R v Sims HC Auckland CRI-2009-004-13439

[2011] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-13439

THE QUEEN

v

TERRENCE ARTHUR SIMS ROBERT JONES WENBIN GU

AND JIALIN WU

Hearing:         (on papers)

Counsel:        Y Yelavich for the Crown M Dyhrberg for Mr Sims S Tait for Mr Jones

M Edgar for Mr Gu
D Niven for Mr Wu

Judgment:      20 December 2011 at 4:45 PM

JUDGMENT OF WOODHOUSE J (Crown application for forfeiture)

This judgment was delivered by me on 20 December 2011 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Ms Y Yelavich, Meredith Connell, Office of the Crown Solicitor, Auckland
Ms M Dyhrberg, Barrister, Auckland

Mr S Tait, Barrister, Auckland

Mr M Edgar, Barrister, Auckland

Mr D Niven, Barrister, Auckland

R V SIMS and ORS HC AK CRI-2009-004-13439 20 December 2011

[1]      The Crown seeks orders that sums of cash found in the possession or control of Messrs Sims, Jones, Gu and Wu be forfeited to the Crown pursuant to s 32(3) of the Misuse of Drugs Act 1975.

[2]      Counsel agreed that the application could be dealt with on the papers.  I have received written submissions for the Crown and for Messrs Jones, Gu and Wu.  Ms Dyhrberg, counsel for Mr Sims, advised that the application for forfeiture of the sum of $5,960 found in Mr Sims’ car was not opposed.

[3]      I have taken into account the submissions on the law on behalf of the Crown and Messrs Jones, Gu and Wu, but it is unnecessary to seek to summarise those submissions.  I also do not intend to seek to summarise facts which are set out in detail  in  the  disputed  facts  judgment  of  4  October  2011  and  in  the  sentencing remarks on 6 October 2011.   Further facts are contained in earlier judgments on issues that arose during the trial.

Mr Sims

[4]      There is an order for forfeiture of the sum of $5,960.

Mr Jones

[5]      Police found $8,484.60 in Mr Jones’ room at 129 Grafton Road, Grafton.

This was all in a small zip pouch under the mattress on the bed.

[6]      Mr Tait submitted that “it is unlikely for coins (in the value lower than $1) to be used for” drug dealing.   He submitted: “Given that the various denominations were found inside the same black pouch, it is equally plausible that the prisoner came to possess the sum from places other than the drug dealing.”

[7]      This ignores the fact that almost all of the money was in $20, $50 and $100 notes.  I do not have the particulars, but it appears from the photographs that there may be around 14 or more $100 notes and a substantially greater number of $50

notes.  Given Mr Jones’ personal circumstances, made clear by the evidence, and the offences for which he has been convicted, coupled with the evidence of drug dealing which led to those convictions, I am satisfied that, in the absence of some other evidence, there is only one reasonable inference to draw.  The inference is that all of this money, apart from loose change, was received by Mr Jones in the course of, or consequent upon, the commission of the offences for which he has been convicted, all of which offences come within s 32(3).  There is no other evidence providing any alternative explanation for the source of this money, let alone evidence from which an alternative inference might be drawn.

[8]      The further submissions made by Mr Tait do not in my judgment alter the conclusion just recorded.

[9]      There will be an order that the sum of $8,480 found in Mr Jones’ room at 129

Grafton Road be forfeited to the Crown.

Mr Gu

[10]     When Mr Gu was arrested, Police found $290 in his wallet and $4,000 in

$100 notes in the inside pocket of his jacket.   This immediately followed the manufacture of methamphetamine and the arrest occurred when Mr Gu was seeking to dispose of three 20 litre containers used in the manufacture.

[11]     The Crown submits that the cash was wages paid to Mr Gu by Mr Tang for Mr Gu’s role in assisting in the manufacture of methamphetamine.  For Mr Gu, Mr Edgar submits, in essence, that because Mr Gu was employed by Mr Tang for legitimate purposes around the motel, the Crown has failed to prove that this money is caught by s 32(3).

[12]     I am satisfied that this money does come within the provisions of s 32(3). As with  Mr  Jones,  there  is  a  body  of  evidence  justifying  the  necessary  inference, without any evidence of substance to indicate that an alternative,  and  innocent, inference is open.   The inferences adverse to Mr Gu come, in essence, from the following:  (1)  the  general  background  facts  of  Mr  Gu’s  offending;  (2)  more

particularly, Mr Gu was arrested immediately on conclusion of the final manufacture that occurred at the motel and in which Mr Gu assisted Mr Tang; (3) Mr Gu was leaving the motel to get rid of containers used in the course of manufacture; (4) in Mr Gu’s circumstances, as broadly disclosed in the evidence, $4,000 in cash is a reasonably substantial sum; (5) an illicit source of the money is indicated by the fact that it is all in $100 notes, with that fact obviously being assessed against the general background; (6) Mr Gu had possession of this sum of money in these circumstances in the early hours of the morning; (7) Mr Tang would not have been paying Mr Gu for home handyman work in the circumstances just outlined.

[13]     There is no evidence of consequence advanced by or for Mr Gu indicating a legitimate source for this cash.

[14]     There will be an order forfeiting to the Crown the sum of $4,000 in cash

found in Mr Gu’s jacket. There is no order in respect of the $290.

Mr Wu

[15]     Police found in Mr Wu’s bedroom a small black bag containing $2,000 in cash in $20 notes.  Inside the bag with the cash were two pH testing kits.  The bag was in a wardrobe in which Police also found three cellphones.   Police found a further sum of $1,340, in $20 notes, in a drawer in a desk in Mr Wu’s bedroom.

[16]     In the absence of other evidence, the inference I draw in respect of the $2,000 is that it is money received by Mr Wu in the course of, or consequent upon, the commission of the offences for which he was convicted.   Although there may be suspicions in respect of the other sum, I do not draw the same inference, irrespective of the weight of any other evidence.  I do not accept the Crown submission that it has  been  proved  that  any  of  this  cash  was  held  by Mr Wu  to  purchase  items necessary for manufacturing methamphetamine.

[17]     Numbers of the matters referred to by Mr Niven in opposing the application, which is now confined to the $2,000, are not in my judgment relevant to the issues that need to be determined under s 32.  This applies, in particular, to submissions as

to the relevance of other items found in Mr Wu’s room.   Generally, the sort of evidence that a Court would expect to see to displace the s 32 inference would be adequate proof of a legitimate source of the money, with “legitimate” meaning a source other than one caught by s 32(3).  Depending on the circumstances, this might require reliable documentary evidence establishing a legitimate source.   The only evidence of any moment to which Mr Niven refers is some evidence that Mr Wu did gamble and won and lost reasonably significant sums of money.   There is an intercepted statement by Mr Wu: “I won $1,000 tonight …”

[18]     The question that this evidence raises in my assessment is whether the money found in the drawer in the desk is likely to represent the proceeds of gambling, and possibly other non-s 32 sources of money, with the separate sum of $2,000, in a different location, remaining subject to the initial inference under s 32(3).   I am satisfied that the initial inference under s 32(3) in relation to the $2,000 remains.

[19]     In  consequence  there  is  an  order  that  the  sum  of  $2,000  found  in  the

wardrobe in Mr Wu’s bedroom be forfeited to the Crown.   There is no order in respect of the $1,340.

Woodhouse J