Commissioner of Police v Woodrow
[2024] NZHC 3936
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2022-425-000060
[2024] NZHC 3936
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
COREY ROBIN WOODROW
First Respondent
AND
VERONICA MARY COPE
Second Respondent
Hearing: 4 June 2024 Appearances:
S N McKenzie and S K Gibb for the Applicant
Judgment:
19 December 2024
JUDGMENT (REDACTED) OF PRESTON J
This judgment was delivered by me on 19 December 2024 at 4.00 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date……………
COMMISSIONER OF POLICE v WOODROW [2024] NZHC 3936 [19 December 2024]
Introduction
[1] Corey Robin Woodrow, the first respondent, pleaded guilty to cultivation of cannabis and other charges relating to selling, or possessing for supply, cannabis.
[2] Mr Woodrow’s cannabis cultivation took place in the woodshed of the respondents’ property at 766 Gore-Mataura Highway (the property). Mr Woodrow has long since been dealt with on the criminal charges. He was sentenced on 8 March 2022 to nine months’ home detention.
[3] The Commissioner of Police (Commissioner) now seeks a profit forfeiture order in relation to the proceeds of Mr Woodrow’s significant criminal activity, to be realised from the property.
[4] Veronica Mary Cope, the second respondent, is Mr Woodrow’s partner. She co-owns the property with him. Ms Cope was not charged with any criminal offending, but the Commissioner seeks a mirror profit forfeiture order against her on the basis she too benefitted from Mr Woodrow’s cannabis dealing.
Factual background
[5] On 27 November 2020, police conducting a routine checkpoint in the Lumsden area stopped [redacted] in his car. Two officers invoked a warrantless search after noting a strong smell of cannabis. They found two chilly bins containing high quality cannabis head material packaged in large glass jars. [Redacted] told police he had picked up the cannabis in Gore, without disclosing where or whom from.
[6] Text messages viewed on [redacted]’s phone lead police to identify Mr Woodrow as his supplier. The most recent text conversation between them, which referred to two “cubes” of “firewood”, a code name for cannabis, had concluded just two hours before police randomly stopped [redacted].
[7] In the early hours of the following morning, police executed a search warrant at the property. They found a commercial scale cannabis cultivation in the woolshed and a substantial quantity of dried and drying cannabis plant.
[8] The cannabis cultivation was a staged operation, allowing for continuous supply. It included a drying room, cannabis plants growing in various stages from cuttings and seedlings and a growing room with 25 cannabis plants, all but one of which were twinned in containers as Mr Woodrow had found this promoted better growth. There were also 17 recently cloned cannabis plants, and 33 other cannabis plants variously potted up at different growing stages.
[9] The set up included multiple fans together with an extractor system, LED heat lamps, thermometers/humidity gauges, fertilisers and electronic timers. Significant time and money had been invested in acquiring equipment and modifying the cultivation using efficient methods to maximise productivity.
[10] Police also found three pounds 5.8 ounces of dried cannabis head in four plastic bags, two of which each contained exactly one pound. These two bags were tied together consistent with having been weighed for supply. The bagged cannabis was near a set of digital scales. An additional quantity of cannabis head still on the stem was being dried.
[11] As well, police located $10,000 cash in denominations of $50 and $20 in Mr Woodrow’s bedside drawer.
[12] Police seized and analysed Mr Woodrow’s text messaging data. This disclosed Mr Woodrow had been selling cannabis between March 2019 and November 2020. The earliest offer to sell in that period was on 11 March 2019 when Mr Woodrow texted an associate at 2.39 am offering “All trimmed and weighed up 2 pound for sale”.
[13] Mr Woodrow pleaded guilty and was convicted of cultivation of cannabis, possession of cannabis plant for supply and three charges of selling or offering to sell cannabis plant.
Procedural background
[14]Some procedural background is necessary.
[15] The Commissioner’s application for profit forfeiture orders was brought following earlier restraint of the property.1
[16] In the restraint proceedings, the respondents respectively swore affidavits (response affidavits).2 The affidavits responded to the initial affidavit in support of restraint of Rochelle Fitzgerald, an authorised officer of the Police Asset Recovery Unit (ARU). The response affidavits declared they were filed also “in anticipation of further applications by the Commissioner”.3
[17] Mr Woodrow and Ms Cope were represented by counsel, Mr Eagles, at that time. Ms Cope also filed through counsel notice of application under s 61 of the Criminal Proceeds (Recovery) Act 2009 (Act) seeking relief from civil forfeiture on grounds that she has not been convicted of cultivation of cannabis and has an interest in the property. In an affidavit filed in support, Ms Cope explains and annexes a copy of an order she obtained in the Family Court at Invercargill vesting in her a one-half share of the property.
[18] Ms Cope, however, is named as a respondent to the Commissioner’s application for profit forfeiture orders. She cannot rely upon the protection of s 61 of the Act; that provision applying only to persons not named as respondents in restraining or forfeiture applications under the Act.
[19] On 25 October 2023, the respondents served notice of their change of address for service and, the following day, filed a signed joint document opposing the Commissioner’s then application to extend the restraining orders over the property. The respondents recorded they:
aDon’t consent to the proceedings
1 Commissioner of Police v Woodrow [2023] NZHC 3336 [23 November 2023]. An earlier order of the Court restraining the real property and the $10,000 cash (and interest) ceased on 28 November 2020 and a 2017 Ford Ranger vehicle registered to Mr Woodrow was rescinded as to the cash and is not continued as to the Ford Ranger vehicle.
