R v Kite - [2017] NZHC 2784

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-6518 [2017] NZHC 2784

THE QUEEN

v

JOSHUA MASON KITE

Hearing: 26 October 2017

Counsel:

H D L Steele for Crown
M E Goodwin for Defendant

Judgment:

14 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 November 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Crown

R v KITE [2017] NZHC 2784 [14 November 2017]

Counsel:
Matthew Goodwin (Auckland) for Defendant

The application

[1] The Crown seeks forfeiture of $38,480 pursuant to s 32(3) of the Misuse of

Drugs Act 1975:

If, on the conviction of any person for an offence against section 6, the 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 … may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

[2] On 6 October 2017, Mr Kite pleaded guilty to a charge of possession of methamphetamine for supply (93 grams), which is an offence against s 6(1)(f). He was convicted of the offence by Jagose J on the same day.

[3] The $38,480 was found, together with the 93 grams of methamphetamine, in a boot bag in Mr Kite’s bedroom. There is no doubt that he was in possession of the money. The contest is whether the money was in his possession for the purpose of facilitating the commission of an offence against s 6.1

[4] The onus of proof is on the Crown and the standard of proof is the balance of probabilities.2

[5] The Crown’s case is that the money was in Mr Kite’s possession as part of a float to be used for purchasing more methamphetamine as stock-in-trade.

[6] Mr Kite’s position is:

(a) The money was working capital for, and profit from, a car trading venture he carried on with his father;

1 The first option in s 32(3) does not apply where the s 6 charge is possession for supply: Keen v R
[2015] NZCA 221 at [8].
2 Keen v R, above n 1, at [10].

(b)The methamphetamine was purchased using $10,000 of the venture’s money;

(c) The purchase of the methamphetamine occurred some two days before the Police search in which the methamphetamine and the money were discovered;

(d)He had never before purchased methamphetamine and had not yet attempted to sell any of it; and

(e) Consequently, the money was not in his possession for the purpose of facilitating the commission of an offence against s 6.

The law

[7] Before I turn to an analysis of the evidence, I will discuss what the Crown has to prove…

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 R v Kite

Details

AGLC: R v Kite [2017] NZHC 2784
Case: [2017] NZHC 2784
Decision Date: 14 November 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen v Joshua Mason Kite was heard. The Crown sought the forfeiture of $38,480 pursuant to s 32(3) of the Misuse of Drugs Act 1975, on the basis that the money was in the possession of Mr Kite for the purpose of facilitating the commission of an offence against s 6 of the Act. Mr Kite pleaded guilty to a charge of possession of methamphetamine for supply and was convicted. The central issue was whether the money found in his possession was for the purpose of facilitating the commission of an offence against s 6 of the Act.

The court noted that the onus of proof was on the Crown and the standard of proof was the balance of probabilities. The Crown argued that the money was part of a float to be used for purchasing more methamphetamine. In contrast, Mr Kite claimed the money was working capital and profit from a car trading venture he carried on with his father. The court had to determine whether the money was in Mr Kite’s possession for the purpose of facilitating the commission of an offence against s 6.

The court found that the Crown had discharged its onus of proof. The money was available to Mr Kite for his personal expenses, but predominantly it was part of a float for the purchase of future supplies of methamphetamine as stock-in-trade. The money was Mr Kite’s, and the sums claimed as owing by Mr Thomas Kite were not part of it. The court concluded that the Crown’s application for forfeiture was granted and ordered that the money be forfeited to the Crown.

Orders