Commissioner of Police v Morrow

[2012] NZHC 222

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2011-470-1091 [2012] NZHC 222

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDTONY CLIVE ARNOLD MORROW Respondent

Hearing:         21 February 2012

Counsel:         D J McWilliam for Applicant

Judgment:      21 February 2012

JUDGMENT OF KEANE J

Solicitors

Ronayne Hollister-Jones Lellman for Applicant: [email protected]

Copy to:

THE COMMISSIONER OF POLICE V TONY CLIVE ARNOLD MORROW HC TAU CIV 2011-470-1091 21

February 2012

T C A Morrow, 12 Chestnut Way, Tauranga

[1]      On 1 July 2010 Tony Morrow, on his plea in the District Court, Tauranga, was convicted of permitting premises to be used for the purpose of an offence against the Misuse of Drugs Act 1975, possession of cannabis for supply and selling cannabis. He was sentenced to six months home detention.

[2]      The sentencing Judge declined to make an order under s 55 of the Criminal Proceeds (Recovery) Act 2009 forfeiting $9,040 in cash found on the search of Mr Morrow's home on 6 August 2009 that established his offending and led to his plea.

[3]      The cash, packaged in clear plastic bags, in an ammunition box in a safe close to a freezer in which there were 372 grams of cannabis head, might have appeared suggestive, but there was countervailing evidence.

[4]      Mr Morrow had given for the purpose of sentence an affidavit stating that of the cash found $8,000 was a loan from his father, $700 belonged to his daughter, and that the rest belonged to him and his wife. The father gave an affidavit confirming a loan in June 2009.

[5]      In his affidavit the father explained that he had been able to make the loan as a result of recent firearms sales, a claim that when the police looked into it did not begin to stand up; and on 22 December 2010 the father, in the presence of his lawyer, made a statement accepting that his affidavit was false.

[6]      On that basis the Commissioner applied on 15 December 2011 for a profit forfeiture order, the application now in issue, and on 23 December 2011 a police officer served that application on Mr Morrow together with a Registrar's notice confirming that the case management telephone conference for the application was to be on 21 February 2012.

[7]      On 11 January 2012 Mr Morrow's counsel on sentence, who no longer represented him, telephoned counsel for the Commissioner and said that he understood Mr Morrow did not intend to oppose the application and would not participate in the telephone conference. The Registrar in two recent telephone calls

to Mr Morrow did not manage to speak to him but was told each time that he did not intend to participate.

[8]      I am satisfied, having reviewed the affidavits on sentence, set against the retracting statement of the father, that the sum discovered on the search can only plausibly have been the result of qualifying criminal activity on Mr Morrow's part,

the supply of cannabis over an extensive period. I make the order applied for.

P.J. Keane J