2 Respectively dated 21 November 2022 in response to the on notice application to restrain made on 16 September 2022.
3 Ms Fitzgerald’s initial affidavit was sworn in support of the Commissioner’s initial without notice restraint application filed on 7 September 2022, and relied upon by the Commissioner also in support of the on notice application.
bDon’t consent to be surety for the defendant
cDon’t consent to doing business with the Prosecutor
dWe reserve our rights and waive all benefits and privileges and we reply to this only under duress, protest and a threats of menace
[20] The same day, the respondents notified the court they were representing themselves.
[21] On 20 February 2024, the respondents each filed two documents, entitled respectively a “NOTICE OF LIABILITY And Breach of Contract and Miscarriage of Justice” and “My Affidavit of Truth, Denial of Consent, Claim of Right and the Restoration of my ‘common law on the land unalienable rights” The Law of Agent and Principle applies, therefore Service upon One is Service upon many.” These documents include the handwritten name of the respective respondent, signing him or herself off with the declaration “I am, who I am, A Living Being on the Land”.
[22] Prior to the hearing I issued a minute directing that any further evidence and submissions be filed by the parties.
[23] On 30 May 2024, the respondents subsequently filed a further document entitled “PREAMBLE” and a document entitled, again, “My Affidavit of Truth, Denial of Consent, Claim of Right and The Restoration of my “common law on the land unalienable rights” The Law of Agent and Principle applies, therefore Service upon One is Service upon many.”
[24] In each document, Mr Woodrow and Ms Cope refer to themselves as “legal fiction names” and adopt the references “:Corey-robin: Woodrow./ :Veronica-mary: Cope.”
[25]I set out in part the content of the PREAMBLE document:
Date: 30 May 2024
In the matter of COREY ROBIN WOODROW / VERONICA MARY COPE the LEGAL FICTION NAMES.
This preamble (in your words submission) is made by the authorised agents for the names,
:Corey-robin: Woodrow.
:Veronica-mary: Cope.
These living beings on the land are responding to the minutes by Honourable Justice Preston.
[1] We :Corey-robin: Woodrow. / :Veronica-mary: Cope. as the authorized agents for COREY ROBIN WOODROW / VERONICA MARY COOPE don’t consent to the hearing which is in commerce and fraud scheduled for the 4th June 2024.
[2] We don’t use or recognize nor consent to the use of titles as titles are only given to slaves. So who is Mr Woodrow and who is Ms Cope? See our unrebutted affidavits proving we are not Crown owned slaves, we are living beings on the land.
[3] Is it not true that Roger Eagles the PERSON Acting as our Solicitor duly filed the application for relief. This application for relief was filed in the name of the Legal Fiction which I’m not?
[4] We, :Corey-robin: Woodrow. / :Veronica-mary: Cope. filed rebuttable affidavits titled “My Affidavit of truth, Denial of consent, Claim of right and the Restoration of my “common law on the land unalienable rights” See attachment with signature courier signed proof of delivery received copies of our Affidavits of truth to Crown Ministers which were unrebutted.
~ We aren’t Legal Fiction slaves therefore no titles are recognised as we’re living beings on the land. Reference the contents of our rebuttable affidavits that have now gone unrebutted. Maxim of law: An unrebutted affidavit stands as truth in law, an unrebutted affidavit stands as truth in commerce and can’t be denied. No one has the right to overturn an unrebutted affidavit and if they do they can be held accountable.
~ For / on the record we :Corey-robin: Woodrow. / :Veronica-mary: Cope. The aurhorized agents for the Legal Fiction names COREY ROBIN WOODROW
/ VERONICA MARY COPE any variations of our name ask is Honourable Justice Preston administering the Cestue Que Vie Trust account for the Legal Fiction names COREY ROBIN WOODROW / VERONICA MARY COOPE
without our consent in the case CIV-2022-425-60 between the applicant, Police Commissioner and the Legal Fiction names of COREY ROBIN WOODROW/VERONICA MARY COPE?
~ Is it not true that if your Honourable Justice Preston administer the trust account you will be committing fraud and is not fraud a criminal offence
~ Is it not true by administering the trust accounts without our consent Honourable Justice Preston are committing premediated (sic) fraud?
…
[26] The language of the preamble document and the nature and content of all of the documents filed by the respondents after they began representing themselves fit the “sovereign being” or “sovereign citizen” model or belief system. The Court of Appeal discussed the sovereign citizen movement, an ideology that first emerged in the United States in the 1970’s, in Warahi v Chief Executive of the Department of Corrections.4 Persons following this ideology do not believe that they are subject to the jurisdiction of the State (including legislation enacted by Parliament or decisions made by the courts). The belief is based—at least in part—on the dual persona theory. That is, the proposition that individuals have two personas, one of flesh and blood and the other a separate legal or “corporate” personality that is subject to the jurisdiction of the State.5
[27] As the Court of Appeal recorded in Warahi, arguments about a person’s legal personality including the “dual persona” theory associated with the Sovereign Citizen movement are raised in a variety of legal contexts.6 Arguments along such lines have however been consistently rejected by the courts as legally untenable.7
The hearing
[28] When the hearing commenced on 4 June 2024, Mr Woodrow and Ms Cope were present in the back of the courtroom but did not initially respond when the case was called to make themselves known. During the initial 20 minutes of the hearing, both Mr Woodrow and Ms Cope made plain by addressing me from the gallery that they maintained the position set out in their affidavits and other documents filed as “sovereign citizens” that they did not recognise the Court’s jurisdiction. They disclaimed that they were Mr Woodrow or Ms Cope and referred to some of the documents they had filed as: their “rebuttable affidavits”.
