Commissioner of Police v Wood

[2021] NZHC 310

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000608

[2021] NZHC 310

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

STEVEN JAMES WOOD

Respondent

Hearing:

24 February 2021

Appearances:

C C White for the Applicant

No appearance by or on behalf of the Respondent

Judgment:

26 February 2021

JUDGMENT OF NATION J

[1]    On 30 April 2020, during the COVID-19 lockdown, the Police stopped a car travelling between Richmond and Motueka. The respondent (Mr Wood) was the driver of the car. There were two other passengers. In the car the Police found various cell phones, a baseball bat and a Tribesmen gang patch on the front seat. In a bag in the boot of the car, they found 12 bundles of cash to a total value of $56,370. The Commissioner has applied for an asset forfeiture order as to that cash pursuant to ss 43 to 51 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]    Mr Wood was served with a copy of the Commissioner’s application and the affidavits filed in support of the application on 11 December 2020. He was then advised as to when the proceedings would be called in Court. He did not appear at the first call of the matter on 9 February 2021. Mr Wood had not filed any notice of opposition to the application.

POLICE v WOOD [2021] NZHC 310 [26 February 2021]

[3]    The proceedings were set down for a formal proof hearing on 24 February 2021 at 10.00 am. Counsel for the Commissioner appeared at that time, with Detective Bull in attendance to answer any questions if necessary. Detective Bull advised the Court that Mr Wood had been in the Law Courts building just prior to the case being called. He did not however appear in Court when the case was called, despite the case being announced over the building speaker system on two occasions and his being directed to come to the Court in connection with the case. The hearing thus proceeded on a formal proof basis.

[4]    For the Commissioner to obtain an assets forfeiture order, the High Court must be satisfied on the balance of probabilities that the cash is tainted property.1 Here, the Commissioner says the cash is tainted property as defined in s 5 of the Act as having been acquired from significant criminal activity, namely the supply of methamphetamine.

[5]    I am satisfied, on the balance of probabilities, that the cash was acquired from such criminal activity.

[6]    Mr Wood was the driver of the vehicle when it was stopped. The vehicle was registered in the name of his mother. Karen Chappell was in the front passenger seat. Scott Radford was in the rear passenger seat.

[7]    When spoken to by the Police, Mr Radford declined to be interviewed. After being given her New Zealand Bill of Rights Act 1990 (NZBORA) warning, Ms Chappell said she knew nothing about the baseball bat or cash found in the vehicle. Mr Wood said the baseball bat found behind the driver’s seat was his to take with his nephew to the park to play ball. When asked about the cash, Mr Wood told Police he was buying a boat but refused to answer any further questions about this.

[8]    I accept the evidence of the Police that, commonly, people involved in illicit drug dealing do so while armed in some way for protection, for example being in possession of a baseball bat.

1      Criminal Proceeds (Recovery) Act 2009, s 50(1).

[9]    On 4 May 2020, Mr Wood contacted the Police regarding the return of the cash. He told the Police he “did not believe in banks so keeps all his money as cash in his vehicle”.

[10]   The Police subsequently obtained information as to how Mr Wood had used various bank accounts. That evidence showed how Mr Wood used an account with the ANZ bank for day to day banking. The Police also obtained evidence that Mr Wood regularly used an account with the New Zealand Credit Union Baywide, trading as New Zealand Credit Union South.

[11]   Mr Wood has convictions for cannabis cultivation and possession of cannabis for supply. He is a member of the Tribesmen gang.  There are proceedings pursuant to the Act regarding other Tribesmen members who have been found in possession of substantial quantities of cash allegedly obtained from dealing in illicit drugs. There was no challenge to Detective Bull’s evidence that, in his experience, drug dealing is generally carried out in cash and the presence here of a large sum of cash was consistent with the sale of controlled drugs.

[12]   Mr Wood was provided with an opportunity to explain how he came to be in possession of the cash through being served with an examination order under s 107 of the Act requiring him to attend the Christchurch Central Police Station. He failed to do so on a number of occasions and refused to answer questions on one occasion when he did turn up. His reluctance to attend the examination and provide a legitimate explanation for the source of the cash is consistent with his being incapable of doing so.

