Commissioner of Police v Smyth

[2012] NZHC 414

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-3859 [2012] NZHC 414

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDGLEN SMYTH Respondent

Hearing:         12 March 2012

Counsel:         RMA McCoubrey for Applicant

No appearance by or on behalf of Respondent

Judgment:      13 March 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 March 2012 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Meredith Connell (Auckland) for Applicant

(Copy to Respondent in person)

THE COMMISSIONER OF POLICE V SMYTH HC AK CIV-2010-404-3859 [13 March 2012]

Introduction

[1]      The  Commissioner  of  Police  seeks  asset  forfeiture  orders  in  respect  of property he contends belongs to Mr Smyth and which he says is tainted property. The property seized by the Police was a Toyota Soarer motorcar, a Holden Commodore motorcar, and a Ducati motorcycle.   These vehicles have since been sold and so what is at issue is the net sums held by the Official Assignee.[1]   There is a further $5,410 in cash seized by the Police.

[1] The net sums (as advised orally by Mr McCoubrey) being: Toyota Soarer, $1,198.00; Holden

Commodore, $3,445.48; Ducati motorcycle, $7,320.00.

[2]      Mr Smyth filed an affidavit dated 14 October 2010 deposing that only the Toyota Soarer belonged to him and about half of the cash.  He appeared in person in this  Court  before  Lang J  on  28 November  2011  to  oppose  the  Commissioner’s application.    Lang J  set  a  timetable  for  the  filing  of  Mr Smyth’s  documents  in opposition and set the matter down for a further call in the Duty Judge list on

19 December 2011.  Mr Smyth took no steps and on 19 December 2011 I set the case down for a hearing.

[3]      The matter was called on 12 March 2012.   There was no appearance by Mr Smyth.   Mr McCoubrey for the Commissioner told me that the Police believe him to be in Blenheim.  Messages have been left for him reminding him of today’s hearing.  In the circumstances I proceeded by way of formal proof.

Background

[4]      Mr  Smyth  was  one  of  the  suspects  located  in  a  major  Police  operation (Operation Skull) aimed at interdicting the manufacture and supply of methamphetamine.  From analysis of intercepted communications, the Police formed the   view   that   Mr Smyth   was   using   a   Mr Martin’s   address   to   manufacture methamphetamine.   On the night of 30 March 2010, Mr Smyth was seen leaving Mr Martin’s address in Ness Valley Road on the Ducati motorcycle. The Police gave

chase but Mr Smyth got away.

[5]      The Police subsequently searched the address and found what the Police considered to be the traces of a methamphetamine manufacturing operation.

[6]      Mr Smyth made telephone calls while he was hiding from Police in a field of maize.  They were intercepted by the Police.  He said he had “packed up and left” (when  the  Police  searched  Mr Martin’s  address  the  equipment  associated  with making methamphetamine had been packed up).  He said “the cops are on to us”. He also said:[2]

How did they get on to it, what made them come out there, I’m in big trouble, okay.  I’m in big shit man, I’m in big trouble, I fucked up.

[2] R v Smyth & Hendry HC Auckland CRI-2010-092-4750, 24 August 2011, at [20].

[7]      Mr Smyth was  also associated with methamphetamine-making equipment found at a lockup storage unit.[3]

[3] Affidavit of Nicholas Perry Davenport sworn on 21 June 2010, paras 2.8-2.10.

[8]      Mr Smyth was eventually located at a motel in April 2010.  He tried to get away but was caught.   He had on his person some $2,473.  A similar sum (about

$2,937) was found in the motel unit which he was sharing with a Mr Harris.

[9]      Mr Smyth was charged in relation to the methamphetamine manufacturing operation found at Mr Martin’s address at Ness Valley Road.  He was subsequently discharged pursuant to s 347 Crimes Act 1961 by Duffy J on 24 August 2011 at his trial.[4]

The basis of the prosecution case

[4] R v Smyth & Hendry, above n 2.