4 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105.
5 At [9].
6 At [9].
7 See, Warren v Chief Executive of the Department of Corrections [2017] NZSC 20; Rangitaawa v Chief Executive of the Department of Corrections [2013] NZCA 2; Martin v Chief Executive of the Department of Corrections [2016] NZHC 2811 at [20]; Wallace v Chief Executive of the Department of Corrections [2017] NZSC 1 at [4]–[5]; and Warahi v Department of Corrections [2020] NZHC 2917, upheld on appeal in Warahi v Department of Corrections [2020] NZCA 587.
[29] Although I explained the purpose of the hearing—to hear and determine the Commissioner of Police’s application for profit forfeiture orders, and their right to participate in the hearing—the respondents continued to disclaim their identities and to declare they do not recognise the Court’s jurisdiction. In speaking to me, both respondents used language consistent with all those documents filed from 20 February and 30 May 2024, some of which are outlined above. It was apparent that neither respondent wished to participate in the hearing and that each continued to refute the jurisdiction of the Court.
[30] After a brief adjournment, the respondents continued to interrupt proceedings and disrupt the Court by calling out as I delivered an oral judgment. In the course of the judgment I explained (for a second time) the nature of the day’s business, that is that I would be hearing an opening address, if counsel elected, followed by evidence from the two witnesses for the Commissioner. Further, that each respondent would have opportunity to cross-examine the Commissioner’s witnesses and would then have opportunity to go into the witness box to give evidence in response to the Commissioner’s case. The respondents by their continued conduct made plain they did not intend to participate in the hearing.
[31]I ruled the hearing was to proceed on a formal proof basis, accordingly.
Commissioner’s case
[32]The profit forfeiture order against each respondent is sought in the sum of
$150,000.
[33] The Commissioner contends both respondents have profited from the sale of cannabis and each is liable for the unlawful benefit received from the significant criminal activity of cultivation and sale of cannabis. His case relies upon the evidence adduced in affidavits from Ms Fitzgerald, and an affidavit and further statement from Detective Alun Griffiths, an officer experienced in the detection and investigation of drug offending.
[34] Ms Fitzgerald analysed Mr Woodrow and Ms Cope’s bank accounts and investigated the pair’s cash spending between June 2019 and November 2020. During
that period, police identified cash spending outside of bank accounts and cash deposits to both Mr Woodrow’s ANZ and Ms Cope’s SBS bank accounts in mid 2019 and in mid to late 2020. Conversely, police identified minimal ATM or branch cash withdrawals from the bank accounts of Mr Woodrow and Ms Cope during that period.
[35] The Commissioner contends that Mr Woodrow’s main cannabis grow was set up and functioning as from January or February 2020 as a multi-stage grow which was capable of being regenerated every three months. Whereas there is support in the text messages to suggest some cultivation and sale or supply of cannabis between approximately March to July 2019, the Commissioner considers that Mr Woodrow stopped cultivation or supply for a period after an associate was charged with cannabis cultivation on 18 September 2019.
[36] The Commissioner also notes that Mr Woodrow, upon the November 2020 search, was in possession of seven pounds of dried cannabis in addition to the staged grow with expectation of producing five ounces per plant on 25 plants, adopting Mr Woodrow’s estimation in his affidavit sworn on 21 November 2022 in response to the Commissioner’s case.
[37] The Commissioner further contends Ms Cope assisted Mr Woodrow’s criminal activities, including by depositing cash amounts principally in $20 and $50 denominations. Further, that text messages between the respondents a week before the search warrant show Ms Cope was tending the cannabis plants at Mr Woodrow’s direction. Alternatively, Ms McKenzie for the Commissioner submits Ms Cope was at best wilfully blind.
[38]Indications of the nature and extent of the illicit profits alleged include:
(a)Text messages between Mr Woodrow and an associate, [redacted], in early 2020, indicating that Mr Woodrow was operating an established multi-stage cannabis grow at that time. In an exchange on 25 February 2020, [redacted] asked, “got any ready”, to which Mr Woodrow replied, “Just got rid of last next ready in 3 weeks”.
(b)Four sales to [redacted], in July, September, October and on 27 November 2020. Mr Woodrow admitted selling [redacted] two pound amounts of cannabis on each occasion. Although he claimed in a subsequent interview with Ms Fitzgerald that the September sale was of cannabis left over from the July 2020 grow, Ms Fitzgerald identified a text on 17 September 2020 in which Mr Woodrow told [redacted], arranging the delivery, “Tuesday dude Hope that’s OK just want to make sure it’s dryed and cured properly”. Mr Woodrow then conceded he had in fact cultivated a fresh cannabis grow as at September 2020.
(c)Mr Woodrow told police he “had heard” cannabis could be sold for
$5,000 per pound. The Commissioner contends this was his going rate and the $10,000 cash located in the search on 28 November 2020 supports this, being the proceeds of the sale just concluded the evening before to [redacted].
(d)Accordingly, the Commissioner contends Mr Woodrow profited from selling cannabis to [redacted] in the sum of $40,000 across the four sales during this period, including the $10,000 seized under the search warrant on 28 November 2020.
