R v Gordon-Smith HC Christchurch CRI 2005-009-13766
[2007] NZHC 2045
•24 August 2007
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2005-009-013766
REGINA
v
DEBORAH JAN GORDON-SMITH
Hearing: 17 & 24 August 2007
Appearances: D J Orchard and C E Butchard for the Crown
D C Ruth for Prisoner
Judgment: 24 August 2007
JUDGMENT OF FOGARTY J
[1] Deborah Gordon-Smith has been convicted on a number of charges involving the supply of methamphetamine, a Class A drug, and also supply of a Class B controlled drug, and a Class C controlled drug.
[2] The Crown are seeking an order for forfeiture under s 32(3) of the Misuse of
Drugs Act for the sum of $6,970. This sum can be divided into three categories:
•$620 was found tucked in Ms Deborah Gordon-Smith’s bra on her person when the police searched her premises;
R V GORDON-SMITH HC CHCH CRI 2005-009-013766 24 August 2007
•A sum of $1,350 was found in what is known as the Paul Franks handbag, a handbag which contained a great deal of drug paraphernalia, tick lists and so on; and
• A sum of $5,000 wrapped in an infringement notice was the third category.
[3] In the hearing before me the contest has essentially been as to whether or not I can be satisfied that the $5,000 wrapped in the infringement notice was received by the person in the course, or consequent upon the commission, of the offence for which she has been convicted, or for the purpose of facilitating the commission of a further offence. In that latter respect there had been a further deal of methamphetamine in town shortly before the money was seized, and the police case is both that the $5,000 came from past crimes and was going to be used for the next crime.
[4] These proceedings under s 32 are not civil proceedings in which the issues are pleaded. Whatever position counsel take the Court nonetheless has to be satisfied that the criteria under s 32(3) have been applied. I am satisfied that the money in the Paul Franks handbag, and the Paul Franks handbag contents, were Ms Deborah Gordon-Smith’s working drug dealing bag. Mr Ruth has offered no submissions to the contrary, and there will be an order for forfeiture of that sum of
$1,350.
[5] Mr Ruth did not argue a case against the money in the bra of $620, but I am not satisfied that that money fits the criteria for s 32(3), the reason being that Deborah Gordon-Smith ran a household; she was a mother of children; she was in receipt of a benefit. She may also have had other sources of income which were legal. She may well have had some money on her person which she withheld from the Government and were from legal sources.
[6] The Crown says, well we have not had any evidence where the money came from in the house. That does not answer the test. I have to be satisfied that the money in the bra had positively come from crime. I think it is quite possible that with at least some of the money in the bra was not from the commission of an
offence and was not intended for the purposes of buying more drugs. Nor do I think Parliament gives me some kind of “King Solomon” jurisdiction to divide up and apportion that money. For that reason there will be no order for forfeiture in respect of the $620 found in the bra.
[7] I turn now to the $5,000, the money over which the argument has been pursued over these days of hearing. Essentially, the issue has arisen because Ms Deborah Gordon-Smith has identified, and it had been produced in evidence, a photocopy of an agreement which reads:
I Chris Ellmers have given Debbie Gordon Smith a personal loan of five thousand dollars to be paid back at one hundred dollars a week. Interest incl equals fifty five weeks starting with first payment on 9.1.06
Chris Ellmers 3.12.07
I Debbie Gordon Smith have received this money (five thousand) and agree to these terms above.
D Gordon Smith
Witnessed J M Scandrett
[8] It has three signatures on it: one by Chris Ellmers, one by Deborah Gordon- Smith and is said to be witnessed by J M Scandrett.
[9] The best way to explain this issue is to give Deborah Gordon-Smith’s explanation why she says this is written proof and then the Crown’s answer. When Deborah Gordon-Smith was first interviewed at her home on this day by Constable Wilson she said that the money was for a car. When she was interviewed a short time later by Detective Barrett she said that there was a $5,500 loan for the car. I am summarising briefly the statements, but that was the gist of it. She did not, at the time, produce the loan document which she has subsequently said was at all times the original in a wallet in the house. She said in explanation in cross-examination that she did not want to bring Mr Chris Ellmers’ name into play at this particular time when the police were searching her house for drugs.
