Commissioner of Police v Lawson

[2021] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-000049

[2021] NZHC 1250

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 43, 44, 49 & 50

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

CHRISTOPHER LAWRENCE LAWSON

First Interested Party

On the Papers
Counsel:	M Mitchell for Applicant
Judgment:	31 May 2021

JUDGMENT OF GWYN J

(Application for Asset Forfeiture Order)

[1]                   The applicant, the Commissioner of Police, seeks an asset forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (the Act). The property which is the subject of the application is cash totalling $36,715 (the Cash). The Commissioner contends that the Cash is tainted property because it is derived from the supply of methamphetamine and/or cannabis.

[2]                   I previously considered a claim by the first interested party, Mr Lawson, that the Cash is his. I determined that the Cash did not belong to Mr Lawson and that he has no further interest in the proceeding.1

1      Commissioner of Police v Lawson [2021] NZHC 837.

COMMISSIONER OF POLICE v LAWSON [2021] NZHC 1250 [31 May 2021]

[3]                   In that judgment, I adjourned the Commissioner’s application for an asset forfeiture order and directed the Commissioner to file any further evidence in support of the application.

The application

[4]                   The Commissioner’s application for an asset forfeiture order is made in reliance on ss 43, 44, 49 and 50 of the Act. Although there is also an extant application for a restraining order, Ms Mitchell, counsel for the Commissioner, noted that application will fall away if the asset forfeiture order is made.

[5]                   The Commissioner’s submission is that the Cash is tainted property, as defined in s 5 of the Act:

tainted property—

(a)means 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; and

(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

[6]                   Pursuant to s 50 of the Act, the Court must be satisfied on the balance of probabilities that specific property is tainted property. If so satisfied, the Court must make an assets forfeiture order in respect of that specific property. For the Court to be satisfied on the balance of probabilities, it must be satisfied that it is “more probable than not” that the property is tainted property.2

[7]                   During the course of the hearing of Mr Lawson’s application, it became apparent that further evidence, not at that stage before the Court, was relevant to the Commissioner’s application and in particular to the question of whether the Cash is “tainted property” for the purposes of the Act. For that reason, I adjourned the application for an asset forfeiture order and directed that the Commissioner file any further evidence in support of the application.

2      Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [102].

[8]                   The Commissioner says the Cash is tainted property because it was acquired as a result of, and/or indirectly derived from, significant criminal activity, namely the supply of controlled drugs (the sale of methamphetamine, LSD, or cannabis, all of which attract maximum penalties of more than five years’ imprisonment).

[9]                   The Commissioner relies on the affidavit evidence of Detective Constable Samuel William Buckley (dated 20 July 2020) and Constable Jaryd Michael Warren (dated 14 July 2020 and 6 May 2021), which summarises the circumstances in which the Cash was located.

Background

[10]               On 9 October 2019, Police attended at an address in Jull Street, Napier.        A passing Police patrol had seen a man who they believed had an outstanding warrant to arrest, and that man attempted to hide behind a tree before running into the       Jull Street address.

[11]               The  attending  Police  officer  spoke  to   the   occupant   of   the   address, Ms Varna Lee Downs, who allowed them to search inside the house. While searching the address, Police located a glass bong, commonly used to smoke cannabis, and then invoked emergency search powers, pursuant to the Search and Surveillance Act 2021.

[12]               As a result of the search, evidence of drug use was located in the bedroom, including a small amount of cannabis, empty point bags, small electronic scales, and three glass pipes. In addition, a black bag was located underneath the pillows on the bed, in the bedroom. The bag contained the Cash, totalling $36,715, separated into bundles and secured with rubber bands.

[13]               The plastic packaging from the cannabis, the point bags and the rubber bands securing the Cash were forensically examined. No fingerprints were obtained from the plastic packaging or point bags. The rubber bands were sent to the ESR, but no profiles were obtained due to the possibility of cross-contamination that had occurred.