(e)Between June 2019 and September 2020, a total of $26,250 was deposited by the respondents into various of their bank accounts, including Visa accounts. The deposits were spread across 18 separate transactions of varying amounts and denominations, predominantly
$50 notes and, less frequently but still consistently, $20 notes.
(f)Cash deposits in these denominations were frequently made via ATM machines in quick succession. Police confirmed Ms Cope’s signature upon deposit slips associated with various of the cash deposits. For
example, between April 2020 and September 2020 Ms Cope made eight deposits at ATM machines, as follows:8
(i)3 April 2020: two deposits at 4.33 pm and 4.34 pm, $100 and
$2,200, comprising 42 $50 notes and 10 $20 notes across both transactions.
(ii)19 July 2020: four deposits between 12.06 pm and 12.09 pm of
$700, $950, $1,050 and $1,000. The vast majority of the cash comprised $50 notes.
(iii)23 September 2020: two deposits between 9.46 am and 9.48 am of $1,150 and $1,850, the majority in $50 notes.
(g)Similar patterns were noted by police in relation to deposits Mr Woodrow made, for example two deposits by ATM at 7.30 am and
7.32 am on 4 June 2019, totalling $4,500 across two payments: $2,500 entirely in $50 notes and $2,000 paid into a different account attributed to Mr Woodrow, comprised of four $100 notes and 32 $50 notes.
(h)Text messaging between Mr Woodrow and three associates including [redacted], discussing cannabis, runs consistently through 2020.
(i)Throughout the same 15-month period the respondents made purchases of household items—including larger items such as a washing machine and an induction hob—with cash. In total, Ms Fitzgerald’s analysis indicates cash totalling $45,143.30 was banked or spent by the respondents during the period June 2019 to September 2020.
(j)The deposits by the respondents into their various bank accounts and spending of significant cash sums did not begin until mid 2019,
8 Ms Cope made a further deposit of $2,000 cash comprised of 40 $50 notes during this period, on 22 April 2020. It is unclear whether this was by ATM or over the counter.
corresponding with the time that it is likely Mr Woodrow’s cannabis operation was underway and returning significant profit.
[39]It is the Commissioner’s case that the quantum of unlawful benefit was at least
$150,000, for the following reasons:
(a)The evidence is the main cannabis grow was established and functioning from January or February 2020.
(b)Numerous texts during 2020 between Mr Woodrow and four associates including [redacted] expressly or implicitly involve cannabis or cannabis plants including by coded reference to “firewood”.
(c)The four sales to [redacted] in the five-month period of July–November 2021 totalling seven to eight pounds of cannabis plant were valued between $35,000 and $40,000.
(d)At the end of that period, Mr Woodrow was in possession of a further seven pounds of cannabis—valued at $35,000 if sold at $5,000 per pound—of dried cannabis. In addition, the staged grow which was interrupted by police evidenced capacity to produce up to five ounces per plant on the 25 plants maturing, based on Mr Woodrow’s own estimate of yield.
(e)Accordingly, the minimum three grows between early 2020 and November 2020, upon that yield—250 ounces per grow as estimated by Mr Woodrow—would realise between $50,000 and $80,000 each depending on quality and quantum of the cannabis sold.
(f)Adopting a conversative estimate of 200 ounces per grow, the profit range would be:
(i)On a high end valuation of the 600 ounces at $400 per ounce,
$240,000.
(ii)On a low end valuation basis of the 600 ounces at $250 per ounce, $150,000.
The Commissioner adopts the low end calculation.
Respondents’ position
[41] As outlined, the respondents elected not to participate in the hearing which therefore proceeded by way of formal proof.
[42] The notice of opposition filed by Mr Woodrow and Ms Cope on 21 July 2023 recorded:
(a)Mr Woodrow did not object to the making of the order, but did object to its quantum, claiming that $150,000 exceeds any benefit which he obtained, while accepting there was some benefit obtained by him; and
(b)Ms Cope objected to any order against her.
[43] At that time, Ms Cope also notified her intention to seek relief from forfeiture under s 61 of the Act, which application was subsequently made but, as noted at [18] above, she has no standing to do so.
[44] It is apparent that the respondents’ position conveyed in the documents they have filed since they elected to conduct their defence expresses a wish to resile from any previous concession.9 For completeness I note that in their preamble document the respondents criticised the evidence of Mr Griffiths.10 They also expressly disavowed their earlier affidavits filed in the proceedings, saying this:
RESPONSE TO APPLICANTS SYNOPSIS OF SUBMISSIONS
For and on the record, any communications/ submissions/ affidavits/ please/statements that were filed from our previous Solicitor, Mr R A Eagles re-presenting the Legal Fiction names of COREY ROBIN WOODROW /
9 The registry records indicate the respondents have filed at least 28 documents of generally similar import since February 2024 including many filed following the hearing.
10 In particular his evidence of the stages of the cannabis grow located by police, asserting that evidence to the contrary could be found on the internet.
VERONICA MARY COPE are null/void, as there was no FULL DISCLOSURE, therefore any/all contracts are not admissible in court/as the living beings on the land we :Corey-robin: Woodrow. / :Veronica-mary: Cope. The authorised agents for the ALL CAPS NAMES, we completely revoke and/all communications/submissions/affidavits/pleas/statements that were put forth from Mr R A Eagles on behalf of the Legal Fiction names COREY ROBIN WOODROW / VERONICA MARY COPE. We :Corey-robin:
Woodrow. / :Veronica-mary: Cope. don’t consent nor admit to any illegal activity of any sort as there was no full disclosure by Mr R A Eagles and “Corey-robin: Woodrow. Original Solicitor Mr B Dawkins thus making any contracts with he Crown null and void.
