McLean v The King
[2023] NZHC 581
•21 March 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-163
[2023] NZHC 581
BETWEEN TE IHUAKA MCLEAN
Appellant
AND
THE KING
Respondent
Hearing: 6 March 2023 Appearances:
N M Dutch for the Appellant
J L C Manera for the Respondent
Judgment:
21 March 2023
JUDGMENT OF PALMER J
Solicitors/Counsel
Crown Solicitor, Pollett Legal Ltd, Tauranga N M Dutch, Barrister, Tauranga
MCLEAN v THE KING [2023] NZHC 581 [21 March 2023]
What happened?
[1] On 11 December 2020, Te Ihuaka McLean, aged 33, and his partner were arrested at a petrol station in Whakatāne. His partner possessed approximately 6.63 grams of a substance believed to be methamphetamine. Mr McLean possessed
$10,353.90 in cash. Police obtained call data for his mobile phone and alleged it revealed text exchanges from 13 November and 3 December 2020 in which he offered to supply 6.8 grams of methamphetamine. He was charged with offering to supply methamphetamine. While on bail, in September 2021, Mr McLean was arrested again at another Whakatāne petrol station and charged with other offences. This time, the Police found a .22 calibre pistol, live ammunition, digital scales, $550 in cash, two glass pipes and a large number of empty small plastic bags. The Police alleged his text message data confirmed Mr McLean sold a total of around 30 grams of methamphetamine on 79 occasions, offered to sell around 10 grams of methamphetamine on 19 occasions, and offered to sell cannabis on five occasions.
[2] Mr McLean pleaded guilty to offering to supply methamphetamine, offering to sell cannabis, unlawful possession of a firearm, unlawful possession of ammunition and breach of a community work sentence. On 22 June 2022, Judge L M Bidois sentenced him to two years and five months’ imprisonment.1
[3] The Police subsequently sought a forfeiture order for the $10,353.90 in cash under s 32(3) of the Misuse of Drugs Act 1975, which states:
If, on the conviction of any person for an offence against section 6, the Judge or District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.
[4] Mr McLean opposed the order. He had told the Police the money was his savings. He provided bank statements and an affidavit to the Court saying:2
4. Prior to being arrested I had been working. I was working for odd jobs for a roofer and had been paid in cash when work was available.
1 New Zealand Police v McLean [2022] NZDC 11717.
2 Affidavit of Te Ihuaka McLean as to not forfeiting money, 23 August 2022.
5. I had also been on-line gambling. I would use other people’s gambling accounts because I had too many gambling accounts previously open. . . Therefore, any money that I won, would not go into my account but other people’s accounts and they would give it to me in cash after getting it out of their bank account.
6. I also was in receipt of a benefit through work and income. It was sometimes paid into my bank account but it was sometimes paid into my partner’s account. . .
…
10. I save all of that cash, as I was saving for my daughter’s headstone, and for her unveiling. These were important things for me to do for her passing and making sure that she was provided for.
[5] The Police did not offer any evidence and did not seek to cross-examine Mr McLean.
[6]On 10 November 2022, Judge Bidois granted the order, saying:3
(a)To be forfeited, the money must be related to the criminal offending he was charged with.4
(b)When drugs, drug-dealing transactions, and money are found together or closely connections, that leads to an inevitable inference that the money is drug money. But the inference can be rebutted.5
(c)There was no evidence: from a roofing contractor as to when Mr McLean worked, how he got paid and how much he was paid; of his investments; that the money found was money he had won gambling; or that money was being passed to his associates so he could gamble;6 there was no documentation to support his counsel’s assertion that Mr McLean and his partner might have been on a joint benefit which was later split.7
3 New Zealand Police v McLean [2022] NZDC 22472.
4 At [4].
5 At [7].
6 At [10].
7 At [11].
(d)The defendant was not required to provide such evidence but if there was an innocent explanation of where the money came from that would make it easier for the Court to overturn the inference.8
(e)The money was not kept in his bank account as he cannot put illegitimate money into his account because it becomes traceable.9
(f)Some parts of the defendant’s evidence, such as the gambling, may be true but the assertion all the money was legitimate is not convincing.10 It begs the question: where is the drug money? The summary of facts points to transactions with significant returns.
(g)“I am satisfied that this is not legitimate money and that it came from drug dealing, so it will be forfeited”.11
Submissions
[7] Mr Dutch, for Mr McLean, submits there was no evidence to contradict Mr McLean’s evidence, that suggested he had legitimate funds which included the cash, and Mr McLean’s evidence was effectively accepted and unchallenged. The decision was against the weight of evidence. The Police did not meet the burden of proof on them and the Court reversed the onus by requiring Mr McLean to provide a further explanation. Mr McLean was not found to have actually been dealing methamphetamine, just offering to do so. The Court could not have been properly satisfied, on the balance of probabilities, that the cash was received in the course of the commission of the offence. The Court misstated the legal test. And, because the Court accepted some of the money was legitimate, it could not have ordered forfeiture of all the money. The Court incorrectly considered evidence from other charges, of which Mr McLean has not been convicted, to conclude the money was illegitimate.
