Commissioner of Police v Pullen

[2023] NZHC 3398

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-46

[2023] NZHC 3398

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 43, 44 and 49 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KEEGAN LORENZO PULLEN

Respondent

Hearing:

28 November 2023

Counsel:

C White for Applicant

No appearance by or on behalf of Respondent

Judgment:

28 November 2023

JUDGMENT OF BREWER J

Solicitors:

Raymond Donnelly & Co (Christchurch) for Applicant

COMMISSIONER OF POLICE v PULLEN [2023] NZHC 3398 [28 November 2023]

Introduction

[1]                  This Judgment decides an application by the Commissioner of Police (the Commissioner) for an assets forfeiture order. The application proceeded by way of formal proof since, in the end, the respondent, Mr Pullen, took no steps.1

[2]                  On 1 May 2021 police were called to an address in Aranui, Christchurch following a reported shooting. Mr Pullen, a patched member of the Black Power, was found outside the address with a gunshot wound to his stomach.

[3]                  Attending ambulance staff removed Mr Pullen’s clothing and handed it to the police. In one pocket were 1.01 grams of methamphetamine and $17,355 in cash (the cash).

[4]                  A subsequent search of Mr Pullen’s home address, the address at which he was shot, revealed two unlawfully owned shotguns and corresponding ammunition. There was nothing found in the house associated with the use of methamphetamine.

[5]                  The application for a forfeiture order is on the basis that the cash is tainted property because it has, wholly or in part, been acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity, namely the sale of methamphetamine.

The law

[6]                  The governing statute is the Criminal Proceeds (Recovery) Act 2009 (the Act). Pursuant to s 50 of the Act, the court must make an assets forfeiture order if the court is satisfied on the balance of probabilities that specific property is tainted property.

[7]“Tainted property” is defined as:2

(a)means any property that has, wholly or in part, been—

(i)acquired as a result of significant criminal activity; or

1      Minute of Dunningham J, 16 October 2023.

2      Criminal Proceeds (Recovery) Act 2009, s 5.

(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

[8]                  “Significant criminal activity”, in this case, means an activity engaged in by a person that if proceeded against as a criminal offence would be punishable by a maximum term of imprisonment of five years or more.3 Dealing in methamphetamine is such an offence.

[9]                  The Commissioner has filed in support of the application the affidavits of Christopher James Gardner and Chelsea Tyler Aisthorpe Kennedy. The former is an experienced Detective who interviewed Mr Pullen and then investigated his explanations. The latter is a forensic accountant who analysed Mr Pullen’s financial affairs.

[10]              Essentially, Mr Pullen said that the cash was the proceeds of legitimate but undeclared income derived by him from a number of sources. He accepted that he could not bring evidence to support what he said. His explanations, as reported by Detective Gardner, are inconsistent with each other and at times contradictory. The Detective’s investigations found no evidence to support Mr Pullen’s explanations. Indeed, his most cogent explanations (undeclared income from scaffolding jobs) were disproven.

[11]              The evidence of Ms Kennedy is to the effect that the accumulation of the cash is inconsistent with Mr Pullen’s record of income over the years as maintained by the Inland Revenue Department. Much of that income is derived from Social Welfare benefits.

[12]              Ms Kennedy is also of the opinion that the accumulation of the cash is inconsistent with Mr Pullen’s banking records which, themselves, show unexplained deposits and withdrawals.

3      Criminal Proceeds (Recovery) Act 2009, s 6(1).

[13]The Crown’s submission is:

25.It is submitted that the circumstances in which the cash was found strongly suggests that it was derived from significant criminal activity, namely the supply of methamphetamine:

a.The cash was found alongside 1.01 grams of methamphetamine. Although only a small quantity of methamphetamine, it is notable that no evidence of methamphetamine personal use such as pipes, bongs or straws were located during the search.

b.It is unusual for a person to carry such a large quantity of cash. It is well known that people who engage in the illegal drug trade regularly utilise cash as a method of avoiding detection. Mr Pullen advised in his examination that he had been saving up the money in a safe over a number of years, however, it is known that Mr Pullen had three bank accounts which he was a regular user of so the explanation is unlikely.

c.Firearms were also located at the address. It is common for people who are involved in the illegal drug trade to unlawfully possess firearms either as a means of protection or to utilise for more violent purposes. This is further supported by the fact that the Police were responding to Mr Pullen having been shot at the address.

Decision

[14]              I am satisfied, in the absence of any credible explanation from Mr Pullen as to how he came to have the cash, that the Commissioner has established it was the proceeds of significant criminal activity relating to the supply of methamphetamine. Mr Pullen, a patched member of the Black Power, was found with a small amount of methamphetamine directly alongside the cash. There was nothing in his house which would suggest the recreational use of methamphetamine. The amount of cash is very significant when compared with Mr Pullen’s legitimate income and even the unexplained cash deposits and withdrawals from his bank accounts. On the balance of probabilities, I conclude that the cash was derived from significant criminal activity, namely the sale of methamphetamine.

[15]              It follows that  the cash is  tainted property  because it  is  the proceeds  of  Mr Pullen’s significant criminal offending. There is no suggestion there is any other person who may have an interest in the cash. There is no outstanding claim to it. Accordingly, I grant the Commissioner’s application for an assets forfeiture order,

namely $17,355 plus any accumulated interest, and I direct that the cash is to vest in the Crown absolutely and is to be in the Official Assignee’s custody and control.

Brewer J