the equity in a property which is not the subject of the application. The suggestion is that Ms Murtagh deposited the funds into a third-party bank account to avoid the effect of restraining orders.
[103] The transaction was after these proceedings were underway. Even if it is proved through admissible evidence that Ms Murtagh deposited money in a third-party
bank account, that fact has no evidential value to the issues which must be decided. Ms Murtagh’s purported desire to avoid money from an inheritance being restrained says nothing about her knowledge of the underlying criminal offending prior to the Commissioner commencing proceedings.
Paragraph 3.103
[104] The second part of this paragraph is a submission which is better made by counsel for the Commissioner.
Paragraph 3.108
[105]Again, this is submission rather than evidence.
Paragraphs 3.110–3.111
[106]This is submission rather than evidence.
28 January affidavit
[107]At the hearing there was discussion about statements made in paras 2.5 and
3.3. Mr Cornege for Ms Murtagh accepted that the evidence is in the nature of a signpost and can be dealt with by the Judge at the hearing and accorded such weight as the Judge thinks proper, which may be limited.
[108]The evidence is the underlying source material.
Paragraph 3.9
[109] This is objected to as pure submission. It is clearly submission but again the Judge hearing the application can deal with it as a matter of weight. It has the benefit of making the Commissioner’s case clear to the respondents and ensuring they are not taken by surprise.
Paragraph 3.12
[110] This paragraph is in the same category. It is in the nature of submission but also explains the relevance that the Commissioner seeks to place on the underlying source material.
Paragraphs 3.15–3.19
[111] These paragraphs are context or signposting type material which is useful to explain the purported relevance of the material but is not useful to prove the truth of the contents of the statements.
Paragraph 3.20
[112] This paragraph reproduces statements made by a person who is not a witness. There is no evidence establishing that the maker of the statement is unavailable. No objection is taken to the evidence for Ms Murtagh, and it mainly affects Mr Horopapera.
[113] Given that Mr Horopapera has already been convicted of the underlying criminal offending, it seems unlikely that he would take any objection to the evidence being admitted in this form. If I am wrong about his position, the Judge hearing the application can consider the weight to be attached to the hearsay statements.
[114] Rule 7.30 applies and it is in the interests of justice to admit the evidence without calling the maker of the statement.
Paragraphs 3.21–3.26
[115] This passage contains a considerable amount of commentary. It goes beyond signposting the relevance of the data which is produced. This is material that should more properly be included in submission rather than in affidavit form. However, I have no doubt that the Judge hearing the application will accord it the appropriate weight.
Paragraph 3.39
[116] This contains a comment that cash banked by Ms Murtagh was likely to have been cash derived from cannabis cultivation operations.
[117]That is not evidence but is a submission.
Paragraph 3.43
[118] Ms Tamehana deposes that Ms Murtagh was “elusive” in responses to Investigator Labone. That is the witness’ interpretation of Ms Murtagh’s response and has no evidential value. Ms Tamehana is simply purporting to make an assessment which the fact-finder might or might not make.
[119] I agree that including such material in an affidavit can have an illegitimate prejudicial effect. While the fact-finder will no doubt be careful to apply weight appropriately, repeated assertions that give a particular flavour are presumably only included to influence the fact-finder.
[120] The witness who actually spoke to Ms Murtagh should be called if the Commissioner wants the Court to draw inferences from Ms Murtagh’s responses beyond what is apparent from the written record.
Paragraph 3.44
[121] This evidence relates to examinations where it is said that Mr Horopapera and Ms Murtagh were vague in their responses. Ms Tamehana suggests a reason for the vagueness.
[122] Again, that is a matter for submission. Ms Tamehana did not conduct the examination. The transcript of the examination will be available to the fact-finder and the submission can be made. However, it is not evidence that is admissible in Ms Tamehana’s affidavit.
Paragraphs 3.45–3.49
[123] This material draws together the purported relevance of underlying evidence that will be produced as part of the Commissioner’s case. This is clearly submission. While it is helpful to the fact-finder, there should be a clear delineation between what counsel submits and what a witness proves.
Paragraphs 3.51–3.52
[124] These paragraphs are purely submission commenting on the evidence of another witness.
[125] This material could be put before the Court in an unobjectionable way if it were excised from Ms Tamehana’s affidavit and included in counsel’s submission. While it will be before the fact-finder either way, it is much preferrable if it is not included improperly in affidavit evidence. As counsel for the respondents say, inclusion of this material in an affidavit creates an issue as to whether there is an obligation to cross-examine on matters that are essentially submission.
[126] It also merges the role of witness and counsel. As counsel for Ms Murtagh says, the Commissioner’s evidence is wide-ranging, voluminous and often repetitive because much of it is submission.
Paragraphs 3.63–3.67
[127]Paragraph 3.62 is a reference to information from NIA.
[128] The fact that evidence is in NIA does not mean that it is automatically in the interests of justice to admit that evidence. Evidence is placed into NIA by police officers in various circumstances and may or may not be accurate.
[129] Paragraphs 3.63 to 3.67 set out statements that a person, who is not a witness, made to the investigator and to police officers. This evidence is hearsay and is not admissible through Ms Tamehana. There is no evidence that the witness is unavailable. The witness was in custody at the time the affidavit was sworn and was clearly not unavailable at that point.
[130]Paragraphs 3.62 to 3.67 are not admissible.
[131] In the absence of evidence establishing unavailability or other reasons to admit the evidence as hearsay, the maker of the statements will need to be called as a witness.
Paragraphs 3.73–3.75
[132] Again, Ms Tamehana purports to give evidence of statements made to her by a person who is not a witness. In the absence of evidence establishing that the witness is not available, it cannot be produced as hearsay.
Paragraphs 3.84–38.5
[133] These paragraphs are objected to as submissions and repetition of earlier evidence. The Commissioner submits that the evidence is set out in reply to evidence filed by the respondents. The material is repetitive and should properly be included in submissions rather than in an affidavit.
Paragraphs 3.89–4.13
[134]The bulk of these passages including the summary are purely submission.
[135] It is not improper for a witness who is the primary investigator to signpost or explain the purported relevance of underlying source material. It would be artificial and would prolong proceedings to prevent a witness from explaining the context of evidence in an application for a civil forfeiture order. It would also create a risk that the relevance of evidence would only become apparent late which would not be fair to the respondent. There is however a line between legitimate explanation of purported relevance and what is purely submission.
[136] Counsel for the Commissioner has indicated a willingness to amend the affidavit and submission evidence to better comply with the need to differentiate between submissions and evidence.
[137] The final passages of both affidavits are strongly focused on submission rather than evidence. The passages should not be included in Ms Tamehana’s affidavit as they are not evidence.
Conclusion
[138] The Commissioner is directed to file affidavits with the inadmissible portion removed by 9 May 2025.
[139] The Commissioner may file further submissions also by 9 May 2025 incorporating the matters of submission which have been removed from Ms Tamehana’s affidavits.
[140] Any further affidavits from third parties whose evidence was previously included in Ms Tamehana’s affidavits must be filed by the Commissioner by 6 June 2025.
[141]The parties have leave to apply for further timetabling orders as necessary.
Costs
[142]Costs are reserved.
Wilkinson-Smith J
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