Commissioner of Police v Swan

[2022] NZHC 1963

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000137

[2022] NZHC 1963

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JACOB RONALD JAMES SWAN

First Respondent

AND

JOSHUA GRAEME ROCHFORD

Second Respondent

AND

MIKAYLA NGAIRE HENDERSON

Third Respondent

Hearing:	9 August 2022
Appearances:	S J Mallett for Applicant (by VMR) No appearance for Respondents
Judgment:	10 August 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 10 August at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COMMISSIONER OF POLICE v SWAN [2022] NZHC 1963 [10 August 2022]

Introduction

[1]                 The Commissioner of Police applies for an assets forfeiture order pursuant to s 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]                 The application relates to $47,140 in cash (the specified property) found as follows:

(a)$10,000 in cash located inside vehicle registration KZK452; and

(b)$37,140 in cash located in a storage unit at 832 Main North Road, Woodend, Christchurch.

[3]                 The Commissioner contends that the cash is the proceeds of methamphetamine offending conducted by the three respondents and is tainted property.

[4]                 The three respondents have indicated either directly to the court or through counsel that they do not intend taking any steps in relation to the application and have each expressly disavowed any interest in the specified property.

Assets forfeiture order

[5]                 Section 50 of the Act mandates the Court to make an assets forfeiture order if certain prerequisites are met:

50       Making assets forfeiture order

(1)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.

(2)Subsection (1) is subject to section 51.

(3)The Court must specify in an assets forfeiture order the property to which the order applies and that the property—

(a)vests in the Crown absolutely; and

(b)is in the custody and control of the Official Assignee.

(4)Despite subsection (1), the Court may not make an assets forfeiture order in relation to property that no person has claimed an interest in,

unless the Court is satisfied, on the balance of probabilities, of the following additional matters:

(a)that a restraining order was earlier made in relation to the same property; and

(b)that the restraining order has been in place for a period of at least 1 year; and

(c)that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.

(5)If any property that is land is vested in the Crown absolutely as a consequence of an assets forfeiture order made under subsection (3), an interest recorded on the title to the land that is not affected by the assets forfeiture order is not extinguished.

[6]                 The specified property in this case has been restrained since 23 June 2021. No person has approached the Commissioner making enquiries regarding the whereabouts of the specified property nor claiming an interest in the property.

[7]                 The task before the Court is to consider whether the specified property is tainted property within the definition set out in s 5 of the Act. If the Court is satisfied on the balance of probabilities that it is tainted property the forfeiture order must be made. An application for an assets forfeiture order can be determined by way of formal proof.1

$10,000 in cash located inside vehicle registration KZK452

[8]                 On 10 January 2022 at 12.55 am, police commenced pursuit of a Toyota Highlander vehicle with registration KZK452 after the driver failed to stop for police. The vehicle was registered to Omega Car Rentals. The pursuit was abandoned. At about 2.39 am that same morning, the vehicle KZK452 was located in the driveway of an address on Hills Road, Christchurch. Located inside the vehicle was a rifle, ammunition, a set of electronic scales, ‘point bags’, a large number of cell phones and the $10,000 in cash.

[9]                 In the back of the vehicle was mail addressed to the first respondent. In the front passenger footwell was a purse belonging to the third respondent, containing her

1      Commissioner of Police v Mauga [2015] NZHC 1071.

driver’s licence and bank cards. Also located in the vehicle was an empty hotel room card that had the room number 702 Fino Hotel and Suites. Enquiries conducted with the hotel confirmed that a booking had been made by the second respondent. The second respondent had checked into the room with another male and they parked two vehicles, one of which had the number place KZK452.

[10]              Further enquiries conducted by the police established that vehicle KZK452 was registered as belonging to Omega Car Rentals. The vehicle had been hired by Vanessa Stokes-Anisy. The address and email she gave was linked to the second respondent. Ms Stokes-Anisy advised police that the second respondent had asked her to hire the vehicle for him in exchange for 0.5 gram of methamphetamine. He gave her a card to pay  for  the  vehicle.    She  uplifted  the  vehicle  and  dropped  it  off   to  him.     Ms Stokes-Anisy advised that the second respondent is a methamphetamine dealer.

