Keen v R

Case [2015] NZCA 221 8 June 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA479/2014
[2015] NZCA 221

BETWEEN	ROBERT GEORGE KEEN Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2015
Court:	French, Simon France and Clifford JJ
Counsel:	A J Bailey for Appellant M J Lillico for Crown
Judgment:	8 June 2015 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Keen was found guilty following a jury trial of one charge of possessing methamphetamine for supply.[1] He was sentenced by Judge Garland to a term of imprisonment of five years and three months. At the same time the sum of $43,170 was forfeited to the Crown.[2] Mr Keen appeals the forfeiture order.
[1]He also pleaded guilty to a charge of being in unlawful possession of a pistol and a charge of receiving stolen goods, but those charges are not material to this appeal.
[2]R v Keen DC Christchurch CRI‑2011‑042‑3369, 6 August 2014.
On the particular occasion when the drugs were found, Mr Keen came to the attention of the police because of complaints made by members of the public about his driving, and an altercation which then followed. When police went to apprehend him, they did so with care because their national information system contained warnings that Mr Keen may be armed. Accordingly his residence, a mobile home, was placed under brief observation.
Judge Garland made the following findings of fact as to what happened next:
[5]       … You then entered the mobile home briefly before exiting and standing alongside. At that point the dog handler moved forward and called upon you to get on the ground and show your hands. You raised your left hand and crouched down to lie on the ground. Whilst doing that your right hand was not visible and the dog handler asked you to show your right hand. The dog handler moved closer to where you were and he could see that your right hand was now on the ground and partially under the mobile home. You were then apprehended and placed under arrest.
[6]       Located under the mobile home where your hand had been was a .22 calibre revolver which contained seven rounds of ammunition. Located underneath in the same place was a plastic shopping bag containing a large amount of cash and two pill containers with small plastic snap lock bags inside them. Further examination of those items established that there was [$43,130] in cash and that the snap lock bags contained methamphetamine with a total weight of 30.5 grams. Once the methamphetamine was dried it weighed 21.8 grams.
[7]       Subsequent to your apprehension and arrest search warrants were executed on your vehicles and also a storage unit rented by you in Belfast. A search of your mobile home located a set of digital scales which were found to have on them traces of methamphetamine. Additionally, $810 in cash was also obtained from inside a small safe also found in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keen v R

Details

AGLC: Keen v R [2015] NZCA 221
Case: [2015] NZCA 221
Decision Date: 8 June 2015 at 4.00 pm

CaseChat Overview and Summary

In Keen v R, the Court of Appeal of New Zealand considered an appeal against a forfeiture order under the Misuse of Drugs Act 1975. The appellant, Robert George Keen, was convicted of possessing methamphetamine for supply. He was also found to be in possession of a substantial sum of money, which the trial judge determined was a float intended to fund future purchases of methamphetamine. The judge ordered the forfeiture of the money to the Crown. Keen appealed this decision, arguing that not all the money was intended for future drug-related activities.

The legal issue before the court was whether the entire sum of money found in Keen's possession was liable for forfeiture under section 32(3) of the Misuse of Drugs Act 1975. This section permits the forfeiture of money if it was received by the defendant in the course of or consequent upon the commission of an offence, or if it was in the possession of the defendant for the purpose of facilitating the commission of an offence. Given that Keen was charged only with possession for supply, forfeiture under the first option was not available. Instead, the court needed to determine if the money was held for the purpose of facilitating future drug offences.

The court considered the evidence and concluded that the money was a float intended to fund future purchases of methamphetamine. It was not necessary to conduct a detailed analysis of how the money might be used in future offending. Instead, the emphasis was on the purpose of possession. The ready availability of the money to be used as needed for the drug enterprise rendered it liable to forfeiture. The court found that Keen's argument that he might use the money for other purposes, such as living expenses, was irrelevant so long as the money was held as a float available to fund future drug dealing.

The appeal was dismissed. The Court of Appeal upheld the trial judge's decision that the entire sum of money found in Keen's possession was liable to be forfeited to the Crown.

Orders