Commissioner of Police v Jeffries
[2014] NZCA 566
•27 November 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA569/2013 [2014] NZCA 566 |
| BETWEEN | THE COMMISSIONER OF POLICE |
| AND | ANTHONY ROBERT JEFFRIES |
| Hearing: | 10 September 2014 |
Court: | French, Winkelmann and Asher JJ |
Counsel: | G C Hollister-Jones and R W Jenson for Appellant |
Judgment: | 27 November 2014 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BWe make an assets forfeiture order on the terms sought by the appellant. The following property vests in the Crown absolutely and is in the custody and control of the Official Assignee:
(a) the money in First Credit Union account 03-1754-0516606-S8 ($146,944.16);
(b)the 2004 Harley-Davidson V-Rod motorcycle, registration number A9HNJ;
(c)the sum of $3,665 cash seized by police on 28 August 2012 from 42 Albert St, Karangahake; and
(d)the 2001 Holden Commodore motor vehicle, registration number BCW886.
CThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Jeffries is a convicted drug dealer. The Commissioner of Police is seeking an assets forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (the Act) in respect of assets held in the name of Mr Jeffries.
The Commissioner’s application was declined in the High Court by Woolford J.[1] The Judge held that the police had failed to prove that any of the eight assets it wanted forfeited were tainted property within the meaning of the Act.[2]
[1]The Commissioner of Police v Jeffries [2013] NZHC 2084.
[2]At [73].
The Commissioner now appeals that decision insofar as it relates to four of the assets.
Legal framework
The jurisdiction to make an assets forfeiture order is derived from s 50 of the Act. It states that if the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.
Section 5(1) relevantly defines “tainted property” as:
(a) … any property that has, wholly or in part, been—
(i) acquired as a result of significant criminal activity; or
(ii)directly or indirectly derived from significant criminal activity.
The phrase “significant criminal activity” is also defined. Section 6 states:
6 Meaning of significant criminal activity
(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
(2)A person is undertaking an activity of the kind described in subsection (1) whether or not—
(a)the person has been charged with or convicted of an offence in connection with the activity; or
(b)the person has been acquitted of an offence in connection with the activity; or
(c)the person’s conviction for an offence in connection with the activity has been quashed or set aside.
…
Background
On 28 August 2012, police executed a search warrant at a property occupied by Mr Jeffries in Karangahake. The dwelling on the property was a large building described in evidence as an “industrial type shed”. Most of the shed appeared to be used as a mechanical type workshop, with a small part of it converted into living quarters.
During the search, the police found four self-sealing plastic bags containing white crystalline powder and weighing 522 milligrams, 5.6 grams, 581 milligrams and 194 milligrams respectively, in total 6.897 grams. There were also two other self‑sealing plastic bags containing residues of white crystalline powder.
On analysis, the powder in all bags was found to contain methamphetamine.
The police also found the following items:
(a)Five glass pipes that had been used for smoking methamphetamine.
(b)A number of empty self-sealing bags located in a safe.
(c)Two electronic scales located on a shelf in the lounge.
(d)A notebook containing names with figures next to them. The amounts recorded were almost exclusively in $100 lots with a few $50s. The notebook was found in the safe.
(e)$3,665 in cash.
At the entrance to the property, there was an alarm sensor across the gate entrance notifying the occupiers of anyone entering the property. There was also a CCTV camera on the front of the shed, looking at the front gate and driveway area, and a second CCTV camera at the rear of the property, looking towards the back of the section. The CCTV cameras were connected to a monitor inside the living quarters.
Mr Jeffries was charged with possession of methamphetamine for supply, offering to supply methamphetamine and possession of benzylpiperazine (BZP) for supply. He claimed that the methamphetamine was for his own personal use and pleaded not guilty.
In September 2012 police obtained without notice an order under s 24 of the Act restraining the cash found during the search as well as 32 motor vehicles and four motorcycles registered in Mr Jeffries’ name together with funds in a First Credit Union account in his name.[3]
[3]The Commissioner of Police v Jeffries HC Hamilton CIV-2012-470-744, 17 September 2012.