NO CONSENT NO CONTRACT.
If :Corey-robin: Woodrow. / :Veronica-mary: Cope. the authorized agents for the all caps name COREY ROBIN WOODROW / VERONICA MARY COPE are made to appear in court, we demand that the Counsel for the Commissioner of Police provide a list of victims in this case to appear/give testimony?
~ Is it not true without a victim there is no crime, no corpus delicti?
…
[45] However, notwithstanding the respondents’ election to resile from their previous filings, the material on the record remains part of the case and, to the extent that it may assist the respondents’ case, I have considered it as discussed below.
Principles: profit forfeiture orders
[46]I must make a profit forfeiture order if I am satisfied that:11
(a)the respondent has unlawfully benefitted from significant criminal activity during the period 7 September 2015 to 13 July 2023;12 and
(b)the respondent has an interest in the property.13
[47] It is for the Commissioner to prove on the balance of probabilities that each respondent has unlawfully benefitted from significant criminal activity. If the Commissioner so proves, then the value of the “benefit” each respondent must forfeit is presumed to be the value stated in the Commissioner’s application: $150,000.14 A
11 Criminal Proceeds (Recovery) Act 2009, ss 55(1), 55(3) and 56.
12 Section 5, definition of “relevant period of criminal activity”.
13 Having legal description 766 Gore Mataura Highway, Mataura (Lot 1 Deposited Plan 331364).
14 Criminal Proceeds (Recovery) Act, s 53(1).
respondent may rebut this statutory presumption, on the balance of probabilities.15 I return to this aspect below.
Issues for decision
[48] The key issues for me to decide are first, whether I am satisfied that Mr Woodrow and/or Ms Cope have unlawfully benefitted from significant criminal activity. If so, what is the value of any unlawful benefit? Finally, am I satisfied Mr Woodrow and/or Ms Cope has an interest in the property at 766 Gore-Mataura Highway?
Analysis
Did the respondent unlawfully benefit from significant criminal activity?
[49] Mr Woodrow admitted cannabis cultivation and dealing in cannabis. That offending carried maximum penalties of seven years’ imprisonment and eight years’ imprisonment, respectively.16 It is significant criminal activity, as defined in s 6(1)(a) of the Act, which includes offending punishable by a maximum term of imprisonment of five years or more.
[50] Relevantly, the definition in s 6 is not limited only to proven criminal offending, but extends more widely, as follows:
Meaning of significant criminal activity
(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a) that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b) from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.
15 Criminal Proceeds (Recovery) Act, s 53(2).
16 Misuse of Drugs Act 1975, s 6(1) and (2)(c), and s 9.
(2)A person is undertaking an activity of the kind described in subsection
(1) whether or not—
(a) the person has been charged with or convicted of an offence in connection with the activity; or
(b) the person has been acquitted of an offence in connection with the activity; or
(c) the person’s conviction for an offence in connection with the activity has been quashed or set aside.
(3)Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).
[51] Pursuant to s 7 of the Act, a person has unlawfully benefitted from significant criminal activity if she or he has knowingly, directly or indirectly, derived a benefit from that activity, whether or not that person undertook or was involved in the significant criminal activity. Wilful blindness is sufficient to constitute knowledge for the purposes of s 7.17
[52] Plainly, Mr Woodrow unlawfully benefitted from the cannabis cultivation and dealing he conducted. Having regard to the evidence identified at [38] above, I am satisfied that occurred and he obtained illicit profits from June 2019 through November 2020.
[53] The Commissioner contends Ms Cope also knowingly derived a benefit and was herself involved in Mr Woodrow’s significant criminal activity. At the very least, Ms McKenzie submits, she was wilfully blind.
[54] When Police spoke to Ms Cope during the search on 28 November 2020, she denied any knowledge of the cannabis grow although admitted she occasionally went into the woolshed, and stated she was unaware of the $10,000 cash located or how it got there. In her response affidavit, Ms Cope described she was aware Mr Woodrow used cannabis for mood control and to assist with anger issues after a car accident. She said she became aware he was growing some cannabis but did not know where or
17 Vincent v Commissioner of Police [2013] NZCA 412 at [52]-[55].
how much, saying it was just “a suspicion”. She did not investigate or enquire as she “did not want to know”.
[55] However, I am satisfied Ms Cope was involved in Mr Woodrow’s cannabis cultivation at least to some degree albeit he was the principal architect and operator of the grows.
[56] Police examined Mr Woodrow’s cell phones which had been seized. Text messaging between the respondents occurring 10 days before the search stands in stark contrast to Ms Cope’s denial. On the afternoon of 18 November 2020, Ms Cope texted Mr Woodrow “hey honey. Just letting you know there is a power cut just in case you needed to do anything with the babies”.
[57]The following day, texts include this exchange:
Mr Woodrow Love you Can you please spray young ones when you go over please. In wooden box and plastic box behind the bar in the man cave now
Ms Cope You want me to do it now?
Mr Woodrow Yea if your not going over to later. Didn’t want to go to work smelling like weed.
MsCope Exactly. Ha Ha. Heading over now. Was on way to chickens anyway
Mr Woodrow Cool thanks.