8 At [12]
9 At [13].
10 At [14].
11 At [16].
[8] Mr Manera, for the Police, submits Mr McLean’s bank statements contain several discrepancies that impact on the validity and reliability of his evidence. The Judge was justified in ordering forfeiture based on his assessment of the credibility and reliability of the evidence. Mr McLean provided no supporting documents to substantiate his claims in the affidavit and there was no evidence of cash deposits relating to a roofing job or pay-outs from online gambling. The Judge did not reverse the onus of proof but assessed the credibility and reliability of the evidence presented. That included acknowledging that gambling returns were being paid into others’ bank accounts. But the Judge was justified in concluding there was insufficient evidence to support those returns being part of the money found on arrest. Given that Mr McLean pleaded guilty to offering to supply methamphetamine, it can be assumed he had the ability to make good on his offers and the money found in his possession is consistent with that assumption.
Should the appeal be granted?
[9] Section 250 of the Criminal Procedure Act 2011 (CPA) is usually the provision mentioned in relation to appeals of forfeiture orders under the Misuse of Drugs Act. Under s 250, I must allow an appeal if satisfied that there is an error in a sentence imposed and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.12 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.13 An appeal of such a forfeiture usually accompanies appeal of a more conventional sentence.14 The definition of “sentence” in s 212 of the CPA “includes any method of disposing of a case following conviction”. That seems broad enough to relate to a forfeiture order made under s 32(3) of the Misuse of Drugs Act, following conviction. Counsel for the appellant filed the appeal under ss 273 to 275 of the CPA but those provisions relate to costs decisions and he did not make any point about the appeal threshold in his submissions. Counsel for the Crown submitted that the appeal is governed by s 250 without objection. I proceed on that basis.
12 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
14 See, for example, Keen v R [2015] NZCA 221 and Porter v Police [2022] NZHC 415
[10] Section 32(3) of the Misuse of Drugs Act requires that, to be forfeited, the money found in Mr McLean’s possession on 11 December 2020 must have been received by him in the course of, or consequent upon the commission of the November and December 2020 offending. The Police must prove their case on the balance of probabilities.
[11] The Court can take into account the Police summary of facts on the basis of which Mr McLean pleaded guilty,15 Mr McLean’s affidavit and associated bank statements, and the Police’s decision not to cross-examine Mr McLean. The District Court explicitly took into account the summary of facts and Mr McLean’s affidavit. That amounts to Mr McLean admitting that he offered to supply methamphetamine, his partner’s possession of methamphetamine, and his explanation that he was saving for his daughter’s unveiling. The Police did not challenge that explanation. But notably, in his affidavit, Mr McLean never explicitly states from where the $10,353.90 was derived. He identifies a number of sources from which he received cash. And he says he was saving cash for his daughter’s headstone. But he does not say where the cash that is subject to the forfeiture order came from.
[12] In assessing the evidence, the Judge was entitled to infer from the Police summary of facts, and guilty plea, that the cash was received in the course of, or consequent upon, the drug-dealing. He was also entitled to reject a proposition based on Mr McLean’s evidence that it came from sources other than drug-dealing. As the Judge noted, it would have been more difficult to reject Mr McLean’s proposition if there had been corroboration that the cash in question derived from a source other than drug dealing. The Police decision not to cross-examine Mr McLean did not mean the Judge was required to accept Mr McLean’s evidence.
[13]The case law does not assist Mr McLean:
(a)As the Court of Appeal in Keen v R held, s 32(3) requires an assessment of the offender’s purpose in holding the money at the time of seizure, rather than an accurate prediction of how the money was to be used in future.16
15 Commissioner of Police v Jones (1990) HC Auckland S117/89, 2 November 1990, at 8.
16 Keen v R [2015] NZCA 221 at [15].
(b)In the same case, the Court stated that the ready availability of a pool of money to be deployed to purchase product comfortably comes with the second limb of s 32(3) of the Act, of being “in the possession of that person for the purpose of facilitation the commission of an offence”, in which case the entire sum is liable to be forfeited.17
(c)The case of Bishop is distinguishable, because the cash could not have been derived from possession of cannabis, as it was found that the cannabis there could not have been supplied.18
[14] The District Court did not misstate the legal test. It did not reverse the onus of proof but, rather, evaluated the evidence before it. The Court did refer to the 2021 charges but did not rest its decision on that. And the Court of Appeal’s point (b) above, in Keen v R, means that there could reasonably be a connection between the amount of cash he was carrying and the 2021 methamphetamine offending to which he pleaded guilty.
[15] The District Court was entitled to order forfeiture of all of the money. I can detect no error in the Judge’s reasoning. I dismiss the appeal.
Palmer J
17 At [16].
18 Bishop v R [2010] NZCA 66.
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