Commissioner of Police v McIntyre
[2024] NZHC 3741
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2024-442-000061
[2024] NZHC 3741
UNDER The Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of a without notice application for a
restraining order pursuant to ss 22(1), 24 & 25 of the Criminal Proceeds (Recovery) Act 2009
BETWEEN
THE COMMISSIONER,
THE NEW ZEALAND POLICE
ApplicantAND
BRENT ANTHONY MCINTYRE
First Respondent
TAMMY (AKA BRYAR ROSE) WILLIAMSON
Second Respondent
JACQUELINE MARGARET NEARY
First Interested PartyWESTPAC BANK LIMITED
Second Interested Party
Hearing: (On the papers) Counsel:
J M Webber for Applicant
Judgment:
10 December 2024
Reissued:
12 February 2025
JUDGMENT OF LA HOOD J
(Redacted version for publication]
THE COMMISSIONER, THE NEW ZEALAND POLICE v MCINTYRE [2024] NZHC 3741 [10 December 2024]
Introduction
[1] The Commissioner of Police (the Commissioner) applies without notice for restraining orders relating to specified parts of the respondents’ property under ss 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) on the basis that:
(a)the property is tainted; and
(b)the respondents have unlawfully benefitted from significant criminal activity.
Proposed restrained property
[2]The Commissioner seeks to restrain the following property:
(a)All interests in the property at 460 Hamama Road, Takaka, Tasman District 7183, Title Number NL11C/1284, being PT Lot 1 DP 14731 and PT SECS 85 86 SQ II BLK II TAKAKA SD, registered owners Brent Anthony McIntyre and Jacqueline Margaret Neary, other than the interest of Westpac Bank Limited as the holder of a registered mortgage (“the property”). The property has a rateable value of
$900,000 and an estimated market value of $795,000 as at 28 November 2024. The outstanding loan from Westpac was
$31,178.61 as at 12 December 2023.
(b)All funds held in the following accounts, provided that the credit balance of the accounts exceeds $1,000 at the time of the making of the restraining order (“the bank accounts”):
Financial
Institution
Account Number Name Westpac Bank [Redacted] Mahinga Organics
Ltd
Kiwibank [Redacted] Brent McIntyre ANZ Bank [Redacted] Tammy Williamson ANZ Bank [Redacted] Tammy Williamson
(c)A Massey Ferguson 5445 tractor, registration plate A4QBP, unregistered, located at 460 Hamama Road, Takaka (“the tractor”).
(d)A 2016 Ford Territory Titanium A station wagon, registration JMY754, registered to Brent McIntyre (“the Ford Territory”).
(e)A Rimu Engineering brand portable sawmill, serial number 03301900C (“the sawmill”).
Parties
[3]The respondents are:
(a)Brent McIntyre, a 59 year old man. He has three previous convictions, which are not drug related. He is a registered owner of the property.
(b)Mr McIntyre’s partner, Tammy Williamson. She has no previous convictions.
[4] The first interested party is Jacqueline Neary, Mr McIntyre’s former partner. She separated from Mr McIntyre in 2004 but lived on the property until around 2013 or 2014. She is a registered owner of the property and has contributed to the mortgage up until 10 March 2020.
[5] The second interested party is Westpac Bank, the holder of a registered mortgage interest over the property. The Commissioner does not seek to restrain Westpac’s mortgage interest, meaning that Westpac will be able to take steps relating to its interest without having to seek a variation to the restraining order, if it is granted.
Grounds for restraint
[6] The Commissioner submits that there are reasonable grounds to believe that the proposed restrained property is tainted because the respondent has not had legitimate sources of income with which to accumulate such property. There is a reasonable inference available that the property has been accumulated using income derived, at least in part, from the cultivation and sale of cannabis.
[7] The Commissioner further submits that there are reasonable grounds to believe that the respondents have unlawfully benefitted from significant criminal activity, namely the cultivation and sale of cannabis.