Ms Cope Where is the spray bottle gorgeous
Mr Woodrow In back room. Don’t forget ones in big wooden cabinet Ms Cope It’s nearly empty. Is it just water
Mr Woodrow Yes
MsCope Ok. Cool. Will change sheets and clean house when time permits. Right back to trimming
Ms Cope Is any of it trimmed?
Ms Cope did you just want the big stuff removed
Mr CopeNot down the side of the tent and rest I just pluck main leaves off
Ms Cope So whole let needs trimmed?
Mr Woodrow Just sort stuff up side of tent, the rest ain’t to bad Ms Cope OK
Ms Cope Will trim other stuff after I’m finished. It’s not good Mr Woodrow Ok, put trimming in tub for [redacted] please hunni Ms Cope Yeah
[58]The next morning there was the following further exchange:
MrWoodrow Hey sweetheart, can you please spray the young ones when you feed the chickens please.
Ms Cope Don’t feed chickens till later but yes can do that…
[59] The text messages between Ms Cope and Mr Woodrow demonstrate not only Ms Cope’s awareness of the cannabis cultivation operation but also her active participation in the care of the cannabis plants. She sought Mr Woodrow’s instructions, reflecting the Commissioner’s case that Ms Cope was not the principal offender but that she was involved—at least to some limited extent—in his offending. Although the messages above are limited to the period of 18—20 November 2020, it is evident from them that Ms Cope was familiar with the nature of the staged operation and some of its horticultural tasks.
[60] Further, financial analysis of Ms Cope’s bank accounts show Ms Cope made significant cash deposits in varying denominations to personal bank accounts shared between or belonging to her and Mr Woodrow, from mid 2019 to late 2020. The deposit slips provided in Ms Fitzgerald’s affidavit record Ms Cope deposited:
(a)A total of $6,650 to her SBS account across three payments:
(i) on 29 July 2019, $4,200 in 10 $100 notes and 48 $50 notes;
(ii)on 9 October 2019, $950 in $50, $20 and $10 denominations; and
(iii)on 21 October 2019, $1,500 (denominations unknown).
(b)One-off deposits on 17 November 2019 of $1,000 to Mr Woodrow’s Visa account and $450 to Ms Cope’s Visa account, all comprising of
$50 notes.
(c)A total of $11,000 over the April–September 2020 period to Mr Woodrow’s Visa account, comprising nine transactions in varying denominations. The largest deposit was $2,200 and the lowest $100.
[61] Ms Cope explained in her response affidavit the cash deposits comprised rent payments from her daughter. I do not accept that explanation. First, the amounts deposited into Ms Cope’s bank account far exceed rental amounts, had any indeed been due, that would have been payable. Secondly, the deposits were made inconsistently in respect of both time and amount, rather than periodically—for example, on a weekly or fortnightly basis—and of a consistent amount as would be expected if the deposits were rental payments. Ms Cope explained that her daughter paid weekly rent of $150 in cash, which Ms Cope would accumulate before depositing the payments. This does not explain the temporal proximity of payments that comprised amounts of cash that could not have accumulated in the time since Ms Cope made the most recent prior deposit. For example, there was less than a two-week period after the 9 October deposit of $950 and the $1,500 deposit on 21 October 2019, and the deposit of $2,200 on 3 April was followed closely by another deposit on 22 April 2020 of a further $2,000. This is inconsistent with Ms Cope’s explanation, which notably remains uncorroborated by Ms Cope’s daughter. Nor did Ms Cope offer any explanation for multiple transactions on the same day.
[62] Ms Cope further explained she and Mr Woodrow would perform gigs and receive payments between $600 and $850 each time, they sold furniture for cash payments and bred a little of six puppies for $1,100 each. However, there is no evidence beyond Ms Cope’s affidavit to support her account of events and, even accepting that may be true, those amounts would not equate to Ms Cope’s total deposits over the relevant period. As well, the deposits totalling $11,000 at [60(c)] coincide with the sales of cannabis to [redacted]. In July and September 2020, Mr Woodrow sold [redacted] a total of four pounds of cannabis. Mr Woodrow asserted
to police in interview the going rate was $5,000 per pound, although the Commissioner contends Mr Woodrow’s rate was up to $10,000 per pound.
[63] Nor are these cash deposits explained by either of the respondents’ legitimate sources of income. The ARU analyst’s enquiries with the Inland Revenue Department show Mr Woodrow’s average yearly net income from 1 April 2015 to 31 March 2020, through his employment as a tank driver, was $60,974.50. Ms Cope’s reported income on average over that same period primarily from her employment with the Southern District Health Board was $41,362.81. Mr Woodrow’s and Ms Cope’s income at the financial year end on 31 March 2019 was $61,855.53 and $41,208.97, respectively.
[64] The evidence demonstrates Ms Cope made significant cash spendings and deposits into her and Mr Woodrow’s various bank accounts from mid 2019 to the end of 2020, with minimal ATM or account withdrawals. Yet, neither respondent received any notable increase in their reported income in the years or months prior to or during this period. In fact, while Mr Woodrow’s income from 1 April 2019 to 31 March 2020 increased slightly to $62,863.85, Ms Cope’s decreased to $35,246.58.
[65] It is not only that the timing of significant cash deposits and cash spendings by Ms Cope correspond with the time that it is likely Mr Woodrow’s cannabis operation was underway and returning equally significant profit indicates she was aware of that operation, but also that it is simply not believable that Ms Cope was dealing with those cash sums under the impression it was legitimately sourced. Rather, the only available inference is that Ms Cope either knew the cash was proceeds of Mr Woodrow’s cannabis operation, or deliberately refrained from making enquiries that would result in such knowledge, that is, she was wilfully blind.
