Commissioner of Police v Smith

[2020] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-274

[2020] NZHC 2634

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

TREVOR DION SMITH (TYE)

Respondent

AND

DARLENE SHERYL TYE

Interested party

Hearing:	On the papers
Appearances:	KRL Guthrie for the applicant
Judgment:	7 October 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 7 October 2020 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Crown Solicitor, Hamilton

THE COMMISSIONER OF POLICE v SMITH (TYE) [2020] NZHC 2634 [7 October 2020]

[1]                 As duty judge, I have the Commissioner's application for an asset forfeiture order dated 16 September 2020, seeking to place some $55,000 in cash – as proceeds of sale of a car registered KBW113 and nearly $12,000 in cash, obtained in a drugs context and without apparent legitimate source – into the hands of the Official Assignee.1

[2]                 The respondent – with a history of drug offending, arrested in possession of the car containing electronic scales and two radio frequency scanners, and subsequent investigation identifying his financial transactions substantially in excess of those declared as income to the Revenue – undertook through counsel to “voluntarily surrender” the car and cash in settlement of the Commissioner’s claim. His sister, the interested party as registered owner of the car, disclaims any interest in either. After the car’s initial restraint, by consent, this Court ordered its sale to preserve its value. The present application is supported by affidavits from Daryl Grant Gera, a police investigator. The respondent’s counsel has not been able to obtain further instructions.

Law

[3]                 If I am satisfied on the balance of probabilities specific property is “tainted property” – that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity – I must make an assets forfeiture order in respect of that specific property. By the order, the property vests in the Crown absolutely and is in the custody and control of the Official Assignee.2

Discussion

[4]                 I am satisfied by Mr Gera’s evidence on the balance of probabilities the seized car and cash is tainted property, as acquired or derived in connection with significant criminal activity, being further drug offending as I have referred, or in any event with offending obtaining property with a value exceeding $30,000.3

[5]I therefore “must” make the assets forfeiture order sought.4

1      Criminal Proceeds (Recovery) Act 2009, ss 43, 44, and 49.

2      Criminal Proceeds (Recovery) Act 2009, s 50.

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

4      Criminal Proceeds (Recovery) Act 2009, s 50(1).

Result

[6]                 I make assets forfeiture orders in respect of the $43,141.38 as proceeds of the car’s sale, and of the $11,970 in cash, which all vests in the Crown absolutely, and is in the custody and control of the Official Assignee.

[7]                 At the Commissioner’s suggestion, to give the respondent and interested party final opportunity to oppose, I direct this judgment be served on them, and these orders not be sealed prior to 21 October 2020.

—Jagose J