R v Jarden HC Christchurch CRI 2005-009-001376

[2007] NZHC 1889

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-009-001376

REGINA

v

JONATHAN NUKI LUMMIS JARDEN

Hearing:         21 June 2007 (On Papers)

Appearances: D J Orchard and C E Butchard for Crown

R G Glover for Prisoner

Judgment:      21 June 2007

JUDGMENT OF FOGARTY J

[1]      The Crown seeks an order for  forfeiture of the  cash of $7,497  found  in Jarden’s premises under s 32 of the Misuse of Drugs Act 1975.  Section 32(1), (2) and (3) of the Act is as follows:

32     Forfeiture

(1)     Every person convicted of an offence against this Act shall, in addition to any penalty imposed pursuant to this Act, forfeit to Her Majesty, by virtue of such conviction, all articles, if any, in respect of which the offence was committed and in the possession of such person.

(2)     Articles forfeited under the provisions of subsection (1) of this section shall be sold, destroyed, or otherwise disposed of as the Minister directs.

(3)     If, on the conviction of any person for an offence against section 6 of this Act, 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

R V JARDEN HC CHCH CRI 2005-009-001376  21 June 2007

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.

…

[2]      The Crown accept that the prisoner was dealing in cannabis as well as methamphetamine during the time of Operation Tsunami.  That being the case, the Crown  accepts  the  Court  cannot  be  satisfied  that  all  the  money  found  in  his possession came from methamphetamine dealing.

[3]      However, the Crown submits that s 32(3), the second limb thereof, applies. That is to say, it submits that the money found on the premises can be found by this Court  to  be  in  the  possession  of    Jarden  for  the  purpose  of  facilitating  the commission of an offence against s 6 of the Misuse of Drugs Act 1975.  Section 6(1) of that Act provides:

6     Dealing with controlled drugs

(1)      Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—

(a)     Import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of the Schedule 3 to this Act; or

(b)     Produce or manufacture any controlled drug; or

(c)      Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or

(d)      Supply or administer, or offer to supply or administer, any

Class C controlled drug to a person under 18 years of age; or

(e)     Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or

(f)       Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.

[4]      The  Crown  agree  that  this  Court  has  to  be  satisfied  on  the  balance  of probabilities that the money was for that purpose.

[5]      Developing her submissions Mrs Orchard relied on the fact that a substantial part of the money was found hidden inside a pokie machine.    Second, that Jarden was in arrears of rent and thirdly, there was little evidence that he did make his living by buying and selling second-hand cars.

[6]      Mr Glover for Jarden submitted that Jarden did make his living by buying second-hand cars.   The premises he was occupying was a combination garage and apartment.  He submitted that otherwise Jarden was living from hand to mouth and relying on assistance at the time from his now deceased partner, Penny, who had inherited money.

[7]      It was common ground between counsel that Jarden was dealing in cannabis. Mr Glover also submits that he may have been dealing in ecstasy.  He points out that two ecstasy tablets were found at Jarden’s address.

[8]      Mr Glover also relies on the fact that there were no proved quantities of dealing in methamphetamine against Jarden.

[9]      One can reach the threshold point of finding that it is quite likely that the cash in his possession was to be used for the purpose of committing one or more offences under s 6.  However, one cannot be confident on the balance of probabilities that all of it was.  Nor can the Court be confident that a substantial portion of it was.  While there is ample evidence that Jarden was dealing  in cannabis,  there  is  not  much evidence as to the scale of his dealing.

[10]     If he was a significant commercial drug dealer one would expect his rent to be up to date.  That leads some credence to the proposition that the money was set aside for special purposes.   Certainly, if he was dealing in cars he would need a significant float.

[11]     In the end this Court is not satisfied on the probabilities that the Crown have made out a case under the second limb of subs (3).  There is no order for forfeiture.

Solicitors:
Raymond Donnelly & Co, Christchurch, for Crown

R Glover, Christchurch, for Prisoner