R v Masters - [2013] NZHC 2443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-185 [2013] NZHC 2443

UNDER Section 32(3) of the Misuse of Drugs Act 1975 and s 199 of the Summary Proceedings Act 1957

BETWEEN

THE QUEEN

Applicant

AND

JOSHUA JAMES MASTERS and NATALIE PATRICIA EYLES

Respondents

Hearing:

On the papers

Counsel:

J Shaw for Applicant S Cowdell for N Eyles

No appearance for J Masters

Judgment:

18 September 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 18 September 2013 at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R v MASTERS [2013] NZHC 2443 [18 September 2013]

Introduction and background

[1] The Crown has applied for an order under s 32(3) of the Misuse of Drugs Act 1975 (“MDA”) directing the forfeiture of cash, and orders under s 199 of the Summary Proceedings Act 1957 (“the SPA”) for forfeiture of personal property seized pursuant to a search warrant.

[2] On 3 August 2012, I sentenced Joshua James Masters to a total effective end sentence of ten years and five months’ imprisonment on two counts of supplying methamphetamine, one count of conspiring to supply methamphetamine and one count of money laundering.1 A minimum period of five years and nine months’ imprisonment was imposed.

[3] When Mr Masters was apprehended, the Police seized from a residential property at 9 Collett Road, Otara, which was occupied by him with the other respondent, Ms Eyles, cash totalling $20,456.11; items of clothing and other paraphernalia associated with the Killer Beez gang; and items associated with a music production business, Colourway Records, operated by Mr Masters. The seized items comprise Colourway Records posters, tickets, stickers, CDs, DVDs, and clothing such as hooded sweaters and t-shirts. Also seized were a Colourway Records cheque book and deposit book and a laptop bag containing Colourway Records items. The Killer Beez’ property seized comprises clothing with identifying logos, distinctive yellow bandanas, photographs and drawings.

[4] An indication at the time of sentencing that the Crown sought forfeiture of the cash and other items was deferred for the filing of a formal application and the hearing of submissions.

[5] On 17 October 2012, the Crown applied for an order for forfeiture of the cash pursuant to the MDA, on the grounds that the Court could be satisfied that the cash was received by Mr Masters in the course of or consequent upon the commission of an offence against s 6 of the MDA, and/or was in his possession for the purpose of facilitating an offence against that section.

[6] Applications were also made in respect of the items of personal property on the grounds that the Court should exercise its discretion under s 199 of the SPA to order that the items seized be forfeited to the Crown and destroyed:

(a)so as to suppress criminal activities of the Killer Beez gang; and

(b)given that the items were obtained, at least in part, from proceeds of Mr Masters’s methamphetamine dealing, which proceeds were laundered through Colourway…

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 Masters

Details

AGLC: R v Masters [2013] NZHC 2443
Case: [2013] NZHC 2443
Decision Date: 18 September 2013

CaseChat Overview and Summary

In the case of R v Masters, the High Court of New Zealand was asked to decide whether cash and property seized from the respondents, Joshua James Masters and Natalie Patricia Eyles, should be forfeited to the Crown. The Crown sought forfeiture of the cash under Section 32(3) of the Misuse of Drugs Act 1975, and of personal property under Section 199 of the Summary Proceedings Act 1957. Masters, who was serving a sentence for drug-related offences, had not opposed the application, but Eyles had contested the Crown's application for forfeiture, arguing that she had been separated from Masters since his arrest, that she was not charged with any offence under the Misuse of Drugs Act, and that there was no evidence that the seized items would facilitate further criminal activities.

The court had to decide whether the cash was received by Masters in the course of or consequent upon the commission of an offence against Section 6 of the Misuse of Drugs Act, and whether the Crown had demonstrated sufficient grounds for ordering forfeiture of the seized items under Section 199 of the Summary Proceedings Act 1957. The court found that the cash was in Masters’s possession for the purpose of facilitating further commission of drug dealing offences against Section 6 of the Misuse of Drugs Act, and therefore ordered that the cash seized by the Police from 9 Collett Road, Otara, be forfeited to the Crown. However, the court was not persuaded that returning the seized items to Masters and Eyles would facilitate the commission of crime or lead to an upsurge in criminal activity in Otara, and therefore ordered that the items of property identified in the schedule of exhibits seized from 9 Collett Road, Otara, other than the amounts of cash, be returned to the persons from whom it was seized.

In conclusion, the court ordered that the sum of $20,456.11 in cash seized by the Police from 9 Collett Road, Otara, be forfeited to the Crown, and that the items of property identified by yellow highlighting in the schedule of exhibits seized from 9 Collett Road, Otara, other than the amounts of cash, be returned to the persons from whom it was seized. The court found that while the discretion conferred by Section 199(3)(b) of the Summary Proceedings Act 1957 was broad and apparently unfettered, the discretion must be exercised judicially and there would need to be good reason for property seized under warrant not to be returned to the person entitled to it.

Orders