McLean v The King - [2023] NZHC 581

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…

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 McLean v The King

Details

AGLC: McLean v The King [2023] NZHC 581
Case: [2023] NZHC 581
Decision Date: 21 March 2023

CaseChat Overview and Summary

Te Ihuaka McLean appealed against a decision by the Rotorua District Court to order the forfeiture of $10,353.90 in cash. Mr McLean had been arrested with methamphetamine and was found in possession of a large sum of cash. He was subsequently charged with various drug and firearms offences, to which he pleaded guilty. The police sought a forfeiture order for the cash under section 32(3) of the Misuse of Drugs Act 1975, which allows for the forfeiture of money found in the possession of a person convicted of an offence against section 6 of the Act. Mr McLean opposed the order, claiming the money was his savings and not related to drug dealing. The District Court granted the order, finding that the money was likely derived from drug dealing.

The primary legal issue before the High Court was whether the District Court erred in ordering the forfeiture of the cash. Mr McLean's counsel argued that the police had not provided any evidence to contradict his client's claim that the money was legitimate and that the District Court had misstated the legal test for forfeiture. The police contended that the District Court was entitled to assess the credibility of the evidence and that the amount of cash found was consistent with drug dealing activities. The court had to determine whether the District Court's decision was within the available range of outcomes and whether there was any error in the reasoning process.

The High Court held that the District Court did not err in ordering the forfeiture of the cash. The court noted that the police are required to prove on the balance of probabilities that the money was received in the course of, or consequent upon, the commission of the drug-related offence. The High Court found that the District Court was entitled to infer from the guilty plea and the summary of facts that the cash was related to drug dealing. The court also found that the District Court did not misstate the legal test and did not reverse the onus of proof. The High Court concluded that there was no error in the District Court's reasoning and dismissed the appeal. The appeal threshold under section 250 of the Criminal Procedure Act 2011 was satisfied, as the High Court found no error in the District Court's decision.

In conclusion, the High Court dismissed the appeal and upheld the District Court's order for the forfeiture of the $10,353.90 in cash. The court found that the District Court's decision was based on a proper assessment of the evidence and that there was no error in the reasoning process. The High Court did not find any basis to intervene and substitute its own views on the matter. The forfeiture order remains in place.

Orders