Commissioner of Police v Mackle
[2025] NZHC 1067
•6 May 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2024-406-008
[2025] NZHC 1067
UNDER Sections 22, 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of a without-out notice application for a restraining order
BETWEEN
THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant
AND
CHRISTOPHER WILLIAM EDWARD MACKLE
Respondent
Hearing: On the papers Appearances:
J M Webber for Applicant
No appearance for Respondent
Judgment:
6 May 2025
JUDGMENT OF GRICE J
(Application for a without-notice restraining order – prior to civil forfeiture order)
Background
[1] Mr Mackle is charged with a number of offences related to online scams. Mr Mackle has pleaded guilty to a representative charge of obtaining documents for pecuniary advantage (photographs of driver licenses), a representative charge of altering documents with intent to defraud (creating and selling false identities), and a charge of failing to comply with a search obligation.
COMMISSIONER OF POLICE v MACKLE [2025] NZHC 1067 [6 May 2025]
[2] In a judgment of 27 August 2025, Grau J made on-notice restraining order on the papers without opposition.1 This related to the sum of $75,900 cash. The Judge concluded there were reasonable grounds to believe that the cash was tainted property and the respondent had unlawfully benefited from significant criminal activity.
[3] The factual basis of the new application is based on evidence from a criminal investigation carried out jointly by the Department of Internal Affairs and Police. Mr Mackle now faces a number of charges including:
(a)Possessing and designing goods capable of being able to be used to facilitate crimes involving dishonesty, maximum penalty three years’ imprisonment;
(b)Obstructing police, maximum penalty three months’ imprisonment;
(c)Failing to comply with a search obligation, maximum penalty three months’ imprisonment,
(d)Representative charges of obtaining and using documents for pecuniary advantage, maximum penalty seven years’ imprisonment;
(e)A representative charge of altering documents with intent to defraud (forgery), maximum penalty 10 years’ imprisonment; and
(f)A representative charge of engaging in a money laundering transaction, maximum penalty seven years’ imprisonment.
[4] The Commissioner has identified further property that is owned by the respondent, namely:
(a)The contents of a Superlife account in the name of Chris Mackle, valued at $113,644.38 as at 15 January 2025;
1 Commissioner of Police v Mackle [2024] NZHC 2406.
(b)The contents of a Hatch Invest account in the name of Christopher Mackle valued at USD$26,203.48 as at 4 February 2025; and
(c)400109011.30 units of various crypto currencies with a value of
$180,926 as at 22 August 2024, presently held in a New Zealand Police cryptocurrency wallet.
[5] The Commissioner applies for without notice for a restraining order in relation to the contents of the Superlife and Hatch Invest accounts, as these accounts are not presently under the control of the Police. I deal with this matter today.
[6] The Commissioner has at the same time filed an on-notice application for a restraining order. That application relates to the contents of the Superlife and Hatch Invest accounts and also to the crypto currency units. The currency units are presently held in a Police crypto currency wallet, therefore a without notice application is not sought.
[7] The Superlife and Hatch accounts are discussed in the affidavit of Rochelle Fitzgerald. Those accounts (along with the crypto currency) were identified as a result of documents found during the searches of the respondent’s properties. That had given rise to the original on-notice application to restrain the $75,900 cash.
[8] Ms Fitzgerald deposes that Mr Mackle deposited $144,054 into the Superlife account between 1 January 2018 and 4 April 2024. Similarly, Mr Mackle deposited USD$17,999.79 into the Hatch Invest account between February 2021 and August 2024. Both of those date ranges cover periods of the respondent’s alleged offending.
[9] The basis of the present application is that the property is tainted (restraint prior to asset forfeiture) and Mr Mackle has unlawfully benefited from significant criminal activity and the cash is his property (restraint prior to profit forfeiture). The applications are made pursuant ss 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act).
Investigation
[10] Ms Fitzgerald in her affidavit of 16 May 2024, provided an overview including references to text message scams, and technologies used to perpetrate them, such as SMI-boxes. She explained that SMI-boxes, are capable of holding multiple SIM cards at once and are used with a computer to send large numbers of text messages.
[11] Items were located in the search warrants at two addresses associated with the respondent in Kaikoura and in his vehicle as follows:
(a)A total of 16 SIM boxes, some containing multiple SIM cards.
(b)Over 20,000 unopened One NZ SIM and 2-degrees cards.
(c)47 sandwich sized zip lock bags containing SIM cards.
(d)Six large rubbish bags of empty One NZ SIM card packaging.
(e)$75,900 in cash and hundreds of used and active SIM cards.
(f)42 Prezzy Cards, many with self-adhesive stickers attached, detailing their use.
(g)Crypto keys.
[12] Further Mr Mackle discarded a laptop and a cryptocurrency wallet outside somewhere. The wallet was located in a paddock nearby, but the laptop has not been found.
[13] The Commissioner contends that information including from a telecommunication company obtained under a production order, identified 60,000 cell phone numbers associated with Mr Mackle equating to over 34,000,000 messages sent from his devices.
[14] Through various investigative means, Police have identified $473,132.73 in attempted text scams, with at least 20 victims suffering financial loss totalling over
$300,000. Two particular victims lost $68,257.56 and $136,922.47 respectively.
