Commissioner of Police v Johnson

[2022] NZHC 2703

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-23

[2022] NZHC 2703

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

WIREMU WETENE TE WAAKA JOHNSON

Respondent

Hearing:

18 October 2022

Appearances:

S Smith for Applicant

No appearance by or on behalf of Respondent

Judgment:

19 October 2022

JUDGMENT OF WOOLFORD J

(Asset Forfeiture Orders)

This judgment was delivered by me on Wednesday, 19 October 2022 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Gordon & Pilditch (Office of the Crown Solicitor), Rotorua

COMMISSIONER OF POLICE v JOHNSON [2022] NZHC 2703 [19 October 2022]

[1]                 This is an application for an assets forfeiture order under the Criminal Proceeds (Recovery) Act 2009. The Commissioner of Police applies for an order that $11,135 cash located by the Police in Mr Johnson’s  wardrobe at his Rotorua address on      15 April 2021:

(a)Vests in the Crown absolutely; and

(b)Is to be in the Official Assignee’s custody and control.

[2]                 The order is sought on the grounds that the cash is tainted property because it was:

(a)Acquired as a result of significant criminal activity; or

(b)Directly or indirectly derived from significant criminal activity.

[3]                 The application is dated 27 April 2022. Mr Johnson has taken no steps and Ms Smith invites the Court to make an order accordingly.

[4]                 The application was the subject of a telephone conference before Wylie J on 13 September 2022. Wylie J had reservations about service. An affidavit of service from a Police investigator confirmed that he served the documents on Mr Johnson’s partner for delivery to Mr Johnson. Wylie J thought that this did not suffice in terms of the High Court Rules.

[5]                 Ms Smith referred Wylie J to a minute of Duffy J on 2 June 2022. Mr Johnson appeared when the matter was then called before the Court and Duffy J recorded that Mr Johnson had been served with the Commissioner’s application and affidavit in support and that an affidavit of service was on the Court file. Out of caution, Wylie J directed that the papers were to be served on Mr Johnson, care of the address for service put in place by Duffy J.  A copy of Wylie  J’s  minute was to be served on  Mr Johnson at the same time.

[6]                 The Commissioner subsequently filed a further  affidavit  of service dated   15 September 2022, which confirms that Mr Johnson was served with the documents

by way of an e-mail address that the investigator had previously used to communicate with, and exchange e-mails with Mr Johnson. The investigator also made a telephone call to Mr Johnson’s mobile telephone and spoke with him. Mr Johnson acknowledged that he had received the e-mail and the documents attached to it. The investigator had previously spoken to Mr Johnson by telephone on the same number and he recognised the voice of that of Mr Johnson.

[7]                 After having perused the original affidavit of the investigator, dated 21 April 2022, I am satisfied from the enquiries described by the investigator in the affidavit that the cash was acquired by Mr Johnson as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.

[8]                 In those circumstances, I make an order that the sum of $11,135 cash located by the Police in Mr Johnson’s wardrobe at his Rotorua address on 15 April 2021 vests in the Crown absolutely and is to be in the Official Assignee’s custody and control.

Woolford J