[13]   At the time of her arrest on 30 April 2020, Ms Chappell was subject to bail conditions relating to charges of sale and supply of methamphetamine and possession of LSD, ecstasy and methamphetamine. She subsequently pleaded guilty to the charges for which she was on bail.

[14]   One of the items seized from the car on 30 April 2020 was a cell phone used by Ms Chappell. Based on messages extracted from that cell phone, Ms Chappell was charged with offering to supply and supplying methamphetamine and possession of

butanediol, a class B controlled drug. She subsequently pleaded guilty to the charges based on those messages.

[15]   There was evidence of SMS conversations between Ms Chappell and Mr Wood. These include a message sent by Mr Wood to Ms Chappell on 22 April 2020 stating “Ive gotta kg of hyp can u sort something for it”. Ms Chappell replied with a message which indicated she was responding positively to Mr Wood’s request.

[16]   On that cell phone, there was messaging from 20 April 2020 indicating that two other people were messaging Ms Chappell in an attempt to obtain one or two ounces of methamphetamine, the cost of which Ms Chappell believed would be between $10,000 and $12,000 per ounce. Between 25 and 30 April 2020, there was a further exchanging of messages consistent with Ms Chappell offering to supply methamphetamine at $750 for a gram and the other person wanting half an ounce of methamphetamine that he would pay $6,000 for.

[17]   On 30 April 2020, there was messaging between Mr Wood and Ms Chappell consistent with their arranging to meet but their being alert to and concerned about Police activity at the time.

[18]   There was evidence from which the Police were able to attribute another cell phone to Mr Radford. From that cell phone, the Police extracted messages between Mr Radford and Mr Wood between 22 April 2020 and 30 April 2020, consistent with Mr Radford having $1,000 for Mr Wood in return for which Mr Radford was to receive illicit drugs.

[19]   I accept the evidence from Detective Gaskell, who analysed the messaging on relevant cell phones, that the messaging was consistent with people talking in code and it is common for people to talk in code when discussing illicit drugs.

[20]   Analysis of the messaging on cell phones located in the vehicle establishes that Mr Wood, Mr Radford and Ms Chappell were associates and had made arrangements to meet. Ms Chappell was supplying methamphetamine in large quantities at the relevant time.

[21]   The $56,370 in cash was packaged in separate bundles consistent with individual payments from customers who had purchased drugs. There is no alternative explanation before the Court as to why the cash was packaged in bundles.

[22]   Mr Wood’s total declared earnings from 2018 to 2020, before tax, and from benefits from 2019 to 2020 totalled $70,288.74. Information from the household economic survey 2019 compiled by Statistics New Zealand recorded, on average, a single person’s living expenditure per year was $33,540.

[23]   I am satisfied the cash found in the vehicle, which Mr Wood has claimed was his, could not have been legitimately derived from income and benefits.

[24]   The Court is accordingly satisfied on the balance of probabilities that the cash found in a bag in the boot of the car was acquired as a result of, or derived directly or indirectly from, the supply of methamphetamine. The supply of methamphetamine is significant criminal activity, being an offence punishable by a maximum term of imprisonment of five years or more.2 It is also significant criminal activity because the evidence establishes that property, the cash of $56,370, is more than $30,000 directly or indirectly acquired or derived from the supply of methamphetamine.3

[25]Section 50(1) of the Act states:

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.

[26]   Section 50(1) is subject to s 51 which would permit the Court to decline an assets forfeiture order because of the undue hardship that might result from such an order. There was no application for that proviso to be applied in this case.

2      Section 6(1)(a).

3      Section 6(1)(b).

[27]   Mr Wood had claimed an interest in the cash so the limitation on the making of an assets forfeiture order referred to in s 50(4), where no person has claimed an interest in the property, does not apply.

[28]   The Court accordingly makes an order that the $56,370 in cash found in the car driven by Mr Wood on 30 April 2020 vests in the Crown absolutely and is to be in the Official Assignee’s custody and control.

Solicitors:

Crown Solicitor, Christchurch.

Copy to:
Steven Wood, Respondent.