Commissioner of Police v Lawson

[2021] NZHC 837

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-000049

[2021] NZHC 837

UNDER

IN THE MATTER OF

BETWEEN

the Criminal Proceeds (Recovery) Act 2009

an application under ss 43, 44, 49 and 50 of the Criminal Proceeds (Recovery) Act 2009

COMMISSIONER OF POLICE
Applicant

AND

CHRISTOPHER LAWRENCE LAWSON

First Interested Party

Hearing:

19 April 2021

Appearances:

M Mitchell for Applicant

C L Lawson, First Interested Party, in person

Judgment:

20 April 2021

JUDGMENT OF GWYN J

(Claim by First Interested Party)

[1]    The applicant, the Commissioner of Police, seeks a restraining order and 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]    Mr Lawson is an interested party. He is unrepresented. He has filed a notice of opposition to the Commissioner’s applications and an affidavit in support.

COMMISSIONER OF POLICE v LAWSON [2021] NZHC 837 [20 April 2021]

[3]    For the Commissioner, Detective Constable Buckley and Constable Warren have filed affidavits.

Background

[4]    The background to the matter is set out in the affidavits of Detective Constable Buckley and Constable Warren. In summary, that background is as follows.

The Cash

[5]    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.

[6]    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.

[7]    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, separated into bundles and secured with rubber bands.

[8]    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.

[9]    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.

[10]   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.

[11]   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.

[12]   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.

Mr Lawson

[13]   On 6 May 2020, the interested party, Mr Lawson, phoned Constable Warren and claimed that the Cash was his property. Mr Lawson told Constable Warren that he had cancer and that various people had gifted him money to help with his rehabilitation, and the Cash comprises those donations, totalling approximately

$40,000-$50,000. Mr Lawson told Constable Warren that he had documentation to prove that, and Constable Warren advised him to bring that documentation into the Police station.

[14]   Constable Warren  met with Mr Lawson at the Hastings Police station on     12 May 2020. Mr Lawson did not produce any supporting documentation at that meeting.

[15]   On 14 May 2020,  Constable  Warren  visited  Mr  Lawson  at  his  home.  Mr Lawson told Constable Warren that he had been released from Hawke’s Bay Prison on 29 April 2020. Three or four days after being released from prison, he noticed that two bags of his were missing. One of these bags was described as a “black bag with

a shoulder strap handle which contained paperwork, documents and receipts”. He reported the theft to Police on 6 May 2020, and he has produced a Police acknowledgement of that report.

[16]   The Police evidence is that Ms Downs did not mention to Police either at the time of the Police search of the Jull Street address, or some months later when she spoke with Constable Warren, that the Cash belonged to Mr Lawson.

[17]   The evidence Mr Lawson relied on in support of his claim to the Cash is detailed below, at [27]-[33].

The application for an asset forfeiture order

[18]   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, notes that application will fall away if the asset forfeiture order is made.

[19]   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

[20]   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.1

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

[21]   The Commissioner relies on the evidence set out in the affidavits of  Detective Constable Buckley and Constable Warren. The Commissioner’s case is that the Court can be satisfied from that evidence that the Cash is wholly or in part derived from the proceeds of the sale of drugs and is therefore tainted property.

[22]   However, during the course of Mr Lawson’s  cross-examination  of  Constable Warren, it became apparent that a further person, Ms W, was outside the Jull Street address on 9 October 2019, and she is the subject of charges which have not yet been heard. The evidence in relation to Ms W is likely to be 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.

[23]   It is regrettable that not all the evidence relevant to the Commissioner’s application has been placed before the Court. Ms Mitchell was not in a position to explain the charges relating to Ms W and whether the evidence underlying those charges is relevant to the application before me.

[24]   For that reason, the application for an asset forfeiture order is adjourned, and the Commissioner is to file any further evidence in support of the application by     10 May 2021.

[25]   However, I indicated to the parties that on the basis of the material available to me, and Mr Lawson’s confirmation to me that he does not know Ms W, I could determine whether or not Mr Lawson has a valid claim to the Cash, separately from reaching a final conclusion on whether to grant the asset forfeiture order.

Does Mr Lawson have a valid claim to the Cash?

[26]   I turn then to Mr Lawson’s claim. At the hearing on 19 April 2021, Mr Lawson cross-examined Detective Constable Buckley and Constable Warren. He then gave evidence on his own account and was cross-examined by Ms Mitchell. I heard submissions from both Mr Lawson and Ms Mitchell. I also  have the  affidavits of Mr Lawson, Detective Constable Buckley, and Constable Warren.

Mr Lawson’s evidence and submissions

[27]   Mr Lawson’s evidence is that he obtained the Cash from people who gave him donations to assist in his recovery from cancer. He received the money from various donors over a period of about 10 years. He is not able to identify the donors, as most if not all of them were not known to him. He said they would have been aware of his situation and his need for help through the Cancer Society. He referred to some of the donors giving him paper work or “receipts”.

[28]   Mr Lawson said that he has a bank account but did not bank the donations. He spent some of the money given to him during the relevant period. Because of his poor physical and mental health at the relevant times he was not in a state of mind to consider fully what to do with the money, so he “put it away”.

[29]   Mr Lawson said he had a fair idea of the amount of the Cash, but did not know an exact figure. There had been media reports from the Police which variously referred to $40,000 and $50,000, which is why he mentioned those figures to Constable Warren.

