Commissioner of Police v Newton

[2014] NZHC 226

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2010-409-002542 [2014] NZHC 226

IN THE MATTER OF

Application pursuant to the Criminal

Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

MATTHEW ALLEN NEWTON First Respondent

ALEXANDER BLACK Second Respondent

LANCE LEE Third Respondent

GEMMA AITKEN Fourth Respondent

SIRIKAYLA THIPTHAWEE Seventh Respondent

RORY MANUEL Eighth Respondent

RUSSELL STAFFORD RICCARDO HARRIS

Ninth Respondent

MICHAEL LESLIE SMITH Tenth Respondent

SARAH MAY NEWTON Eleventh Respondent

Hearing:	(On Papers)
Judgment:	20 February 2014

COMMISSIONER OF POLICE v NEWTON & ORS [2014] NZHC 226 [20 February 2014]

JUDGMENT OF WHATA J

[1]      This proceeding concerns an application by the Commissioner of Police for forfeiture  of  various  assets  said  to  be  the  product  of  criminal  activity.    The application is not opposed by any of the affected parties.   Helpfully, counsel has provided  submissions  in  relation  to  the  application,  together  with  supporting evidence.  In this regard I wish to commend the Commissioner for the very thorough evidence provided by police.1   It is unnecessary to traverse it here given the consent arrangements.    Nevertheless,  as  trial  Judge  in  criminal  proceedings  concerning several of the respondents, I had the benefit of viewing the evidence in support of the

prosecution.  The affidavit evidence in this case reflects the significant investigation and assimilation of information undertaken by the police. It demonstrably justifies the forfeiture orders.

Agreements and orders

[2]      Agreement  has  been  reached  between  the  first,  seventh  and  eleventh respondents.   The Commissioner of Police has authorised settlement on terms as set out in the memorandum as required by s 95(1) of the Criminal Proceeds (Recovery) Act 2009.

[3]      In summary, the Commissioner of Police sought the forfeiture of: (a) $22,555; and

(b)       Five vehicles, including:

(i)        2000 Audi A6 currently registered to Gemma Aitken;

(ii)       1999  Triumph  Daytona  motorbike  registered  to  Alexander

Black;

1      Refer affidavit of Dorothy May McPhail sworn 8 November 2010.

(iii)      Nissan Skyline unregistered;

(iv)2001    Holden    Commodore    registered    to    the    eleventh respondent; and

(v)       1993 BMW registered to the eleventh respondent.

[4]      As recorded in the memorandum, Ms Aitken, the fourth respondent, has taken no steps in these proceedings and Mr Black has indicated through counsel that the forfeiture of the 1999 Triumph Daytona motorbike is unopposed.

[5]      The proposed settlement is then on the following terms:

(a)      The cash and motor vehicles referred to in paragraph [3] save the Nissan Skyline and its associated import documentation is vested in the Crown absolutely and is to be in the Official Assignee’s custody and control pursuant to s 50 of the Criminal Proceeds (Recovery) Act together with any interest accrued; and

(b)The Nissan Skyline and associated import documentation is to be returned to, or collected by a nominated representative of Mr Newton, the first respondent.

[6]      In the absence of opposition, given the background to this application (a methamphetamine operation for which the first-fourth and eighth-tenth respondents were convicted of relevant offending), I am satisfied that the order as sought should be made.

[7]      A settlement is also agreed with the seventh respondent, Ms Thipthawee. She consents to the forfeiture of $37,240.   The settlement proposed is said to be essentially  identical  to  the  settlement  entered  into  and  approved  by  this  Court between the Commissioner and Ms Poomsatan.   That outcome is recorded in my minute dated 27 March 2012 and there shall be a similar order accordingly.

Finally

[8]      There is the application for forfeiture in relation to assets concerning the third respondent, Mr Lee.  Mr Lee’s counsel has filed a memorandum confirming that the application is no longer opposed.  The application relates to the sum of $38,945 said to have been seized from Mr Lance Lee at 7 Gregory Avenue and 184 Johns Road, Christchurch.

[9]     Mr Lee has been convicted of the various offending in relation to a methamphetamine enterprise.  The evidence concerning that methamphetamine was conclusive  and  clear,  establishing  a  clear  nexus  between  the  offending  and  the money seized.

[10]     As there is now no opposition to the forfeiture order, an order is granted accordingly.

Summary

[11]     I am satisfied in terms of s 95 of the Criminal Proceeds (Recovery) Act that the forfeiture orders are:

(a)       Consistent with the purposes of the Act, and; (b)        The overall interests of justice.

[12] I am also satisfied in terms of s 50 of the Criminal Proceeds (Recovery) Act that on the balance of probabilities the money seized from Mr Lee and referred to at [9] above is tainted property.

[13]     There shall be orders of forfeiture:

(a)       Against  the first,  seventh  and  eleventh  respondents  in  accordance with the consent memoranda (and as noted above);

(b)Against the sum of $38,945 seized from Mr Lee at 7 Gregory Avenue and 184 Johns Road, Christchurch;

(c)       An order for forfeiture of the sum of $37,240 that was seized from

Ms Thipthawee at 106 Bishop Street, St Albans, Christchurch.

Solicitors:

Raymond Donnelly & Co, Christchurch

P B McMenamin, Christchurch
Simon Shamy,Christchurch

Michael Starling, Christchurch

AND Garrett, Christchurch
T Fournier, Christchurch