Commissioner of Police v Te Aho

[2024] NZHC 2405

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-043

[2024] NZHC 2405

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 43, 44 and 49

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JOHN WHARE MAKO TE AHO

Respondent

Hearing:	26 August 2024
Counsel:	M J M Mitchell for Applicant M Phelps for Respondent
Judgment:	26 August 2024

JUDGMENT OF GRAU J

[Application for forfeiture order]

[1]    On 29 November 2023, Gwyn J granted an on-notice restraining order in relation to a sum of cash totalling $16,510 located on the respondent’s person when he was arrested in February 2023 (the Property).1 Her Honour was satisfied there were reasonable ground to believe the property was tainted property as defined in s 5 of the Criminal Proceeds (Recovery) Act 2009 (the Act) when there was a clear disjunct between Mr Te Aho’s declared income and the number and size of the cash deposits to his bank account in the four years prior to his arrest, there was no alternative explanation for the cash seized by Police, and Mr Te Aho had not sought its return.2

1      Commissioner of Police v Te Aho [2023] NZHC 3435.

2      At [30]

COMMISSIONER OF POLICE v TE AHO [2024] NZHC 2405 [26 August 2024]

Justice Gwyn was also satisfied that Mr Te Aho had unlawfully benefitted from significant criminal activity.3

[2]    On 11 June 2024, the Commissioner of Police (the Commissioner) applied for an asset forfeiture order in respect of the Property, pursuant to ss 43, 44, and 49 of the Act.

[3]    At the last call of this matter in the Criminal Proceeds List, on 1 July 2024, Churchman J granted an adjournment by consent as Mr Phelps had only recently been instructed by the respondent.4 When the matter was called in the Criminal Proceeds List again today, Mr Phelps advised that he has confirmed instructions and would not be contesting the Commissioner’s application for forfeiture.

[4]    Notwithstanding the lack of opposition, I must be satisfied on the balance of probability that the property over which the order is sought is “tainted property” as defined in s 5 of the Act. If satisfied of that, I must make an order for asset forfeiture.5

[5]    The Commissioner seeks the order on the basis that the Property is tainted because it was directly or indirectly derived from significant criminal activity, namely, methamphetamine dealing.

[6]    I have read the affidavits of Detective Constable Ramsay, Detective Kennard, and Constable Smart filed in support of the application.

[7]    I reproduce here the helpful summary in Gwyn J’s decision granting the restraining order:6

[9]        On Thursday 23 February 2023 Mr Te Aho and an associate, Michael Roser, were arrested in Bayview, Napier, as they attempted to break down the gate to Ross Cooper’s home address. [Mr Te Aho] was the driver of the vehicle, which was registered to Mr Roser. Mr Roser was a passenger in the vehicle.

[10]      [Mr Te Aho] was found in possession of $16,510, comprising cash amounts of $15,660 and $850 located on his person on 23 February 2023 …

[11]      A search of Mr Te Aho’s vehicle located a broken plastic container between the driver’s seat and door. Trace amounts of a white crystalline

3 At [37].

4      Commissioner of Police v Te Aho HC Wellington CIV-2023-441-43, 1 July 2024 (Minute of Churchman J).

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

6      Commissioner of Police v Te Aho, above n 1.

material suspected to be methamphetamine were found on the container and a subsequent examination confirmed the presence of methamphetamine.

[12]      Mr Cooper, whose house it was, was searched by Police and found to be in possession of firearms and approximately 20g of methamphetamine. He has pleaded guilty to the possession of methamphetamine. Mr Roser was searched and found in possession of methamphetamine. He admitted to supplying methamphetamine. Mr Roser was charged with supplying methamphetamine and has since pleaded guilty to those charges and is awaiting sentencing.

[13]      Mr Te Aho was arrested and initially remanded in custody on one charge of wilful damage and one charge of being unlawfully in an enclosed yard or area, in respect of the attempt to break down the fence on 23 February 2023, before being released on court bail conditions on 15 March 2023.

[14]      On 3 May 2023 the Napier District Court convicted Mr Te Aho of both charges. He was not charged with methamphetamine offences.

[15]      On 22 March 2023 Police located a suspicious vehicle in a driveway in Carnell Street, Napier. [Mr Te Aho] was in the driver’s seat of the vehicle. The other occupant was Anthony Pearce to whom the vehicle was registered. Mr Pearce got out of the vehicle and ran into a nearby block of flats. [Mr Te Aho] abruptly reversed the vehicle and then sped forward towards the two attending constables, who had to take evasive action to avoid being hit.

[16]      Constable Kennard’s affidavit sets out his belief that Mr Pearce is the same person who communicated with Mr Roser about purchasing methamphetamine in February 2023.

[17]      Constable Kennard believed that Police disturbed [Mr Te Aho] and Mr Pearce as they were involved in a drug deal, which explains Mr Pearce fleeing the vehicle and [Mr Te Aho’s] dangerous driving.

[18]      On the basis of the information set out above, Constable Kennard believes that [Mr Te Aho] has committed the following offence:

(a)Supplying the Class A controlled drug methamphetamine, pursuant to s 6(1)(c) of the Misuse of Drugs Act 1975. The maximum penalty for the offence is life imprisonment.

[19]      Accordingly, Constable Kennard says there are reasonable grounds to believe that:

(a)[Mr Te Aho] has been involved in “significant criminal activity” as defined in s 6 of the Act;

(b)the property sought to be restrained has been directly or indirectly derived from significant criminal activity; and

(c)the property is tainted property.

[20]      In addition, Constable Kennard refers to an analysis of [Mr Te Aho’s] banking records for the period 1 April 2016 until 1 April 2023.

[21]      That analysis shows that, between 20 June 2019 and 23 March 2023, there were 85 separate cash ATM deposits into [Mr Te Aho’s] bank account with the ASB Bank Ltd, totalling $117,115.

[22]      Constable Kennard also obtained Inland Revenue Department reports for [Mr Te Aho’s] declared income over the past six years. During the periods when Mr Te Aho was not in prison, he received a job seeker benefit from the Ministry of Social Development. He was also briefly employed in 2018 when he declared an income of $2,458.

[23]Mr Te Aho’s overall total declared income for the six year period was

$62,567.72, an average yearly declared income of $10,427.53.

[8]    In September 2023, Mr Te Aho was arrested for failing to stop for Police. He was found with another large quantity of cash (which is not the subject of this application), approximately 1.7 g of methamphetamine, and a set of scales. On 1 May 2024, Police executed a search warrant at Mr Te Aho’s address and arrested him in possession of approximately 58 g of methamphetamine. Detective Kennard’s affidavit filed for the purposes of the current application has updated Mr Te Aho’s overall declared income for a seven-year period to $80,521.43, an average yearly declared income of $11,503.06.

[9]    Mr Te Aho has not made any claim to the property, nor has any other person. As above, the application for forfeiture is not opposed.

[10]   On the basis of the evidence filed in support of the application, I am satisfied on the balance of probabilities that the property is tainted property as defined in the Act. I grant the type 1 assets forfeiture order sought in the terms set out in the Commissioner’s application of 11 June 2024.

Grau J

Solicitors:
Crown Solicitor, Napier