[15] In a financial analysis, Ms Fitzgerald calculates that the respondent’s financial income from 1 April 2017 to 31 March 2023 was $105,903.50 meaning his average income over that time was $17,658 per annum. Despite this low income, Police have identified the following in possession of the respondent:
(a) $75,900 cash;
(b)Superlife account worth $113,644.38;
(c)Hatch Invest account worth USD$26,203.48 (approximately $44,000 NZD).
(d)400109011.30 units of various crypto currencies worth $180,926.
Total $414,470.38.
[16] Mr Mackle told Police in March 2024 he was operating a legitimate business selling and renting mobile phone numbers on an Internet based website. Police agree he does sell mobile phone numbers via this website. Mr Mackle also explained he ran a business renting out access to SIM cards in his SIM boxes. However, the latter explanation appears unlikely given that it would mean that customers of that business had sent the scam messages without his knowledge.
Legal Principles
[17] I am required to be satisfied on a twin basis that for the purpose of granting the restraint orders: prior to asset forfeiture; and prior to profit forfeiture that:
(a)The property is tainted (restraint prior to asset forfeiture); and
(b)Mr Mackle has unlawfully benefited from significant criminal activity and the cash is his property (restraint prior to profit forfeiture).
[18] “Significant criminal activity” and “unlawfully benefited” is defined at ss 6 and 7 of the Act as follows:
(a)“Significant criminal activity” means an activity that if proceeded against as a criminal offence would amount to offending that includes one or more offences punishable by five years’ imprisonment or more, or from which benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
(b)“Unlawfully benefited” means knowingly, directly or indirectly, derived a benefit from significant criminal activity.
[19] The offence of using a document to obtain a pecuniary advantage carries a maximum penalty of seven years’ imprisonment and amounts to significant criminal activity.
[20] The Court may make a restraining order if it is satisfied that there are reasonable grounds to believe that the property is tainted property (i.e. prior to asset forfeiture):
24Making restraining order relating to specific property that is potentially tainted
(1)A court hearing an application for a restraining order relating to specific property may, if the court is satisfied it has reasonable grounds to believe that any property is tainted property, make an order that the property (restrained property)—
(a)is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
(b)is to be under the Official Assignee’s custody and control.
(2)A restraining order may be made under subsection (1) whether or not there is a respondent in relation to whom the restraining order relates.
[21]“Tainted property” is defined at 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.
[22] Property that is the proceeds of using a document to obtain a pecuniary advantage, will be tainted property, as will benefits of over $30,000 obtained as a result of any criminal offending.
[23] The Court may make a restraining order if it is satisfied that there are reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity (i.e. prior to profit forfeiture):
25Making restraining order relating to all or part of respondent's property
(1)A court hearing an application for a restraining order relating to all or part of a respondent's property may, if the court is satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity, make an order that the property it specifies in the order (restrained property)—
(a)is not to be disposed of, or dealt with, other than is provided for in the restraining order; and
(b)is to be under the Official Assignee's custody and control.
(2)A restraining order made under subsection (1) may relate to any of the following:
(a)all of a respondent's property (including property acquired after the making of the order):
(b)specified parts of a respondent's property:
(c)all of a respondent's property (including property acquired after the making of the order) other than specifically excluded property.
Analysis
[24] A person who has knowingly benefited from using a document to obtain a pecuniary advantage will have unlawfully benefited from significant criminal activity, as will a person who has obtained a benefit of $30,000 or more as a result of any criminal offending.
[25] Restraining orders are effectively interim orders of limited duration. They are temporary orders, which give the police time to gather further evidence, and may lead to forfeiture but only on the completion of further processes. Restraining orders are issued on the basis of reasonable grounds to believe, rather than proof, that the target has unlawfully benefited from significant criminal activity. Affidavits containing hearsay are admissible at the restraining order stage.2
[26] I have formed the required belief, based on the range of evidence which is before me, some of which would not be admissible at the stage where forfeiture orders are considered or at criminal trial. However, the restraining orders will preserve the position until substantive applications are considered later. The grounds I have are reasonable based on the information I have set out above. This assessment is based on a realistic, or real world assessment of the circumstances.3
[27] The interim without notice restraining order is made in terms of the first application of 5 May 2025. The following property is not to be disposed of, or dealt with, other than as is provided for in the restraining order; and is to be in the Official Assignee's custody and control:
The contents of a Superlife account member number [redacted], in the name of Chris Mackle and as of 15 January 2025 totalling $113,644.38 (subject to daily changes due to return on investments); and
The contents of a Hatch Invest account number [redacted] totalling
$26,203.48 (subject to daily changes due to return on investments).
2 Vincent v Commissioner of Police [2013] NZCA 412.
3 Commissioner of Police v Needham [2022] NZHC 470.
[28] The interim order above will continue in force until 26 May 2025 or further order of this Court.
[29] The on-notice application is also to be listed in the call-over for the Criminal Proceeds List at 9 am on 26 May 2025.
Grice J
Solicitors:
O’Donoghue Webber, Nelson for Applicant
0
3
0