Commissioner of Police v Taurerewa
[2021] NZHC 3226
•29 November 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-152
[2021] NZHC 3226
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an application under sections 21, 24, 25
and 52
BETWEEN
THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant
AND
TE ORA QUELINE TANIA MAKATEA TAUREREWA
First Respondent
ADIDAS TITA MAKATEA MIHAKA
Second Respondent
Hearing: 29 November 2021 Counsel:
V M Rea and A W M Britton for Applicant No appearance for the Respondents
Judgment:
29 November 2021
JUDGMENT OF ELLIS J
[1] By an on-notice application dated 23 March 2021, the Commissioner of Police seeks a profit forfeiture order under s 55 of the Criminal Proceeds (Recovery) Act 2009 (the CPRA) for a sum of cash totalling $10,900, seized during a warrantless search of a Wellington property rented by the second respondent (Mr Mihaka) and his partner. Ms Taurerewa, the first respondent and cousin of Mr Mihaka, was present at the time. The search also located what was believed to be cannabis (around 45g), scales, and several zip lock bags that together led Police to believe they had found evidence of the sale and supply of cannabis.
COMMISSIONER OF POLICE v TAUREREWA [2021] NZHC 3226 [29 November 2021]
[2] During the search, Ms Taurerewa was reluctant to be searched; she insisted on using the bathroom first. As she stood up to walk there, bank notes fell from her clothing. Police then found $10,340 in cash concealed on her person. The balance of the cash subject to the forfeiture application was found in a cardboard box ($160) and in a black jacket ($400).
[3] Ms Taurerewa, Mr Mihaka, and Mr Tawhara (her partner) were each charged with possession of cannabis for supply.1
[4] On 16 February 2021, the charges against all three were dismissed under s 147 of the Criminal Procedure Act 2011 because the cannabis had not been tested.2
[5] On 23 March 2021, the Commissioner then filed applications for on-notice restraining orders and profit forfeiture orders, supported by affidavit evidence.3 The subsequent procedural chronology is as follows:
(a)27 April: Mr Mihaka filed a notice of opposition to both those applications, without any supporting evidence.
(b)3 May: Isac J in his minute directed that Mr Mihaka and Ms Taurerewa file evidence in support and take steps in the proceeding by 14 June.
(c)10 June: Counsel for Mr Mihaka sought leave to withdraw, on the basis that legal aid had not been granted.
(d)23 June: Ms Taurerewa filed a notice of opposition to the Commissioner’s applications.
1 Misuse of Drugs Act 1975, s 6(1). Mr Tawhara is not a party to the present application because Police now accept his position that he was not involved in the offending and had no interest in the cash seized.
2 Wellington Police prosecutors had sought for the charges to be withdrawn under s 146 of the CPA, but counsel for Ms Taurerewa then successfully sought the s 147 orders.
3 I discussed with counsel for the Commissioner whether the delay of approximately one month between the dismissal of the charges and the filing of this application might be problematic, in terms of the requirement to return something seized “immediately” following the dismissal of a charge under ss 151(1)(e) and 151(2) of the Search and Surveillance Act 2012. His advice was that Police interpret the word “immediately” as meaning after the expiry of any appeal period, which, without the benefit of argument on the point, appears to me to be reasonable.
(e)28 June: Grice J adjourned the call at the Judge’s chambers list so that Mr Robinson could advise Ms Taurerewa (who had recently been granted legal aid).
(f)23 August: Grice J granted on-notice restraining orders, with consent of Ms Taurerewa and without active opposition—in the form of either an appearance by, or evidence from—Mr Mihaka.
(g)15 September: Ms Taurerewa filed a memorandum of counsel confirming that she consented to the Commissioner’s forfeiture application.
(h)30 September: Churchman J directed that:
(i)the forfeiture application be set down for hearing by way of formal proof;
(ii)excusing Ms Taurerewa from all further calls of the proceeding;
(iii)any forfeiture orders made would be sealed after a period determined by the Court, unless Mr Mihaka sought leave to vary the judgment; and
(iv)the Commissioner was to serve a copy of any minute and judgment of the Court on Mr Mihaka.