[66] I find the deposits show Ms Cope had significant sums of cash readily available. Without a legitimate explanation as to its source, it can reasonably be inferred that cash was derived from Mr Woodrow’s cannabis operation and, further, that Ms Cope’s handling of the cash indicates her knowing receipt of the unlawful benefit.
[67] The ARU analyst also examined Mr Woodrow’s and Ms Cope’s various supermarket loyalty card spending. Between 30 March and 30 September 2020, the couple purchased goods in supermarkets using cash to the value of $3,947.30. This evidence further demonstrates the significant sums of cash Ms Cope had readily available, that, again, are unexplained but for that the sums were proceeds of Mr Woodrow’s cannabis operation.
[68] For these reasons, I am satisfied Ms Cope unlawfully benefitted from and, as I have found, was at least to some limited degree involved in Mr Woodrow’s cannabis operation. Even had I not so concluded, at the very least the evidence establishes that, upon becoming aware Mr Woodrow was growing cannabis and by deliberately refraining from investigating any further as to the extent of that operation, Ms Cope was wilfully blind.
What is the value of the unlawful benefit?
[69] The Commissioner seeks the forfeiture orders to the value of $150,000 against each respondent, assessed by the Commissioner for the reasons outlined at [39] on a conservative, low end valuation basis. Having accepted Mr Woodrow and Ms Cope unlawfully benefitted from significant criminal activity, the cultivation and supply of cannabis, this is the presumed value.18
[70] That presumption, however, can be rebutted by a respondent, on the balance of probabilities.19
[71] The rationale for the statutory presumption under s 53 of the Act is that, in comparison to police who will seldom have access to the information necessary to undertake such an exercise, people who have profited from significant criminal activity will be best placed to prove the amount of “benefit”, if any, they received.20 The evidence will normally require much more than a critique of the Commissioner’s methodology and must be genuine evidence concerning the actual benefit obtained.21
18 Criminal Proceeds (Recovery) Act, s 53(1).
19 Section 53(2); and Commissioner of Police v Tang [2013] NZHC 1750 at [30], cited with approval in Zhou v Commissioner of Police [2023] NZCA 137 at [55].
20 Commissioner of Police v Tang, above n 19, at [7].
21 Zhou v Commissioner of Police, above n 19, at [30].
[72] As I held at [31], the respondents did not wish to participate in the hearing nor give evidence in the witness box to respond to the Commissioner’s case and the case proceeded on a formal proof basis. The respondents’ evidence before this Court relevant to this ground is therefore limited to each of their affidavits filed on 21 November 2022. Although it is clear from the tenor and content of the respondents’ filings since February 2024 they disavow their earlier affidavits, I have reviewed those affidavits nonetheless to determine whether the respondents are able to rebut the value of the unlawful benefit.
[73]Mr Woodrow estimates the amount he received from selling cannabis was
$25,000 plus the $10,000 seized by police. He and Ms Cope contend he did not start growing cannabis until January 2020 and that he told police he had only heard $5,000 per pound was the going rate for cannabis, not that this was his rate. In addition to Ms Cope’s explanation above as to the source of the cash deposits comprising rental payments and gigs, Mr Woodrow says he did cash jobs including completing a friend’s bathroom and letting sheep graze on his property.
[74] There is no evidence corroborating Mr Woodrow’s claimed alternative sources of cash to explain the significant amounts readily available to him and Ms Cope. Although he disputes the Commissioner’s contended rate, Mr Woodrow does not specify what his rate was nor the quantity of cannabis he sold. The Commissioner’s valuation is based on the cannabis operation beginning in January 2020, despite the likelihood—given the text messaging data disclosed Mr Woodrow had been selling cannabis between March 2019 and November 2020, and that the unexplained cash deposits and spendings began in mid 2019—that Mr Woodrow’s cannabis cultivation and dealing activities occurred from mid 2019.
[75] The Commissioner’s valuation is assessed on a conservative basis against the known quantities of cannabis grown from Mr Woodrow’s cannabis operation, that is the eight pounds sold to [redacted] between July and November 2020 and the seven pounds located by police on 28 November 2020, and that the three grows of cannabis comprising 25 plants each in 2020 amount to $150,000.
[76] The Commissioner’s valuation also does not take into account that each grow was estimated by Mr Woodrow to produce 250 ounces of cannabis rather than the 200 ounces the Commissioner adopted, nor the large household items purchased by the respondents over the relevant period valued at approximately $45,000. In the absence of corroborating evidence of any kind the respondents’ asserted rebuttal is without foundation, Mr Woodrow’s proposed $25,000 being insufficient to cover the value of the eight pounds he sold to [redacted] alone.
[77] I am not satisfied the respondents have proven on the balance of probabilities that the unlawful benefit obtained jointly by the respondents is less than the value of
$150,000 as stated in the Commissioner’s application.
[78] This conclusion means the Commissioner will be able to recover from the respondents a total sum of $300,000.
[79] The potential unfairness of such double recoverability was addressed in Commissioner of Police v Tang.22 Katz J, having considered the Act’s predecessor and the United Kingdom’s equivalent for guidance, held:23
…a respondent who seeks to establish that they should only be liable for a specific portion of the overall proceeds of a criminal enterprise should prove (on the balance of probabilities):
(a)that the overall benefits derived from the significant criminal activity were not received either solely or jointly by him and one or more co-offenders (if they were, each co-offender will be liable for the full amount of such benefit); and
(b)that he did not benefit at all or only benefitted to a specific amount (in which case he will only be liable for that amount).