Subsequently, the police filed an amended application for a restraining order, this time on notice. The new application reduced the number of motor vehicles sought to be restrained from 32 to four and the number of motorcycles from four to two.[4] Police also filed an application for sale of the four vehicles and two motorcycles.
[4]The reason given by the police for the amendments was that the other 28 motor vehicles and two motorcycles were of insufficient value to justify continued restraint given likely disposal and storage costs.
In June 2013 the police filed a further application, this time for an assets forfeiture order in respect of all the property specified in the amended application for a restraining order.
Mr Jeffries opposed all applications.
The applications came on for hearing before Woolford J. Affidavit evidence was filed and there was an opportunity for cross-examination.
In his decision, the Judge found that the police had failed to satisfy him that any of the assets in dispute had, either wholly or in part, been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity, as required by the Act. He therefore dismissed the application for an assets forfeiture order.
The judgment was delivered on 16 August 2013. In November 2013 Mr Jeffries was tried in the District Court on the three drugs charges and convicted of all three. He was sentenced to 14 months’ imprisonment.[5]
Arguments on appeal
[5]R v Jeffries DC Hamilton CRI-2012-019-5658, 28 February 2014.
It was common ground on appeal that the Judge had correctly directed himself in terms of the law.
What the Commissioner challenged was the Judge’s analysis of the evidence and the appropriateness of his factual findings. Counsel Mr Hollister-Jones submitted that the Judge misused the advantage he had of seeing and hearing the witnesses, that the findings were either against the weight of evidence or without evidential foundation and that they were demonstrably incorrect.
For his part, counsel for Mr Jeffries, Mr Nabney, submitted that the Judge’s conclusions were open to him on the evidence and that it would be wrong for us to interfere with the Judge’s findings of fact, particularly when he had the advantage of seeing and hearing the witnesses.
Our general approach
For good reason, appellate courts are traditionally reluctant to interfere with the factual findings of first instance judges.
However the appeal before us is a civil appeal by way of rehearing and the parties are entitled to an independent assessment of the evidence. No deference to the decision of the first instance judge is required beyond the customary caution appropriate when credibility is important and the judge has seen and heard the witnesses.[6]
[6]Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
There were credibility findings made in this case. However, as submitted by Mr Hollister-Jones, they were not credibility findings reached after an assessment of conflicting oral evidence on key issues. Rather, it was a situation where the Judge had to undertake an evaluation of Mr Jeffries’ position in the light of previous inconsistent statements as well as relevant documentary and uncontested evidence. The issue we have been asked to determine is whether the Judge undertook that evaluation appropriately.
For completeness we should record that we have not overlooked Mr Nabney’s argument that the burden of proof rests with the police. Mr Nabney emphasised that it was not for Mr Jeffries to prove anything. However, if an alternative innocent explanation is offered, the court must consider whether it is plausible. If it is found not to be plausible, the court must then decide whether it is satisfied by all the evidence on the balance of probabilities that the property in question is tainted property.[7] That is the approach we have taken.
[7]Commissioner of Police v Dryland [2013] NZCA 247 at [39].
We turn now to consider each of the items of property in turn.
The money in First Credit Union account 03-1754-0516606-S8 ($146,944.16)
The evidence
Mr Jeffries was at all material times in receipt of an invalid’s benefit.
For the years 2010 to 2012 he declared the following income to the Inland Revenue Department:
·2010 Ministry of Social Development – benefits $6,527.70;
·2011 Ministry of Social Development – benefits $12,533.52; and
·2012 Ministry of Social Development – benefits $14,672.26.
Mr Jeffries had an online savings account in his name with First Credit Union.
In the 12 months prior to the police search of his property, cash deposits totalling $138,000 were deposited into the account. As at 7 September 2012, the balance was $146,944.16.
An analysis of the way in which the account had primarily been operated showed Mr Jeffries making a series of cash deposits for amounts of up to $20,000 each.