[6] Further affidavits were filed by the Commissioner on 12 October and 16 November 2021.
Profit forfeiture: relevant law
[7] Section 43 of the CPRA empowers the Commissioner to apply for civil forfeiture orders; a profit forfeiture order (as sought here) is a type of civil forfeiture order.4
4 Criminal Proceeds (Recovery) Act 2009 [CPRA], s 5.
[8]Section 55 then more specifically provides:
55 Making profit forfeiture order
(1)The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
(a)the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
(b)the respondent has interests in property.
(2)The order must specify—
(a)the value of the benefit determined in accordance with section 53; and
(b)the maximum recoverable amount determined in accordance with section 54; and
(c)the property that is to be disposed of in accordance with section 83(1), being property in which the respondent has, or is treated as having, interests.
Subsections (1) and (2) are subject to section 56.
(4)A profit forfeiture order is enforceable as an order made as a result of civil proceedings instituted by the Crown against the person to recover a debt due to it, and the maximum recoverable amount is recoverable from the respondent by the Official Assignee on behalf of the Crown as a debt due to the Crown.
[9] Section 6 defines “significant criminal activity” as an offence punishable by a maximum term of imprisonment of five years or more, or an offence from which at least $30,000 has been (directly or indirectly) acquired or derived. Section 6(2) then makes it clear that a person can be held to have undertaken significant criminal activity whether or not they have been charged or convicted of the offence and, indeed, whether or not they have been acquitted of an offence connected to the activity5 or had relevant convictions quashed.6
[10] It follows that the respondents may still have benefited from significant criminal activity, as defined by the CPRA, notwithstanding that the charges were dismissed under s 147 of the Criminal Procedure Act. Section 15 of the CPRA
5 Section 6(2)(b).
6 Section 6(2)(c).
underscores this point—no criminal proceedings are required before orders are made under the Act.
[11] Finally, the Commissioner must show that the respondents have “interests” in the property, which is defined in s 5 of the Act as follows:
interest, in relation to property of any kind (including, without limitation, restrained property or forfeited property), means—
(a)a legal or equitable estate or interest in the property; or
(b)a right, power, or privilege in connection with the property
[12] Any potential issues of the unlawful benefit’s quantum, or of any deductions for undue hardship, are obviated by the absence of evidence from the respondents.7
[13] In short, although Ms Taurerewa has consented to forfeiture and Mr Mihaka has not taken steps to defend it, s 55 of the CPRA requires me to be satisfied on the balance of probabilities that the respondents have unlawfully benefited from significant criminal activity (from which the $10,900 must be derived) and that they have interests in the cash.
Discussion
Significant criminal activity
[14] Possession of cannabis for supply constitutes significant criminal activity for the purposes of the CPRA, regardless of any conviction. Here, the uncontested evidence found during the search of a property rented in Mr Mihaka’s name establishes (on the balance of probabilities) that the respondents were engaged in that activity. I note in particular:
(a)the $10,340 cash concealed on Ms Taurerewa’s person on that day;
(b)1.1g of material resembling cannabis and two small clear plastic point bags found in Ms Taurerewa’s purse;
7 It is incumbent on the respondents to establish such matters: see s 53 and s 56 of the CPRA.
(c)a black tote bag with a small set of black scales and two zip lock bags, one with remnants of material resembling cannabis and another with 30g of material resembling cannabis;
(d)a cardboard box with documents relating to Mr Mihaka (including a passport photo of him) and $160.00 in twenty-dollar notes;
(e)a metal ammunition container with remnants of material resembling cannabis and multiple empty zip lock bags;
(f)a black jacket and backpack with Mr Mihaka’s driver’s licence, 4g of cannabis, and $400 in twenty-dollar notes; and
(g)a further 11.5g of material resembling cannabis found in the lounge.
[15]As well:
(a)the Police digital forensic unit extracted information from the microSD card from Ms Taurerewa’s phone, which contained several deleted images of cannabis plant material being grown and weighed into bags;
(b)a production order was sought over the phone’s data between 30 April 2020 and 30 May 2020. It revealed conversations between Ms Taurerewa and unknown contacts about the sale and purchase of cannabis (with codewords and phrases understood by Police, such as “full”, “pineapple express”, and “indoor”);8 and
(c)fingerprints matching Mr Mihaka’s were found on zip lock bags containing material resembling cannabis.