Legal principles
[8] Under s 22 of the Act, the Court can consider an application for a restraining order without notice if the Court is “satisfied that there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given”.1
[9] Under s 24 of the Act, the Court may issue a restraining order if it has “reasonable grounds to believe” that property is tainted property.2 “Tainted property” is defined as any property that has “wholly or in part” been acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity.3
[10] Under s 25 of the Act, the Court may issue a restraining order over property if it has “reasonable grounds to believe” that the respondent has unlawfully benefitted from significant criminal activity.4
[11] Restraining orders are issued on the basis of “reasonable grounds to believe, rather than proof” that the respondent has unlawfully benefitted from significant criminal activity or that the property is tainted property.5 It is intended as a “holding measure” to allow the Commissioner further time to gather evidence for an ongoing investigation, and which may lead to forfeiture but only on completion of further processes.6
1 Criminal Proceedings (Recovery) Act 2009, s 22.
2 Section 24(1).
3 Section 5.
4 Section 25.
5 Vincent v Commissioner of Police [2013] NZCA 412 at [47].
6 Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].
[12] In Commissioner of Police v Smith the Court summarised these principles as follows:7
The threshold for making an order under s 25 has been described as “relatively low”. That is because the court is not required to make a finding that the respondent has unlawfully benefitted from significant criminal activity. As the Court of Appeal explained in Vincent v Commissioner of Police restraining orders are often sought in situations of urgency. Restraining orders are temporary orders to give the police time to gather further evidence leading to possible forfeiture of property. Restraining orders are made where the court has reasonable grounds for the requisite statutory belief. The onus on the Commissioner is not one of proof but to adduce a sufficient evidential basis to enable the Court to be satisfied it has reasonable grounds for the requisite belief. Thus, an application for a restraining order may proceed justifiably on an evidentiary basis that in other contexts would be regarded as non-compliant with requirements of the Evidence Act 2006 as to admissibility.
The significant criminal activity
[13] The significant criminal activity alleged in this case is the cultivation and sale of cannabis.
[14] The police executed a search warrant at the property on 15 March 2022, as part of the National Cannabis Recovery and Eradication Operation. Several cannabis plots each containing multiple mature plants were located. Two hundred and eleven plants were found.
[15] Police executed another search warrant at the property on 20 December 2022. They found 321 cannabis plants, a large quantity of growing equipment and 50 grams of cannabis head material.
[16] The respondents each face two charges of cultivating cannabis and one charge of possession of cannabis. They have unsuccessfully challenged the admissibility of evidence obtained from the police searches. They are now challenging the evidence based on a different alleged issue with the search.
[17] In 2013 the first respondent Brent McIntyre was charged with cultivating cannabis at the property, possession of cannabis for sale, possession of psilocybin and
7 Commissioner of Police v Smith [2017] NZHC 10 at [10].
theft of electricity. The second respondent, Tammy Williamson, was living at the property at the time but was not charged.
[18] The 2013 cultivation involved 470 plants. Police also found 15.9 kilograms of cannabis leaf material and 2.192 kilograms of cannabis head material. The first respondent admitted that the cannabis plants were his. The second respondent told police that she was aware of some cannabis growing at the property, but not all of it.
[19] The first respondent successfully challenged the admissibility of the evidence obtained as a result of the search and all charges were dismissed (other than the psilocybin charge that had been withdrawn).
[20] The Commissioner contends that the respondents have unlawfully benefitted directly or indirectly from significant criminal activity. The 2022 police searches located a minimum of 522 successfully cultivated cannabis plants. In light of the 2013 seizure, the Commissioner contends the respondents have been cultivating commercial levels of cannabis in consistent amounts from at least 2012 until at least the final search in December 2022.
[21] The Commissioner contends that, based on a drug expert’s evidence about the quantity of plants and yield, a conservative and reasonable estimated unlawful benefit for these years would be a profit of $297,000 for each year. This is supported by analysis of the respondents’ declarations and bank accounts, which show unexplainable cash deposits, a failure to reconcile the bank account information with what is declared to the IRD, and a stark change in patterns after the last two search warrants were executed on the property and the cannabis crops were seized.