In affidavit evidence, Mr Jeffries claimed that approximately $138,000 of the money in the account did not belong to him but to a Mr Broderson. Mr Broderson knew Mr Jeffries because Mr Broderson’s daughter and Mr Jeffries’ brother were in a relationship.
According to Mr Jeffries, Mr Broderson was distrustful of banks and had stashed away his life savings in boxes around his home. He had asked Mr Jeffries to look after the money for him because his daughter could not be trusted with money. Mr Broderson did not feel comfortable handing the money to Mr Jeffries in one lump sum and so gave it to him and Mr Jeffries’ father in instalments.
Mr Jeffries’ claims were supported by Mr Broderson in an affidavit sworn on 8 November 2012. Mr Broderson deposed that he had sold his house about six years earlier and moved in to live with his daughter and her partner (Mr Jeffries’ brother) and their children. Mr Broderson stated he thought he had received $110,000 from the house sale. He said he drew money out of his bank every now and then and hid it around the house. He liked to have money at home in case he wanted to buy something or in case the kids needed something.
Mr Broderson said he started to worry that if something happened to him, his daughter and grandchildren might not find the money and so would miss out. He trusted Mr Jeffries and it was agreed that he would gradually give the cash he had built up at home to Mr Jeffries for deposit into the latter’s First Credit Union account. He did not want to open an account in his own name because he did not want statements coming to the house for his daughter to find. He wanted to keep the money a secret from her because she was a spendthrift.
Mr Broderson said for the “last two or three years” he had from time to time been giving large amounts of cash (generally in lots of $10,000 or $5,000) to Mr Jeffries or Mr Jeffries’ father to deposit into Mr Jeffries’ bank account.
On receipt of Mr Broderson’s affidavit, the police made some inquiries into his finances. They ascertained that the net sale proceeds from his house were $33,148.91 and that he had spent $8,450 on the purchase of a boat. Police also conducted an analysis of Mr Broderson’s bank statements over the seven year period from 3 October 2005 to 30 November 2012 to determine whether he had the means to hoard $138,000.
According to the analysis, Mr Broderson’s primary source of income was a Work and Income New Zealand benefit, which was always withdrawn almost immediately after being banked, as was all other income. Total deposits to the account over the seven year period equated to $164,077.52, with cash withdrawals totalling $119,620.
Mr Broderson was not able to be cross-examined on his affidavit because he died before the police analysis was completed.
Police also produced bank diary entries recording that on five occasions when making large deposits into his account, Mr Jeffries had told the teller that the money came from the sale of motor vehicles or something similar.
The Judge’s findings
The Judge said he accepted that the circumstances were suspicious but found that the police had failed to discharge the onus of proving the money was tainted property.[8] In coming to that conclusion, the Judge relied on the following:
(a)In his affidavit Mr Broderson had said he lived like a hermit and spent little. In the Judge’s view, it was unlikely that all of the cash withdrawals over the seven year period were spent on living expenses, especially as Mr Broderson was living with his daughter and it was not uncommon for children to support elderly parents.[9]
(b)Police had not investigated Mr Broderson’s claims of receiving up to several thousand dollars a year from his late wife’s interest in a block of land.[10]
(c)Mr Jeffries was a credible witness.[11]
(d)The Judge was not persuaded that Mr Jeffries had been dealing in methamphetamine on a scale sufficiently large to lead to unexplained cash deposits of $138,000 over a year.[12] He said the amount of methamphetamine found at the house was small, there was no evidence of people coming to and from the house, no text messages from prospective buyers and the notebook appeared to have an innocent explanation, being consistent with a record of sales of car parts and scrap metal.[13]
Our assessment
[8]The Commissioner of Police v Jeffries, above n 1, at [64].
[9]At [63].
[10]At [63].
[11]At [63].
[12]At [71].
[13]At [66]–[71].
We are acutely conscious of the advantage enjoyed by Woolford J of seeing and hearing those witnesses that were cross-examined, in particular Mr Jeffries. It is clear that Mr Jeffries made a favourable impression on the Judge.
