Commissioner of Police v Jones

[2020] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000471

[2020] NZHC 2628

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 22, 24 and 25 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ELIZABETH ANNE JONES

First Respondent

AND

DANIEL GARY FRENCH

Second Respondent

AND

AMY-LEIGH WARD

Third Respondent

AND

GARY ANGUS FRENCH

First Interested Party

AND

BANK OF NEW ZEALAND LIMITED

Second Interested Party

AND

SHARYN LOUISE WARD

Third Interested Party

AND

ANTHONY DAVID WARD

Fourth Interested Party

Hearing:	On the papers
Counsel:	K South and C C White for the Applicant
Judgment:	7 October 2020

JUDGMENT OF NATION J

COMMISSIONER OF POLICE v JONES & ORS [2020] NZHC 2628 [7 October 2020]

[1]                 On a without notice basis, the Commissioner has applied for a restraining order as to:

(a)        all interests in a residential property at 775 Telegraph Road, Canterbury, registered in the names of Elizabeth Anne Jones and WF Trustees 2004 Limited;

(b)       all interests in a residential property at 14 Frasers Road, Canterbury, registered in the name of Daniel Gary French, excluding the interests of Bank of New Zealand Limited as mortgagee; and

(c)        all interests in a residential property at 62 Denise Crescent, Hornby, Christchurch, registered in the names of Amy-Leigh Ward, Anthony David Ward and Sharyn Louise Ward, excluding the interests of Westpac New Zealand Limited as mortgagee.

[2]As to 775 Telegraph Road, the Commissioner says:

(a)        the first respondent (Ms Jones) has unlawfully benefitted from significant criminal activity, namely the cultivation and sale of cannabis in breach of ss 6 and 9 Misuse of Drugs Act 1975; and

(b)       Ms Jones has an interest in the property and is a registered owner of it along with a professional trustee.

[3]As to 14 Frasers Road and 62 Denise Crescent, the Commissioner says:

(a)        the properties are tainted property and both the second respondent (Mr French) and the third respondent (Ms Ward) have unlawfully benefitted from significant criminal activity, namely the cultivation and sale of cannabis and the supply of methamphetamine, LSD and MDMA in breach of s 6 Misuse of Drugs Act;

(b)       Mr French has an interest in 14 Frasers Road as the registered owner; and

(c)        Ms Ward has an interest in 62 Denise Crescent. She is registered as the owner of that property along with her parents.

[4]                 There is a risk of the proposed restrained property being disposed of if notice of the application were given to any or all of the persons who, to the Commissioner’s knowledge, have an interest in the proposed restrained property.

[5]                 Section 22 Criminal Proceeds (Recovery) Act 2009 (the Act) enables the Court to consider an application for a restraining order without notice if it is satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered or concealed if notice were given to the respondent or interested party.

[6]                 I have read the affidavits filed in support of the application and the memorandum of counsel in support.

[7]                 I am satisfied that, with the Commissioner’s claim that certain property was tainted in terms of the Act and those with an interest in the properties have benefitted from significant criminal activity that would account for a significant portion of the value of the parties interests in the relevant properties, there would be a risk of the properties being disposed of if the respondents or those referred to as interested parties were given notice of the application.

[8]                 Ms Jones faces no active charges and there would be no impediment to her dealing with 775 Telegraph Road to dispose of or otherwise reduce the value of her interest in that property.

[9]                 Mr French has appointed his father as power of attorney. There would be no impediment to his father dealing with 14 Frasers Road or entering into transactions that could dispose of or reduce the value of Mr French’s interest in that property.

[10]             Ms Ward co-owns 62 Denise Crescent with her parents. There is a risk that, through them, she would be able to dispose of or reduce the value of her interest in that property.

[11]             The making of this application would provide the respondents and interested parties with an incentive to deal with the properties in such a way.

[12]             The evidence before me indicates Ms Jones owns the property at 775 Telegraph Road. In 2009, her husband was convicted of conducting an cannabis cultivation in an underground shipping container at that address. In 2014, Mr French moved in to live at the address with Ms Jones. In 2015, Mr French leased a shed on the property from Ms Jones and, in May 2015, entered into an informal agreement that he would pay Ms Jones an additional $10,000 every three to four months for the lease of the shed. Mr French pleaded guilty to charges arising out of the finding of cannabis, methamphetamine and firearms at 775 Telegraph Road on 27 October 2017. He established a cannabis cultivation on the property in two shipping containers he buried underground. The Police found two buried shipping containers at the address in 2018.

[13]             There is evidence Ms Ward moved in with Mr French at 775 Telegraph Road in early 2018. The Commissioner has evidence of Ms Ward and Mr French selling controlled drugs (cannabis, methamphetamine, LSD and MDMA), keeping records of drug sales in a tick book. On 19 July 2018, Ms Ward suffered serious injuries in a motor vehicle accident. Discovered in her vehicle following the crash was drug paraphernalia, a tick book, controlled drugs and $16,410 cash. Text messaging on her cell phone evidenced both she and Mr French were dealing in large quantities of controlled drugs.

[14]             The Commissioner has evidence of Mr French making unexplained cash deposits from unknown sources of $17,102 in the period of his alleged offending before his relationship with Ms Ward and $3,120 in the period of his alleged offending with Ms Ward. The Commissioner contends Mr French’s property at 14 Frasers Road is tainted with these unknown sources of income by $20,932.80. The Commissioner contends Mr French has also obtained other unlawful benefits, namely income from his underground cannabis cultivation and income from methamphetamine sales he and Ms Ward undertook; this cash funded the purchase of drugs, portacoms, a tractor and rotary hoe, shipping containers, a wood chipper, electrical costs and pet supplies.

[15]             The Commissioner has analysed evidence which shows Ms Ward has made suspicious deposits totalling $29,273.82 in the period between 1 January 2017 and 31 December 2017. During her period of offending with Mr French between 1 January

2018 and 19 July 2018 analysis shows Ms Ward has benefitted through income from unknown sources to a total of $120,731.38.

[16]             The Commissioner has put before the Court sufficient evidence to satisfy me there are “reasonable grounds for belief” that those whose interests in property are to be restrained have benefitted from significant criminal activity. In respect of the interests of Mr French and Ms Ward in the properties at 14 Frasers Road and 62 Denise Crescent, the evidence is sufficient to satisfy me there are reasonable grounds to believe those interests are tainted property.

[17]             I accordingly make a restraining order in relation to the property identified in terms of the draft order provided with counsel’s memorandum of 28 September 2020. The duration of the order is for seven days and on the terms referred to in the order.

Solicitors:
Raymond Donnelly & Co., Christchurch.