Commissioner of Police v Stuart

[2024] NZHC 271

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-542

[2024] NZHC 271

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 21, 24 and 25 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DYLAN RUDD STUART

First Respondent

AND

APRIL LOUISE SNELL

Second Respondent

Hearing:	On the papers
Appearances:	K South for Applicant
Judgment:	22 February 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 February 2024 at 2.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COMMISSIONER OF POLICE v STUART [2024] NZHC 271 [22 February 2024]

[1]        This is an application made on notice for a restraining order in respect of the following property:

(a)$11,032.61 funds currently held in the NZ Police trust account, being the remaining balance left (after a payment to Inland Revenue) of

$15,785 cash located on 16 March 2022 inside Volkswagen Touareg registration number JZC93, in which Dylan Rudd Stuart, Slade Graeme McGill and Tawhiri Caleb Hohaia were located;

(b)A men’s gold and diamond ring valued at approximately $12,500 also located on 16 March 2022 inside Volkswagen Touareg registration number JZC93;

(c)$32,425 in cash seized from a Ford Ranger Utility vehicle registration number LQG108, registered in the name of Dylan Rudd Stuart and driven by Dylan Rudd Stuart on 2 July 2022 outside 89 Whyte Street, Rangiora;

(d)A 2011 Ford Ranger Utility (Ford Ranger) registration number LQG108, registered in the name of Dylan Rudd Stuart, and any associated keys and immobilisation device/s, and seized by police on 13 September 2023;

(e)SS Tag Aquaracer Cal Automatic wristwatch seized during a search warrant on the first respondent’s home on 24 November 2023; and

(f)$590 cash seized during a search warrant on the first respondent’s home on 24 November 2023.

[2]        The Commissioner has also applied for an early sale order in respect of the Ford Ranger motor vehicle.

[3]        The second respondent has provided a formal written statement saying she does not intend to impose the restraint application or any further application for forfeiture of the cash.

[4]        Pursuant to directions made by Preston J on 8 November 2023, the first respondent was to file a notice of opposition and any affidavit in response no later than Friday, 2 February 2024, and the Commissioner was to file any application for a sale order by the same date. If no notice of opposition was filed, she advised that the matter would be dealt with on the papers by a duty judge.

[5]        The Commissioner has filed affidavits of service confirming all documents have been served on Mr Stuart including the amended on notice restraint application; the  application  for  an   early  sale  order;  and   the  minute  of  Preston  J  dated     8 November 2023.

[6]        While Constable Bull says Mr Stuart declined to sign a consent for early sale of the Ford Ranger vehicle, Mr Stuart has not filed any documents in opposition to either the amended application for restraint orders, nor for the early sale order. I therefore proceed to determine these applications on the papers.

Application for a restraining order

[7]        The amended application for a restraining order is supported by two affidavits of  Constable  Bull,  one   affirmed   9   October   2023,   the   other   affirmed   on  29 January 2024. He explains that the Commissioner asserts Mr Stuart, who is a patched member of the Tribesmen Motor Cycle Club, has unlawfully benefited from the significant criminal activity of selling controlled drugs. The property which is the subject of the restraining order has been seized pursuant to search warrants.

[8]        The Commissioner contends that the cash seized by police represents the profits from sales of methamphetamine as part of illegal activities carried out under the umbrella of the Tribesmen Motor Cycle gang. The affidavit evidence says this assertion is supported by the fact Mr Stuart has:

(a)limited income declared to Inland Revenue, being from Ministry of Social Development benefits;

(b)significant    funds   from    unknown   sources    transferring    through Ms Snell’s bank accounts; and

(c)convictions relating to methamphetamine and his association with the Tribesmen Motor Cycle gang.

[9]        Furthermore, financial enquiries have been made since the cash was seized which indicates Mr Stuart and Ms Snell have received large volumes of unexplained funds consistent with those funds being laundered.

[10]      The jurisdiction to make a restraining order is found in s 25 of the Criminal Proceeds (Recovery) Act 2009 (CPRA). This Court may make an order relating to all or part of a respondent’s property if it is satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity. Having read the affidavits of Constable Bull in support of the amended application for a restraining order, I am satisfied there are reasonable grounds to believe that the respondents have unlawfully benefited from significant criminal activity as defined in the CPRA and it is appropriate to make the orders as sought.

Application for an early sale order

[11]      The second aspect of the application is an application for an early sale order. This is sought in respect of the Ford Ranger motor vehicle in order to preserve its value at the time it was restrained.

[12]      The Commissioner’s concern is that most vehicles depreciate in value and Inland Revenue advise that the depreciation of 21 per cent can be claimed on a vehicle per year. The current market valuation for the Ford Ranger obtained via the Info Log database places its value range between $13,600 and $16,650. Constable Bull notes that proceedings under the Act can be protracted in which time vehicles can devalue considerably. If the Commissioner was unsuccessful in obtaining a civil forfeiture order and the vehicle was returned to the respondent, its value would be less than if the vehicle was sold now and the proceeds of sale returned to the respondent after being held on an interest bearing deposit. Constable Bull also notes that the Official Assignee would be incurring costs for the vehicle’s storage, insurance and upkeep, while it is in the Official Assignee’s custody.

[13]      I accept that, for the reasons given in Constable Bull’s affidavit, both the Commissioner and the respondents are best served by the Ford Ranger motor vehicle being sold now rather than physically retained while the proceedings under the Act progress to resolution.

Outcome

[14]I make orders as sought in:

(a)the  amended  on  notice  application   for  restraining   order   dated 29 January 2024; and

(b)the application for an early sale order dated 29 January 2024.

Solicitors:

Crown Solicitor, Christchurch