However, having regard to the evidence as a whole, we have come to the view that the Judge’s analysis of the evidence was flawed and that his conclusion was plainly wrong. In particular we consider the Judge placed excessive weight on Mr Jeffries’ demeanour in the witness box, to the point where the Judge failed to subject his explanations to proper scrutiny having regard to their inherent implausibility and the uncontested financial and documentary evidence.
On any view of it, the explanation proffered by Messrs Jeffries and Broderson was inherently improbable, bordering at times on the fanciful.
Mr Jeffries claimed, for example, that the reason he falsely told the bank tellers that the money was from the sale of cars was because that was what the bank tellers suggested would be a good reason. We consider it most unlikely that a bank teller would make such a suggestion. We also consider it highly improbable that a man who was supposedly so distrustful of banks that he kept $138,000 in cash at home would nevertheless be happy to place his entire life savings in a bank account that was not even under his control. There was no need to use someone else’s bank account. It would have been an easy matter for Mr Broderson to have arranged for the bank statements to go elsewhere. It is also highly improbable that a man so distrustful of his daughter would have left such large sums of money around for her to find instead of giving it all to Mr Jeffries in one lump sum.
The police evidence relating to Mr Broderson’s financial position was uncontested. Mr Broderson had deposed that the money he accumulated and provided to Mr Jeffries had all come from withdrawals from the bank starting in 2008. Yet the total sum of his cash withdrawals was less than $138,000. The denominations of his withdrawals also did not match some of the deposits paid into Mr Jeffries’ account. Further, the evidence strongly suggested that Mr Broderson lived a hand to mouth existence and that it would not have been possible for him to have accumulated $138,000. If Mr Broderson’s story were true, it would mean that he was living on just $26 a week. There was no evidence that his daughter was subsidising his living expenses and indeed, given Mr Broderson’s own evidence that she “spent money like wildfire”, as well as evidence that both she and her partner were on benefits, it was unlikely that she was doing so.
In our assessment the only reasonable inference to be drawn from the evidence was that Mr Jeffries acquired unexplained cash of $138,000 in the 12 months preceding the search.
Mr Nabney argued that the Commissioner did not produce any evidence that Mr Jeffries was engaged in serious criminal activity at the time the money was acquired. Rather, the Court was being asked to draw an inference to that effect from the criminal offending detected in the search of 28 August 2012. However, the evidence must be looked at in its entirety. The fact that Mr Jeffries had acquired unexplained cash of $138,000 in the 12 months preceding discovery of evidence of drug dealing in our view does, on the balance of probabilities, warrant that inference.
Having reviewed the evidence afresh, we consider the only reasonable conclusion is that the money in the account was tainted property within the meaning of the Act and must therefore be forfeited.
2004 Harley-Davidson V-Rod motorcycle – registration number A9HNJ
The evidence
In an affidavit sworn on 10 December 2012, Mr Jeffries stated that he bought the Harley-Davidson for $10,000 and borrowed the entire purchase price from Ms Rosenfeldt. Ms Rosenfeldt is the mother of Mr Jeffries’ partner.
Exhibited to the affidavit was a security agreement dated 20 August 2011 signed by Mr Jeffries and Ms Rosenfeldt in which he agreed to repay the $10,000 plus interest in monthly instalments of $245 over a 60 month period. Mr Jeffries stated in the affidavit that he had repaid between $2,500 and $3,000 of the loan.
Police located the previous owner of the motorcycle. He claimed not to know who purchased the motorcycle or how much it sold for because it was sold by an associate. He said he would find out more details and advise the police. When contacted again, he said that his associate had sold it for $10,000 to a person the associate had met at a service station.
Police also gave evidence of a detailed written statement they obtained from Ms Rosenfeldt at an interview held on 16 January 2013.