[30]   Mr Lawson said he gave the Cash to Ms Downs to count, and also because he wanted to impress her. He suggested that the reason Ms Downs never mentioned to Police that the Cash belonged to him was probably because he had not told her where he got the money from, so she did not want to say anything until she had consulted with him. Mr Lawson attached a hand-written letter from Ms Downs to his affidavit, which says that Mr Lawson was a client of Ms Downs in her escort work, and that the Cash belongs to Mr Lawson.

[31]   Mr Lawson said he waited to approach Police about his ownership of the Cash until he thought the case in relation to Ms Downs had been completed, because he thought that was the proper process and that the Cash would have been held in safekeeping by the Police in the meantime. He disputes the sequence of events described by Constable Warren and says that he went to the Police station to talk to the officer in charge of the case, Detective Fox, but that Constable Warren met him instead. His evidence is that Constable Warren did not ask for a copy of the property record sheet dated 9 October 2019. Mr Lawson referred to the note at the bottom of

that report which says: “Note: Original to owner of thing seized or person from whom property seized, Duplicate to file, Triplicate to remain with property.” As I understood Mr Lawson’s affidavit, he believed having that property record sheet gave him ownership of the Cash.

[32]   Mr Lawson’s submission is that the evidence from Detective Constable Buckley and Constable Warren is hearsay. Their evidence does not support the Commissioner’s submission that the Cash is “tainted property” for the purposes of the Act. He said that the evidence he has given shows the Cash is his money, and it should be returned to him.

[33]   Mr Lawson also submitted that while he may not have followed a proper procedure for making his claim, that is because he is not a lawyer and because he continues to have mental health issues.

The Commissioner’s submissions

[34]   Ms Mitchell submitted that the Court can be satisfied that it is more likely than not that the Cash does not belong to Mr Lawson, for the following reasons:

(a)The  Cash  is  a  substantial  amount.  During  the  relevant  period   Mr Lawson was in receipt of a social welfare benefit and had no other known source of income.

(b)Mr Lawson’s explanation of how he received the Cash is not tenable. He is not able to identify any of the supposed donors, nor how they would have known of his need for assistance.

(c)Mr Lawson’s explanation that he had “receipts” for the donations, which were stolen, is not credible. It is unusual that persons providing donations would provide receipts, rather than the other way around. Nor is there any apparent reason why the receipts would have been stolen.

(d)Mr Lawson was unable to quantify the Cash and mentioned varying amounts in his interviews with Police. It is highly unusual that he would ask Ms Downs to count the money for him, given that on his own evidence, he knew her only as a client through a commercial relationship.

(e)The circumstances in which the Police located the Cash at the Jull Street address – inside a black bag under a pillow, together with cannabis, pipes used to consume methamphetamine, and packing and equipment indicative  of  drug  dealing  activities  –   is   not   consistent   with Mr Lawson’s explanation that he gave Ms Downs the Cash to count for him.

(f)When asked by Police to explain the Cash, Ms Downs denied ownership and offered no additional information as to ownership.

(g)It was not until seven months later that Mr Lawson approached Police and made a claim over the Cash. The timing of his claim to be the owner and his report to Police of the theft of the “receipts” casts doubt on his claim.

Analysis

[35]   At  Mr  Lawson’s  request,  a  copy  of  the  transcript  of  the   hearing  on   19 April 2021 is to be provided to the parties. I asked Mr Lawson if he wanted the opportunity to file further written submissions after he has received the transcript, and before I reach a decision on his claim to the Cash, but he confirmed that he does not wish to do so. Accordingly, I proceed to analyse the competing evidence and submissions on this issue.

[36]   First, I accept that on the evidence before me, it is clear that Mr Lawson was diagnosed with and received treatment for cancer over a lengthy period. That is not in dispute.

[37]   However, a number of key aspects of Mr Lawson’s evidence lack credibility. He says that he received donations totalling a very significant amount, but he is not able to identify any of the donors, other than referring to “Michael”, whose surname he does not know.

[38]   Mr Lawson says that he did not, for example, set up a “Give a Little” account, but that donors would have known of his situation through the Cancer Society. However, the only evidence before the Court of his connection with the Cancer Society is a letter dated 14 October 2020 from the Cancer Society confirming that Mr Lawson was invited to attend the Society’s 2017 Relay for Life event, and that he has a ribbon to confirm his attendance at that event.

[39]   Mr Lawson did not live at the Jull Street address. His evidence is that he knows Ms Downs only as a client of hers.   In that context, I find it highly unlikely that    Mr Lawson would have given Ms Downs a large amount of cash, to hold for an indeterminate period, so she could count it for him.

[40]   While there is some dispute on the evidence about the sequence of contact between Mr Lawson and Constable Warren, and  at  what  point  in  that  sequence Mr Lawson reported the theft of the bag containing the “receipts”, I do not think anything turns on that. The essential point is that Mr Lawson did not advance his claim to the Cash until many months after it was found by the Police during their search of  the  Jull  Street  address.  The  closeness  in  timing  of  that  claim  and  Mr Lawson’s report of the theft of the “receipts” casts doubt on the credibility of   Mr Lawson’s claim.

Result

[41]   I am satisfied on the balance of probabilities that the Cash is not Mr Lawson’s property. He has no further interest in the proceeding.

[42]   As I have already noted, the Court is not in a position to make a final decision on the Commissioner’s application for an asset forfeiture order. That application is adjourned and the Commissioner has until 10 May 2021 to file any further affidavit evidence in support of the application.

Gwyn J

Solicitors/Counsel:

Elvidge and Partners, Napier

Copy to:
C L Lawson, Napier