[10]     The starting point for the Commissioner’s case is that Police investigations show that Mr Smyth, who has been stopped regularly by the Police over many years, has always stated that he was unemployed.  He has not received any State benefits since 30 April 2008.  The Police regard his situation around about March 2010 as being a snapshot of his life.  There is simply no evidence of any legitimate source of

income to pay for the property seized.  The evidence is that he was a manufacturer of

methamphetamine.  His criminal record shows that in 2005 he was imprisoned for four years on charges related to dealing in methamphetamine.

[11]     Of the vehicles seized, the Toyota Soarer was registered in his name on

8 September  2008.     Its  estimated  auction  value  was  $6,000.     The  Holden Commodore  was  registered  in  Mr Smyth’s  name  on  21 September  2009.    The purchase price is said to be $10,000 in cash.  The Ducati motorcycle was registered in the name of a Mr Price on 6 January 2009.  However, the vendor, a motorcycle sales  company,  said  that  it  was  purchased  by  Mr Smyth  for  $20,000  in  cash. Mr Price filed an affidavit saying that the motorcycle was actually his and he had lent it to Mr Smyth. That contradicts what Mr Price earlier told a police officer.

[12]     As to the cash, the $2,473 found in his possession is accepted by Mr Smyth in his affidavit as belonging to him.   No explanation is given as to its source.   He deposes that the rest of the cash found in the motel belonged to an unnamed friend.

[13]     It is significant that no-one else has tried to claim the balance of the cash. Mr Price has not pursued a claim to the Ducati and likewise nobody has claimed the Holden Commodore.

[14]     Police inquiries have shown that Mr Smyth has only one bank account.  The balance in that account as at 28 May 2010 was $6.46.

[15]   Mr McCoubrey for the Commissioner submits that on the balance of probabilities I should conclude that, for a number of years, Mr Smyth has lived by manufacturing methamphetamine and has been involved in its sale.   There is no explanation to the contrary and Mr Smyth’s own affidavit offers no explanation for how he came to have the Toyota Soarer and the cash found on his person.   His criminal record does not reveal any other area of commercial endeavour.

Decision

[16]     The legislation applicable is the Criminal Proceeds (Recovery) Act 2009 (the

Act).  Section 50(1) provides:

If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court  must  make  an  assets  forfeiture  order  in  respect  of  that  specific property.

[17]     “Tainted property” is defined in s 5 of the Act.  It:

(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.

[18]     “Significant criminal activity” is defined in s 6 of the Act:

(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.

[19]   Manufacturing methamphetamine or dealing in methamphetamine is a significant criminal activity.

[20]     The fact that Mr Smyth was discharged at his trial is irrelevant.[5]

[5] Criminal Proceeds (Recovery) Act 2009, s 6(2)(b).

[21]     Standing back and looking at the matter overall, I am satisfied on the balance of probabilities that the property sought to be forfeited is tainted property.   It has been acquired in whole or in part from significant criminal activity.  Mr Smyth has not been in receipt of any legitimate income that the Police have been able to find. He says nothing about such a source.   I do not accept that if significant cash and valuable motorcars were owned by persons other than Mr Smyth, that those persons

would not have come forward and made a claim.   Accordingly, I treat all of the

property  as  being  owned  by  Mr Smyth.    The  clear  involvement  he  had  with methamphetamine, although not sufficient to secure a conviction at the criminal trial, is nevertheless able to satisfy me on the balance of probabilities that the Commissioner has made out his case.

[22]     Accordingly, I grant the asset forfeiture application and order as follows:

The net proceeds of the sale of the three motor vehicles, namely:

1993 Toyota Soarer, registration CCT854;

1998 Holden VT Commodore, registration 1DVS1;

1999 Ducati 996 SPS, registration 70YZJ

plus the $5,410 cash seized;

plus any interest thereon;

vests in the Crown absolutely and is in the custody and control of the Official

Assignee.

Brewer J