[22] The Commissioner says that the respondents have derived an unlawful benefit of a minimum of $1,976,864.98 comprised of:
(a)estimated cannabis cultivation profits of $297,000 per year for the 5 years of 2017-2021, being $1,485,000; and
(b)The property’s capital gain over the period the profits tainted the mortgage account, being $440,000.
Financial information
[23] The Commissioner has obtained income information from the IRD for the seven-year period from 2017 to 2023, as well as banking information for the period from 2017 to 2024.
[24] The Commissioner contends that the respondents have declared very modest income over the last seven years. The affidavit in support of the application describes the first respondent’s income in the 2020–2022 tax years after tax and loan repayments as averaging $13,604. The second respondent’s income during those years was in the form of payments from IRD, likely Working for Families, averaging $9,459 per year. The second respondent has received some rent payments from her adult son Mr Bray, who lives with the respondents. Mr Bray is a beneficiary whose benefit income averages $8,039 per year. In summary, the Commissioner says the declared source of income for a family of four is very low.
[25] The Commissioner’s evidence is that the respondents have received unexplained cash deposits and third party deposits, particularly in the 2019 to 2022 years. These have dropped off in 2023 and 2024 after the two warrants were executed in 2022. For example, they received cash deposits of $26,640 in 2021 and $32,580 in 2022. These dropped to $2,300 in 2023 and $1,800 in 2024. It appears that the respondents have obtained a $50,000 loan from the first respondent’s mother in 2023. This suggests that they have lost a source of income since the execution of the warrants in 2022.
Restraint under s 24 of the Act
The property
[26] The Commissioner’s evidence satisfies me that the mortgage on the property has been serviced by payments from several accounts, and that one of these is an account (Mahinga Whenua Organics) that has received unexplained cash deposits
totalling $75,725 between 2018 and 2024. Rates have also been paid from that same account.
[27] I therefore have reasonable grounds to believe that the property is tainted property, as being wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity.
The tractor
[28] I am also satisfied on the Commissioner’s evidence that the purchase of the tractor was funded in part from the Mahinga Whenua Organics account. Therefore, I have reasonable grounds to believe that the property is tainted property, as being wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity.
The sawmill
[29] The Commissioner’s evidence satisfies me that the first respondent has stated that the sawmill was purchased for $26,000 and upgraded by buying a further fitting at a cost of $9,900. I accept the Commissioner’s contention that there are reasonable grounds to believe that the respondents have not had sufficient legitimate income to fund purchases totalling $35,900 purchase. Therefore, there are reasonable grounds to believe that the sawmill is tainted property, as being wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity.
Restraint under s 25 of the Act
[30] In any event, the Commissioner’s evidence satisfies me that there are reasonable grounds to believe that the respondents have unlawfully benefitted from significant criminal activity (the cultivation and sale of cannabis), and that a restraining order is appropriate in respect of the property, the tractor, and the sawmill.
[31] The Commissioner’s evidence also satisfies me that the Ford Territory has been registered to the first respondent since 19 July 2022, that it was funded with a $10,000 bank transfer and a trade-in, and is clearly the property of at least the first respondent.
Therefore, I am satisfied it is appropriate to make a restraining order in respect of the Ford Territory under s 25 of the Act.
[32] Finally, a restraining order under s 25 of the Act is appropriate in respect of the bank accounts provided that the credit balance of the accounts exceeds $1,000 at the time of the making of the restraining order.
Application without notice
[33] I am satisfied it is appropriate to deal with the application without notice on the basis that there is a risk of the proposed restrained property being destroyed, disposed of, altered or concealed if notice of the application were given. I accept there is a risk that the respondents could take steps such as increasing the borrowing against the property, given the low level of borrowing at present. Moreover, the tractor, the Ford Territory and the mobile sawmill are all capable of being moved and concealed.
Orders
[34] I therefore grant the without notice application and order that the property described at [2] above:
(a)is not to be disposed of, or dealt with, other than as is provided for in the restraining order; and
(b)is to be in the Official Assignee’s custody and control.
La Hood J
Solicitors:
O’Donoghue Webber, Nelson for Applicant
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