8 “Full” is a term used to mean an ounce of cannabis. “Pineapple express” is a common code name for cannabis. And “indoor” is a term commonly used to describe cannabis grown indoors.
Unlawful benefit
[16] I am satisfied that the $10,900 seized here is unexplained, for the reasons that follow.9
[17] First, the evidence shows that Ms Taurerewa’s gross income over the last seven years was $93,958.56, comprised largely of benefit receipts together with $1,704 of wage payments in 2017. She told Police that she had been working at Kilbirnie KFC, but that is inconsistent with her declared income. Ms Taurerewa’s various explanations for the cash variously included:
(a)that the cash was from her own savings combined with proceeds from sale of an unidentified vehicle;
(b)that most of it had been received from her father, who had received the COVID-19 wage subsidy payment; and
(c)that $7,000 was from her father (sourced from the wage subsidy),
$1,800 was from the sale of a Toyota van registered in her name, and the balance comprised her benefit savings over the COVID-19 lockdown period.
[18] Upon further inquiry, Police found that Ms Taurerewa’s father had received the COVID-19 wage subsidy on 8 April 2020 and then made nine different withdrawals from ATMs, totalling $4,670. Not only is this significantly less than the sum referred to by Ms Taurerewa, but I accept the Commissioner’s submission that the nature of the withdrawals (location, size) suggests the money was withdrawn for her father’s personal use. He received no other income between 8 April 2020 and 20 April 2020 that could have been used to cover his day-to-day living expenses.
[19] Police also confirmed with the New Zealand Transport Authority on 14 April 2020 that Ms Taurerewa had never had a vehicle registered in her name.
9 In Commissioner of Police v de Wys [2016] NZCA 634 at [71], the Court of Appeal noted that unexplained large cash sums “will tend to support an inference that the relevant cash has been sourced from illegitimate or criminal activity”.
Ms Taurerewa provided no specific details to Police about the vehicle or its sale, including to whom it was purportedly sold. Police confirmed that Ms Taurerewa has not sold a vehicle on TradeMe in the past.
[20] Secondly, Ms Taurerewa’s bank records disclosed no cash withdrawals made from her account between 28 March and 29 May 2020 that could explain the amounts of cash Ms Taurerewa claimed she had saved.
[21] Thirdly, Mr Mihaka’s declared income over the last seven years is $27,075.59, comprised mainly of benefit payments together with $3,168 wages. Although he told Police that the money found in the cardboard box and jacket (together $560) was benefit money, I accept that, on the balance of probabilities, this amount was the proceeds of cannabis dealing.
Interest
[22] Ms Taurerewa consistently claimed an interest in the $10,340 found on her person during the search; this is a position that she has maintained in her various explanations to Police. Mr Mihaka told Police on 17 March 2021 that the remaining
$560 cash was money from his benefit, withdrawn from an ATM. There is also further evidence supporting him having an interest in it, namely that:
(a)the $160 cash in the cardboard box was found together with documents relating to, and a passport photo of, Mr Mihaka; and
(b)the $400 cash was found in the black jacket lying on top of a black backpack, which contained Mr Mihaka’s driver’s licence.
Conclusion
[23] In light of the uncontested Police evidence, I am satisfied that, on the balance of probabilities, the respondents were engaged in and unlawfully benefited from the sale and supply of cannabis. There is no plausible alternative explanation available to me. I am also satisfied that the respondents have an interest in the $10,900 seized.
The only available inference is that the cash was obtained from the sale of supply of cannabis.
[24] No evidence supporting any claim of undue hardship has been filed.10 There are also no issues with the maximum recoverable amount.11
[25] For the above reasons, I grant the Commissioner’s profit forfeiture application, in the terms sought.
[26] In accordance with the directions of Churchman J, the order is not to be sealed for a period of 15 working days after service of this judgment on Mr Mihaka.
Rebecca Ellis J
Solicitors:
Luke, Cunningham Clere, Wellington for Applicant
10 CPRA, s 51.
11 Sections 53 and 54.
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