[10] The police case is that those statements to the two constables on the day were being made up on the spot while she was thinking quickly, and that the document
has been subsequently manufactured to give credence to the argument. The police say she did not need a car at that time, and that she had the use of a Subaru, which, while at that time was registered in the name of her flatmate Tania, was in all probability hers, and that it seems rather inconsistent with the loan agreement said to be dated 3 December that Chris Ellmers then tried to lay claim to the Subaru car and indeed registered in his name in January 2006. The Crown also argue in the time that she was on bail for a year she made no attempt to pay it back. Deborah Gordon- Smith said that due to curfew she was not able to earn income during that period.
[11] The Crown also attack the denomination of notes found in the bundle of
$5,000, and cross-examined Ms Deborah Gordon-Smith on the basis of the photograph in the file of exhibit of the different denomination of notes. That all fell to the ground because the denomination of notes that were being put to Ms Deborah Gordon-Smith simply did not add up to $5,000. On the first count it got nowhere near $5,000, and then got up over about $3,500, but either way it left me totally unconvinced as to what were the denominations in the $5,000.
[12] Ms Deborah Gordon-Smith said in evidence that it was possible that she had taken money out of the $5,000 and put other money in in the course of the time that it was set aside for buying the car. That is quite a possibility. Money set aside in a household can sometimes be tickled and then replaced.
[13] The Crown then, after some encouragement from the bench, approached Ms Scandrett and Mr Ellmers. Ms Scandrett was called as a witness in rebuttal. She clearly does not recall having signed the document. She did know Mr Ellmers. She did know him at the material time. Deborah Gordon-Smith was able to give a very good description of her before she then saw her. Ms Scandrett denied, however, that she had been in Ms Deborah Gordon-Smith’s house, and did not recall the occasion when Deborah Gordon-Smith said the document was witnessed by Ms Scandrett on an occasion when about seven people were present. Ms Scandrett said she only ever parked outside the house. She said she had met Deborah Gordon-Smith once outside her own house in the presence of Mr Ellmers. Ms Scandrett said that although the signature on the document was very similar to hers she thought there were some characteristics indicating it was not, and in that respect said that when she signs her
name it is all joined together saying “all the letters are connected usually”. She certainly thereby raised the very real prospect, taking her evidence as a whole, that this signature was forged, inferentially by Chris Ellmers who was living in her house at least in early 2006, the evidence is not clear if he was living there the year before. I think he was. But in cross-examination she was asked this question by Mr Ruth:
Q. U were asked by the crown about what u knew of a loan arrangement between Mr Ellmers and Ms Gordon-Smith, if u were the witness u wdnt have had to know anything about that, is it possible u signed your name on this not know what it was all about
A. Yes quite possibly.
[14] At the end of the evidence I was left with the real possibility that Ms Scandrett did sign this document, possibly not at Main North Road, but at some stage, possibly not in the presence of Deborah Gordon-Smith and it might have been signed by Mr Ellmers. That sort of thing does happen, and I note that in her evidence she began by acknowledging that the signature “it looks my signature”, although she was adamant she did not sign it.
[15] Mrs Orchard’s argument about this document relative to the various statements I have previously summarised, but I wish to say something more. Mrs Orchard essentially said that Ms Deborah Gordon-Smith’s statements made to the two police officers were not consistent with the document. I put it the other way and said: were they inconsistent? Consistency is not the only test of credibility, and indeed recent studies, which are now being conducted at pace around the world on the subject of credibility, indicate that honest witnesses often make mistakes and indeed, are inconsistent as to detail and sometimes correct themselves.
[16] Ms Deborah Gordon-Smith was having a day of considerable stress at the time she made the statements to Ms Wilson and to Mr Barrett. Mrs Orchard said she was a woman of considerable poise and she was thinking fast on her feet, and she may well have been. Nonetheless, there is a broad consistency with the very first statement she made to the police officers. She has consistently said that the money was for a car. Secondly, the fact that she mentioned $5,500, rather than $5,000 can be understood when one considers the terms of the document. The terms of the document indicate a personal loan of $5,000, that was to be paid back at $100 a week
for fifty-five weeks. So although it was a loan of $5,000, it was a debt of $5,500. Lawyers understand readily the difference between a loan and a debt, but it is quite understandable, it seems to me, for a lay person to intermix the terms, if that is what happened here.