In the written statement, Ms Rosenfeldt confirmed having lent Mr Jeffries $10,000 to purchase the motorcycle and having signed the security agreement, which she said she had prepared herself. She further stated that after signing the agreement, she then transferred the money from one of her National Bank accounts to the seller’s bank account. Mr Jeffries had given her the details of the seller’s bank account but she did not recall the seller’s name or the details. She confirmed that Mr Jeffries had met the scheduled repayments, and had done so in cash.
Police followed up this interview by checking Ms Rosenfeldt’s National Bank accounts. These showed that there were no transfers of $10,000 at the relevant time, and that none of Ms Rosenfeldt’s bank accounts had ever had a balance of $10,000. A review of the bank statements also showed that no monthly repayments were ever banked into the accounts.
At the hearing, Mr Jeffries gave evidence that Ms Rosenfeldt did not transfer the money to the seller via direct debit but gave the $10,000 to him, Mr Jeffries, in cash. He further stated that he had now learnt it was not in fact Ms Rosenfeldt’s money but that she had obtained it from his partner’s ex-boyfriend. He said Ms Rosenfeldt had not told him the true source of the money at the time because she knew he would not have accepted it had he known the truth.
Mr Jeffries also gave evidence that he had talked to Ms Rosenfeldt about her police interview. She said she had told the police it was none of their business where she got the money from and that she had felt like she was being interrogated.
As for how he was managing to meet the repayments on an invalid’s benefit, Mr Jeffries said that apart from rent, the repayments were his only commitment.
The Judge’s findings
The Judge found that Ms Rosenfeldt had lied to police about transferring the money to the seller. However, he said he was not satisfied the Harley-Davidson was tainted property because:[14]
(a)He accepted Mr Jeffries’ evidence that he operated on a barter system and did not need money.
(b)The police had failed to seek an explanation from Ms Rosenfeldt about her false statements or analyse the computer on which she said the security agreement had been prepared.
(c)The Judge was unable to discount the explanation given by Mr Jeffries that he received the money in cash. The explanation was plausible because Mr Jeffries predominantly dealt in cash and he struck the Judge as an individual who would refuse a loan if he knew the money had come from his partner’s ex-boyfriend.
Our assessment
[14]At [45].
On appeal, Mr Hollister-Jones argued that the Judge had erred in relying on Mr Jeffries’ evidence about his conversation with Ms Rosenfeldt because it was inadmissible hearsay and should have been excluded.
We agree the evidence was hearsay, but in our view the argument that it should have been excluded is weak.
First, no objection was taken at the time. Secondly and more fundamentally, the police’s own evidence of Ms Rosenfeldt’s written statement was also hearsay.
In our view, having admitted one hearsay statement, it would have been wrong for the Judge to have excluded the other. Ultimately it was a question of weight.
Where we consider Mr Hollister-Jones is on stronger ground is his submission that as in the case of the First Credit Union funds, the Judge failed to subject the evidence to an appropriately robust and critical analysis.
In our view, having regard to all the evidence, the explanation proffered by Mr Jeffries is implausible. It does not make sense that concern about him learning the true source of the funds would have caused Ms Rosenfeldt to lie to police about how the funds were transferred to the seller.
The much more likely inference to be drawn from her false written statement is that she lied in order to help Mr Jeffries explain his otherwise incriminating acquisition of the motorcycle and that when the lies were exposed, Mr Jeffries changed his story.
In our assessment, the Judge’s conclusion was wrong. Correctly analysed the evidence did establish that it was more likely than not the Harley-Davidson was tainted property.
The $3,665 cash
The evidence
During the 28 August 2012 search, police found $3,665 cash in Mr Jeffries’ car.
On the day of the search, Mr Jeffries’ partner told police she thought the cash was from the sale of a motor vehicle Mr Jeffries had just sold.
Mr Jeffries told police that his brother had given him the money to purchase a front rim for a Harley-Davidson. He described the area where the shop was located and said he had intended to collect the front rim the following day.