[14]               The Jull Street address is a small one-bedroom apartment attached to a larger house. Ms Downs was the sole occupier. Two men were also at the apartment

with Ms Downs  when  Police  carried  out  their  search,  Mr  Rhys  Spark  and     Mr Richard Te Rure.

[15]               Ms Downs told Constable Warren that $450 in cash located on the kitchen bench was hers (this has subsequently been returned to Ms Downs). She said the Cash in the bedroom was not hers and it must have been someone else’s who was at her home. Neither of the two men present in the apartment at the time of the Police search claimed any knowledge or ownership of the Cash. It was seized as an exhibit by the Police.

[16]               As a result of the search, Ms Downs was charged with possession of utensils (for methamphetamine) and possession of cannabis. Those charges were withdrawn by leave in the Napier District Court on 3 March 2020.

[17]               Ms Downs  has  six  previous  drug-related  convictions.  Mr  Te  Rure  has six previous drug-related convictions, most recently for possession of methamphetamine.  Mr Spark has two previous drug-related convictions.  Neither  Mr Te Rure nor Mr Spark were charged as a result of the Police search of the Jull St address.

[18]               The additional evidence from Constable Warren, dated 6 May 2021, notes that when the man outside the Jull Street address was first observed, he was speaking to a woman who was later identified as a Ms Asia Waitere and holding a dark object in his hands. After initially trying to hide from Police, he ran inside the address, still holding the dark coloured object. When Ms Waitere was spoken to by the Police she denied any knowledge of the man’s identity.

[19]               Mr Te Rure was identified as the man who had been standing on the front lawn with Ms Waitere.

[20]               During the time they were at the address, the Police observed Ms Waitere drive past the address on a number of occasions. When sufficient Police resource became available she was stopped, and she and her vehicle were searched. In the course of that search, Police located approximately 98 LSD tabs, a number of electronic scales,

empty ‘point’ bags, police scanners, a .23 rifle, a methamphetamine ‘tick’ list, three grams of methamphetamine, and $2,500 in cash. A subsequent analysis of cell phones seized from Ms Waitere has resulted in her being charged with possession for supply and supply of more than 300 grams of methamphetamine.

[21]               A resulting Police operation has led to Mr Te Rure also being charged with the supply of methamphetamine.

The Commissioner’s submissions

[22]The Commissioner’s submission, based on that evidence, is that:

(a)It is more likely than not that the Cash is associated with and derived from the sale of controlled drugs.

(b)The address at which the Cash was found is known to be associated with drug dealing. Ms Downs is the sole ordinary occupant of that address. Both she and Mr Te Rure have previous convictions for the supply of methamphetamine. Neither were willing to acknowledge any association with the Cash, despite it being found under Ms Downs’ pillow and despite Mr Te Rure having been observed by Police immediately prior to the search holding a dark coloured object. The Police submit that object is consistent with the appearance of the black bag in which the cash was ultimately located.

(c)The fact that Mr Te Rure had run into the address at the sight of the Police, the fact that the other occupants had initially denied that he was present at the address at all, the fact that Mr Te Rure had effectively been interrupted while speaking with Ms Waitere (who had also fled police, and who had all of the trappings of active drug dealing with her at the time, and is now charged with extensive drug offending) all further contribute to the inference that Police had interrupted either an active or a completed drug dealing transaction and that the Cash comprises the proceeds of that transaction.

Analysis

[23]               Notwithstanding the lack of opposition to the order now sought, I must be satisfied on the balance of probabilities that the property over which the order is sought is “tainted property” as defined in s 5 of the Act.3 Once satisfied, I must make an order.

[24]               Having considered all of the evidence filed in support of the application and the submissions summarised above, I am satisfied on the balance of probabilities that the Cash is tainted property as defined in s 5 of the Act. I grant the asset forfeiture order sought on the terms set out in the application of 20 July 2020.

Gwyn J

Solicitors/Counsel:

Elvidge and Partners, Napier

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