[17] Part of the overall Crown hostility to the proposition that the $5,000 would not be a loan for a car is the overall background theory of the Crown case that Ms Deborah Gordon-Smith was a major drug dealer at the head of a significant distribution chain distributing large amounts of methamphetamine coming into Christchurch. I was satisfied at the trial that she was a dealer, for methamphetamine drugs, and she has been sentenced accordingly. I had no occasion to say so in the sentencing notes, but I was also of the view that the police had by no means identified the significant distributors buying off Sui in Christchurch. I had personally thought that they had overstated the significance of the particular tree of distribution that ran off Ms Deborah Gordon-Smith. Ms Deborah Gordon-Smith did not have a bundle of assets or accoutrements, fancy cars and so on, that might have been associated with a successful drug dealer. She was living in relatively modest circumstances. She was an extremely heavy user of methamphetamine at the time, and was in very bad shape, to the point that she was pulling her hair out and had to wear a wig. She was selling drugs to people who were to some extent friends and acquaintances, rather than arms length drug deals.
[18] There is a very real possibility, which I accept, that the $5,000 was wrapped and put aside as the money to be paid to Sui for the next delivery. I do not want it to be thought in this judgment that I am rejecting that as a likelihood, but the question I have to decide is whether I am satisfied that that $5,000 came from drug dealing, or was going to be used for the purchase of the next supply of drugs from Mr Sui. She tended to buy drugs from Mr Sui repeatedly and if it was going to be used it would be used in proportions perhaps.
[19] Be that as it may, the question I have come back to and kept in my mind throughout the hearing, is whether I am positively satisfied that that money was received in the commission of an offence or was in her possession for the purpose of facilitating a commission. In that regard the Crown’s problem was to deal with the
argument that it was money for the car. The possibility that it was money borrowed to buy a car has been live ever since the agreement was produced which reinforced the statements made on the day to the officers. It has a broad attraction in the sense that Ms Deborah Gordon-Smith had moved house and her children were going to a school in a different location and she had a more daily need for a car. It is certainly clouded by the argument that Tania had another car. It is clouded by the role of Chris Ellmers, the fisherman, coming backwards and forwards. At the end of the hearing I simply do not know. But at the end of the hearing I cannot be sure so that I can be satisfied that the money, that $5,000, came from the commission of drug deals, or had been put aside for the purpose of buying a car.
[20] I said “to be sure” in association with the test of being satisfied. There is an argument between counsel and I as to whether the test is on the balance of probabilities or reasonable doubt. I advised counsel that my own view is that the test is the standard set by Parliament, and the words Parliament has used “that the Judge be satisfied”. It is not particularly helpful to go to the civil standard, the balance of probabilities, partly because, firstly, the words are not used by Parliament; secondly, because as the authorities discuss in detail, that is a shifting standard which depends, to a degree, on the nature of the issue. Here the nature of the issue is the confiscation of property. One would normally look for a very satisfactory degree of proof, even in a civil case, and, secondly, the concept of proof beyond reasonable doubt, that is very much confined to criminal proof, is a standard which is very difficult to define, and again, not used by Parliament here.
[21] So, I am using the word “sure” not as a shorthand reference to the proof beyond reasonable doubt, but as being satisfied that I have the jurisdiction to have this money forfeited. Because of the presence of this document, which I do not think has been completely impugned, I have to accept that it may well be valid, and I think that the conduct of Mr Ellmers, for example, in trying to get hold of the car later on does not destroy the proposition that he did lend $5,000 to Deborah Gordon-Smith. There is a credible scenario. She consistently said she had the money for the car, and she had produced the agreement, and Ms Scandrett has admitted the possibility that she did sign it. Because of those key facts I have summarised I will not be making any order for forfeiture.
[22] Accordingly, there is no order for forfeiture of the $5,000.
[23] The $5,000 and $620, as held by the police in cash, are to be delivered by the police to Mr Ruth who has undertaken to have them deposited in the first instance with an instructing solicitor.
[24] There will be no order for costs.
Solicitors,
Raymond Donnelly & Co, Christchurch for Crown
D C Ruth, Christchurch for Prisoner
0
0
0