In a subsequent affidavit, Mr Jeffries deposed that the money belonged to his brother, who had borrowed it from First Credit Union. The affidavit goes on to say that the reason the money was in Mr Jeffries’ possession was because his brother had given it to him so that Mr Jeffries could buy parts for a motorcycle Mr Jeffries had earlier sold to his brother. The motorcycle in question is variously described as a Buell or Harley-Davidson motorcycle.
Inquiries undertaken by the police established that there had been no withdrawals from Mr Jeffries’ brother’s accounts at First Credit Union corresponding to the money found in the car. The only large withdrawal was a $7,000 cheque withdrawal, which had been deposited in Mr Jeffries’ account in August 2011 (a year before the search).
Police also spoke to the two motorcycle shops in the area mentioned by Mr Jeffries. The shops told police that they did not know Mr Jeffries nor did they stock front rims for that type of motorcycle.
In an affidavit filed immediately prior to the hearing, Mr Jeffries’ brother confirmed that he had purchased a motorcycle from Mr Jeffries and had paid for it by borrowing $7,000 from First Credit Union. He said that the bike needed work done on it and that he had borrowed $3,500 from a friend, Mr Lawrence, to pay Mr Jeffries for the repair work. He had given Mr Jeffries the money in cash.
At the hearing, Mr Jeffries said that the previous statement in his affidavit about his brother having borrowed the money from First Credit Union was simply an assumption. It had been based on the fact that his brother had financed the original purchase price that way.
Mr Jeffries’ partner also gave evidence at the hearing. She said her statement at the time of the search was also just an assumption on her part because usually any sums of money in Mr Jeffries’ possession did come from sales.
The Judge’s findings
The Judge said that having heard from Mr Jeffries, his partner and his brother, he was not satisfied the $3,665 was tainted property. In particular:[15]
(a)The Judge accepted that both Mr Jeffries and his partner may well have made assumptions that would explain the inconsistencies in their respective statements.
(b)The earlier payment of $7,000 was supported by documentary evidence.
(c)The brother’s evidence that he possessed a Harley-Davidson motorcycle in need of work to bring it up to a roadworthy status was not contested.
(d)Mr Jeffries was capable of doing such work, being a trained panel beater, and did in fact undertake such work for family and friends.
Our assessment
[15]At [21].
The cash was made up of one $100 note, 16 $50 notes, 124 $20 notes, one $5 note and $280 in coins. The Judge did not take into account these denominations, which are clearly more consistent with the money being the proceeds of drug dealing than a loan.
The Judge also failed to take into account a significant inconsistency between the evidence of Mr Jeffries and his brother. Mr Jeffries’ brother said that when he handed the cash to Mr Jeffries, he told him that he had borrowed it from Mr Lawrence. If correct, that would mean Mr Jeffries could not have made any assumptions about the source of the funds. In our assessment, that discrepancy combined with the evolving and inconsistent explanations should have cast serious doubt on the reliability and credibility of Mr Jeffries’ evidence.
We note too that Mr Jeffries said he had gone to his brother’s house to collect the cash, whereas his brother said he had taken it to Mr Jeffries’ premises. Again this was something not addressed by the Judge.
In our view, the explanation given for the cash was not plausible. In the absence of any plausible explanation, the conclusion reached by the Judge was against the weight of the evidence and was wrong.
2001 Holden Commodore motor vehicle – registration number BCW886
The evidence
In his affidavit, Mr Jeffries deposed that he had owned the car for approximately 18 months, having purchased it for the sum of $5,000.
The relevant paragraphs of the affidavit read:
12.This is the car I drive around in. I have owned this car for approximately 18 months and paid $5,000.00 for it. I earned this money by paying the salvage fee for a neighbour whose husband was deceased and thereby acquiring a Mazda stationwagon. The salvage fee of $400.00 was paid to Rowe Motors to purchase the Mazda stationwagon which I fixed up.
…
14.I also got a 4-wheel drive off a scrap metal dealer. This was a Mitsubishi Pajero. I swapped the Mitsubishi for another Mazda station wagon and sold both Mazda station wagons for $10,000.00. I had purchased them for under $1,000.00. This is the money that I used to buy my Holden Commodore, registration number BCW886.