…under CPRA if there is no evidence on the issue, or it does not meet the required threshold, then a Court would not be entitled to simply divide the benefit equally between the conspirators. That is because, in the absence of credible evidence from a respondent rebutting the statutory presumption, the benefit amount to be included in the profit forfeiture order must be that stated in the Commissioner’s application.
(emphasis added)
22 Commissioner of Police v Tang, above n 19. Given, pursuant to s 6(2) of the Criminal Proceeds (Recovery) Act, “significant criminal activity” takes place whether or not the person accused of that activity has been charged with, convicted of, or acquitted of an offence in relation to that activity, I make no distinction between Katz J’s references to “offenders” or “co-offenders” and respondents of a forfeiture application.
23 At [30]-[31].
[80]Katz J observed:
[32] In my view application of such principles will not give rise to an unduly harsh outcome on the facts of this case, given Mr Tang’s lead role in the offending. However, the absence in the CPRA of any judicial discretion to reduce the benefit amount (such as previously existed under [the Proceeds of Crime Act] 1991) could potentially lead to harsh outcomes in some cases where proceeds are received jointly by multiple offenders.24
(footnote and emphasis added)
[81] This reasoning in Tang was adopted by the Court of Appeal in Zhou v Commissioner of Police, where the appellant contended the Commissioner unreasonably recovered twice the benefit received by him and his co-offender.25 The Court of Appeal held:
[58] There are two fundamental reasons why the second ground of appeal fails to gain any traction.
[59] First, Mr Zhou has not proven he and Ms He were jointly benefiting from the offending. On the contrary, the Commissioner’s case firmly established that Ms He was supplying synthetic cannabis to Mr Zhou at $6.00 per gram. Mr Zhou was a supplier in a chain that included Ms He, and those who purchased from Mr Zhou, including wholesale purchasers such as members of the Mongrel Mob.
[60] Second, there was no error involved when the Commissioner calculated Mr Zhou’s benefit by focusing on the gross revenue he received. This is because, the New Zealand statutory regime has been deliberately cast as a penal scheme designed to reduce the opportunity for a criminal to benefit from significant criminal offending and to deter others from engaging in similar offending.
[82] On its face this case is distinguishable from Tang and Zhou, which involved principal offenders who used others to assist them with the offending and payments to co-offenders were expenses or outgoings. The proceeds of Mr Woodrow’s cannabis operation were received jointly and shared jointly, the respondents depositing the cash into their own or each other’s bank accounts and using it for the family household. In that sense, the respondents did not each individually receive a benefit of $150,000 as
24 The Proceeds of Crime Act 1991 provided for pecuniary penalty orders to be made post conviction in relation to “benefits derived by a person from the commission of a serious offence”. Unlike under s 53 of the Criminal Proceeds (Recovery) Act, the predecessor Act did not include a statutory presumption; rather, the amount of a benefit received had to be assessed by specific criteria including the money or value of any other property that came into the defendant’s possession, the value of any other benefit provided to them, and the value of their property before and after the commission of the offence.
25 Zhou v Commissioner of Police, above n 19.
where, for example, the same sum is paid to a co-offender, that circularity itself demonstrating clear double benefit. However, I do not overlook the additional benefit accruing to each respondent by receipt of the illicit proceeds of Mr Woodrow’s offending. This enabled him/her also to enjoy the benefit of their lawful income as reported to IRD. In the 18-month period identified by the Commissioner this totalled approximately $130,000 net earnings of the couple.
[83] The Act’s primary purpose is to establish a regime for the forfeiture of property that has either been derived directly or indirectly from significant criminal activity or that represents the value of a person’s unlawfully derived income.26 One of the secondary purposes is to eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity.27
[84] Given the Commissioner has proven on the balance of probabilities the respondents have unlawfully benefited from Mr Woodrow’s cannabis operation to the value of $150,000, and the respondents have not rebutted that presumption, pursuant to s 55 of the Act I must make the orders sought.
Do the respondents have an interest in the property?
[85]The final issue is much more briefly addressed.
[86] Mr Woodrow is the legal owner of the property at 766 Gore-Mataura Highway. Ms Cope obtained an order from the Family Court at Invercargill vesting in her a one- half share of the property. Even without that order, Ms Cope would have an interest in the property as relationship property. I am therefore satisfied that each respondent has an interest in the property. Ms Cope has no standing to seek relief by relying on the protection of s 61 of the Act because she is a named respondent in this proceeding.
[87] It follows from these findings that I must make a profit forfeiture order against each respondent.28
26 Criminal Proceeds (Recovery) Act, s 3(1).
27 Section 3(2).
28 The Official Assignee may not dispose of the property to give effect to the orders until after the expiry of, at minimum, a 6-month period as specified in the Act: s 83.
Result
[88] The application for profit forfeiture orders in the sum of $150,000 against each respondent is granted.
[89] The maximum amount recoverable against each respondent is $150,000, to be realised and applied from the property at 766 Gore-Mataura Highway.
[90] There will also be costs in favour of the Commissioner on a 2B basis together with disbursements as fixed by the Registrar.
Order
[91]There are Orders accordingly.
………………………………………
Preston J
Solicitors:
PR Law for the Applicant
Copy to:
Mr Woodrow and Ms Cope
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