[11]              A forensic examination of the vehicle KZK452 located the second respondent’s fingerprint on the front passenger window. Thus all three respondents can be linked to the vehicle and the cash inside the vehicle, notwithstanding that they now disavow any interest in the property.

[12]              The Court can be satisfied on the balance of probabilities that the cash was derived from significant criminal activity (ie methamphetamine dealing) and is therefore tainted for the following reasons:

(a)it is unlikely that a person would be driving around with $10,000 in cash at 2.39 am in the morning for legitimate purposes – it is more likely the proceeds of late-night methamphetamine dealing;

(b)the cash was found alongside firearms and a significant quantity of ammunition as well as ‘point bags’ and electronic scales – these are known indicia of drug dealing;

(c)on 24 February 2022 the first respondent pleaded guilty to possession of methamphetamine for supply;

(d)on 20 July 2021 the second respondent pleaded guilty to 23 charges of supplying methamphetamine and possession of utensils for methamphetamine use;

(e)the vehicle in which the cash was found was a rental and was hired by a third party for the second respondent in exchange for 0.5 gram of methamphetamine – this is consistent with the second respondent wishing to remain anonymous due to his participation in illicit activity; and

(f)an analysis of text data located on numbers attributed to the three respondents evidenced multiple examples of methamphetamine dealing.

[13]              For these reasons I find on the balance of probabilities that the specified property is tainted property and must be forfeited.

$37,140 in cash located in a storage unit at 832 Main North Road, Woodend,

Christchurch

[14]              On 7 February 2020, police executed a search warrant at a storage unit at 832 Main North Road, Woodend, Christchurch. The purpose of the warrant was to locate stolen property and to arrest the first respondent for breaching his parole.

[15]              The police had reason to believe that the storage unit had been booked under a false name and that the rent for the unit was being paid for by someone called “Jake”,

i.e. the first respondent. Police were able to identify the first respondent coming and going from the unit using CCTV footage.

[16]During the execution of the warrant, police located the following:

(a)a bag containing $37,140 in cash; and

(b)another bag containing a set of electronic scales, a grey telephone address book with names and amounts recorded under the alphabetical

tabs (i.e. a ‘tick list’), three cell phones, a glass pipe, an orange wallet containing a large quantity of small plastic zip-lock bags and property stolen from various burglaries around Christchurch and North Canterbury.

[17]              In total there were 12 cell phones and six SIM cards located at the property. The first respondent’s fingerprints were later located on one of the phones.

[18]              The Court can be satisfied on the balance of probabilities that the $37,140 in cash located at the storage unit was derived from significant criminal activity (i.e. methamphetamine dealing) and is therefore tainted property for the following reasons:

(a)it is unlikely that a person would be keeping $37,140 in cash in a storage unit if the money was otherwise legitimate – it is reasonable to assume that legitimate funds of that quantity would be deposited into a bank account;

(b)the cash was found alongside indicia of drug offending, including the property listed at [16](b);

(c)the  storage  unit  can  be  linked  to  the  first  respondent  who,  on  24 February 2022, pleaded guilty to possession of methamphetamine for supply;

(d)an analysis of text data located on a number attributed to the first respondent evidenced multiple examples of methamphetamine dealing; and

(e)an analysis conducted by police of bank accounts belonging to the first respondent for the period 1 January 2017 to 18 May 2020 shows that he had no income from a legitimate salary or wages over that period, rather there were multiple cash deposits into his account consistent with methamphetamine dealing.

[19]              For those reasons I find that the $37,140 in cash is tainted property as that is defined in s 5 of the Act and must be forfeited.

Result

[20]The application for a forfeiture order is granted.

[21]Counsel shall file orders for sealing in accordance with this judgment.

Doogue J

Solicitors:
Crown Solicitor, Christchurch