Police traced the previous owner, who stated that she had sold the car for $14,000 in 2011 to a mechanic. She said the buyer had paid her in cash mainly in $100 and $50 denominations with possibly some $20 notes. She provided the police with a receipt for the sale dated 4 May 2011. Signed by Mr Jeffries, the receipt records a sale figure of $14,000.
In light of this information, the police contended that Mr Jeffries had deliberately understated the price paid for the Holden Commodore because he was not able to give an innocent explanation for being in possession of $14,000.
At the hearing, Mr Jeffries explained that the reference to paying $5,000 in his affidavit was a mistake. That figure was his estimate of the value of the car on the assumption it had to be sold in a hurry and therefore at a discount. He pointed out that at [14] of his affidavit he had referred to the sale of two Mazda station wagons for $10,000 and that this was the money he used to buy the Holden Commodore.
Mr Jeffries further stated that because he did not have a bank account, the buyer of the two Mazda station wagons deposited the $10,000 into his father’s bank account. His father had then arranged the withdrawal of two separate sums of $5,000 in cash, which he had given to Mr Jeffries. Mr Jeffries produced bank statements from his father’s bank account showing the deposit and the withdrawals only a few days before the purchase of the Holden Commodore.
As for the remaining $4,000, Mr Jeffries said he received approximately $4,000 from an insurance company following a serious accident in 2009.
The Judge’s findings
The Judge acknowledged that because Mr Jeffries only provided a full explanation of the source of the funds paid for the Holden Commodore at the hearing, the police had not had an opportunity to make further inquiries with either the insurance company or Mr Jeffries’ father.[16]
[16]At [34].
However the Judge said he could not be satisfied the Holden Commodore was tainted property.[17] He considered there was an element of confusion in Mr Jeffries’ affidavit and documentary evidence showed the receipt and withdrawal of $10,000 cash at the relevant time.[18]
Our assessment
[17]At [34].
[18]At [35].
In our view, the Judge adopted an unduly favourable interpretation of the affidavit. Mr Jeffries states unequivocally in the affidavit that he “paid” $5,000 for the car. There is no mention of any higher figure being paid for it and no mention of any insurance monies being used to make up part of the price. As we read the affidavit, what Mr Jeffries was representing was that he had paid $5,000 for the Commodore, using part of the $10,000 received by him from the sale of the two Mazda vehicles.
The fuller explanation at the hearing was belated.
Further, there was no corroboration of the alleged payment from the insurance company.
We acknowledge that there was documentary evidence about the $10,000 in the form of the father’s bank statement. However apart from the coincidence of date and sum, there was nothing in the bank statement to suggest it had anything to do with the sale of the Mazda vehicles. On the contrary, the notation for the deposit of the $10,000 refers to “a loan draw down”. It also seems odd that if Mr Jeffries’ father were providing Mr Jeffries $10,000 for the car, he would have withdrawn the money in two lots of $5,000.
In the absence of any plausible explanation for Mr Jeffries being in possession of the sum of $14,000, we consider the only reasonable inference to be drawn on the balance of probabilities is that the Holden Commodore is tainted property within the meaning of the Act.
Outcome
The appeal is allowed.
We make an assets forfeiture order on the terms sought by the appellant. The following property vests in the Crown absolutely and is in the custody and control of the Official Assignee:
(a)the money in First Credit Union account 03-1754-0516606-S8 ($146,944.16);
(b)the 2004 Harley-Davidson V-Rod motorcycle, registration number A9HNJ;
(c)the sum of $3,665 cash seized by police on 28 August 2012 from 42 Albert Street, Karangahake; and
(d)the 2001 Holden Commodore motor vehicle, registration number BCW886.
As regards costs, we note that Mr Jeffries is legally aided. There will therefore be no order as to costs.
Solicitors:
Ronayne Hollister-Jones Lellman, Tauranga for Appellant
Beach Legal, Mt Maunganui for Respondent
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