Commissioner of Police v Ruru

[2022] NZHC 751

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2022-416-1

[2022] NZHC 751

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 43, 44 and 49

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

SHAUN RURU

Respondent

AND

CHAKHAN HAWEA

Interested Party

On the Papers

Counsel:

M Mitchell for the Applicant

No appearances for the Respondent or Interested Party

Judgment:

12 April 2022

JUDGMENT OF GWYN J

[1]                  This is an application by the Commissioner of Police (Commissioner) under ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act) for forfeiture of $17,150 in cash (the property), located at the previous residential address of the respondent, Shaun Ruru and the interested party, Chakhan Hawea.

[2]                  The application for forfeiture dated 17 January 2022, supporting affidavit of Ms Jessie Michelle Donald dated 21 November 2020, accompanying memorandum and letter of service from the Crown was personally served on Mr Ruru on 7 March 2022. Constable Robert Dench has sworn an affidavit of service.

THE COMMISSIONER OF POLICE v RURU [2022] NZHC 751 [12 April 2022]

[3]                  Counsel for the Commissioner advises that, also on 7 March 2022, she received a call from Ms Hawea, the interested party, in which Ms Hawea expressed the view that she and the respondent (with whom she still lives) did not wish to participate in these proceedings.

[4]                  The application was first called on 21 March 2022 and neither the respondent nor the interested party appeared.

[5]                  In these circumstances, the Commissioner asks for the application to be determined on the papers.

Relevant legislation

[6]                  Under s 50 of the Act, if the Court is satisfied on the balance of probabilities that specific property is tainted property, it must make an assets forfeiture order in respect of that specific property.

[7]“Tainted property” is defined in s 5 of the Act, as follows:

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

[8]The Act also defines “significant criminal activity”, in s 6:

6 Meaning of significant criminal activity

(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—

(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

(b)from which property, proceeds, or benefits of a value of

$30,000 or more have, directly or indirectly, been acquired or derived.

(2)A person is undertaking an activity of the kind described in subsection

(1) whether or not—

(a)the person has been charged with or convicted of an offence in connection with the activity; or

(b)the person has been acquitted of an offence in connection with the activity; or

(c)the person’s conviction for an offence in connection with the activity has been quashed or set aside.

…

[9]                  The evidence provided in Ms Donald’s affidavit is that the property was found by Police during the execution of a search warrant at the home address shared by the respondent and the interested party on 13 February 2014. The cash was contained inside a bucket that also contained various drug dealing paraphernalia.

[10]              As a consequence of the subsequent police investigation, both the respondent and the interested party pleaded guilty to charges of possession of cannabis for supply and sale of cannabis.

[11]              When questioned by the Police on his arrest, the respondent said that the bucket containing the cash had been given to him by his deceased stepfather, who the respondent claimed had been a “big drug lord”. The interested party disclaimed any knowledge of the cash or the bucket in which it was contained.

[12]              Ms Donald’s evidence is that neither the respondent nor the interested party had any legitimate source of income that would explain the presence of such an amount of cash in their house.

[13]              Ms Donald’s affidavit also refers to letters from a third person, Ms E, found during the Police search of the house, which referred to both cash and “buckets”. Ms E has since been imprisoned for methamphetamine dealing which took place during this time period. Ms E has disavowed any knowledge of the cash and confirmed that she makes no claim to it.

[14]              The submission for the Commissioner is that the cash is more likely than not to have been directly or indirectly derived from the sale of controlled drugs (sale of the Class C drug cannabis, which is the least serious offence relevant to these proceedings and carries a maximum penalty of eight years’ imprisonment).

Orders

[15]              Having read the application for forfeiture, memorandum in support of the application, affidavit of  Jessie  Michelle  Donald,  affidavit  of  service  of  Constable Robert Dench, and the memorandum of counsel dated 10 April 2022, I am satisfied that it is more likely than not that the property is “tainted”, being acquired as a result of significant criminal activity.

[16]Accordingly, I make an order pursuant to s 50 of the Act that the property:

(a)vests in the Crown absolutely; and

(b)is to be in the Official Assignee’s custody and control.

Gwyn J

Solicitors:
Elvidge & Partners, Napier