R v Vivian

[2013] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-063-004690 [2013] NZHC 867

BETWEEN  THE QUEEN Applicant

ANDMARCELLUS EARL VIVIAN Respondent

Hearing:         28 February 2013

Appearances: F Pilditch for Crown

J E Cremer in person (claiming an interest in the property concerned) Judgment:     23 April 2013

(RESERVED) JUDGMENT OF ANDREWS J [Application for forfeiture of vehicle]

This judgment is delivered by me on 23 April 2013 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Gordon Pilditch               :           PO Box 740, Rotorua 3040 (F Pilditch)

Copy to:

J E Cremer

R V VIVIAN HC ROT CRI 2006-063-004690 [23 April 2013]

Introduction

[1]      On  19  December  2006,  Marcellus  Earl  Vivian  drove  a  red  Dodge  Ram vehicle (“the vehicle”) to a tavern at Maramarua, where he completed a transaction for the supply of methamphetamine to Carl Antony Groters and Philip Desmond Robinson.   Mr Vivian had brought the methamphetamine with him in the vehicle. When the vehicle was searched, the Police found $14,800 in cash in it.  The Police subsequently  searched  Mr  Vivian’s  address  and  found  a  clandestine methamphetamine laboratory.

[2]      On 25 June 2008 Mr Vivian entered guilty pleas to one charge of supplying methamphetamine between 12 May and 9 December 2006 (s 6(1)(c) of the Misuse of Drugs Act  1975  (“the Act”)),  and  one  charge  each  of  possession  of  precursor substances and equipment for manufacturing methamphetamine (s 12A(2) of the Act).   Mr Vivian was sentenced in the High Court at Rotorua on 26 September

2008.[1]   I was advised that Mr Robinson and Mr Groters had also entered guilty pleas

to offences under the Misuse of Drugs Act relating to dealing in methamphetamine, and had been sentenced.

[1] R v Vivian HC Rotorua CRI-2006-063-4598, 26 September 2008.

[3]      At the time of Mr Vivian’s sentencing, the Crown sought forfeiture orders pursuant to s 32 of the Act, in respect of equipment and paraphernalia, cash found in the vehicle and on Mr Vivian’s person, and the vehicle.  Forfeiture was not dealt with at sentencing, but was left to one side to be dealt with later.  The sentencing Judge, Heath J, noted that there were disputes as to at least one aspect of the forfeiture applications.[2]

[2] At [10].

[4]      Despite timetable directions as to filing affidavits regarding the forfeiture application, it was not until 10 August 2009 that an affidavit was filed, sworn by Mr John Edwin Cremer on 5 August 2009, in which Mr Cremer claimed to be the owner of the vehicle.  On 22 September 2009, a consent memorandum was filed, in which

Mr Vivian agreed that cash found in the vehicle, and on his person, would be forfeit.

The consent memorandum recorded that the issue of forfeiture of the vehicle would need to be determined by the Court.

[5]      On 28 February 2013 the application for forfeiture of the vehicle finally came on for hearing.   Mr Vivian did not appear, in person or by counsel.   Mr Cremer appeared on his own behalf and was cross-examined on his affidavit.   Mr Cremer also made brief oral submissions.  In those submissions he repeated, in essence, what he had said in his evidence.  It is relevant to record that at the time of the hearing, Mr Cremer was a serving a sentence of imprisonment, having been convicted on charges relating to the possession of firearms, methamphetamine, and equipment for manufacturing methamphetamine, to which he had pleaded guilty.

Forfeiture: relevant legal principles

[6]      Forfeiture was sought under s 32 of the Act. As relevant, s 32 provides:

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.

...

(4)      If on the conviction of any person for an offence against section 6, the  court  is  satisfied  that  any  motor  vehicle,  ...  owned  by  the

convicted  person  (whether  solely  or  as  joint  tenant  or  tenant  in

common with any other person or persons) or in which he has any interest  (whether  pursuant  to  a  hire  purchase  agreement,  leasing

agreement, or otherwise) at the time of his conviction was used by

the convicted person in the commission of that offence (whether or not he was the driver or person in charge), the court shall, unless in the circumstances of the case the court considers that it would be unjust to do so, order, in addition to any other penalty imposed under this Act, that the motor vehicle, ... be forfeited to Her Majesty.

...

[7]      In this case, if this Court is satisfied that Mr Vivian has an interest in the vehicle  (whether  solely  or  in  common  with  another),  and  that  he  used  it  in committing the offence of supplying methamphetamine, a forfeiture order must be made, unless it would be unjust to do so.

[8]     There is no doubt that Mr Vivian used the vehicle when supplying methamphetamine.  In its judgment in R v McCurdy the Court of Appeal held that the phrase “owned by the convicted person ... or in which he has any interest” should be interpreted as requiring “legal or equitable ownership” and that merely being “the keeper, user or possessor” of it was not enough.[3]  The Court said:[4]

As a matter of statutory construction we think that it is plain that Parliament was anxious to ensure that the chattels referred to in subs (4) must be in the legal or equitable ownership of the convicted person before they are liable to forfeiture.  The words “or otherwise” should be construed ejusdem generis, as they were by the District Court Judge, with the words “whether pursuant to a hire purchase agreement, leasing agreement” with the result that before the forfeiture of a chattel can be ordered it must be shown that the convicted person has a legal or equitable interest in it which a Court would recognise: not that he is the mere keeper, user or possessor of it.

[3] R v McCurdy [1983] NZLR 551 (CA).

[4] At 553.

[9]      In his judgment in R v Reti, Robinson J referred to McCurdy when deciding that a car of which Mr Reti had possession, and used as if it were his own, could not be forfeited because his cousin was the registered owner of it.[5]

The history of the vehicle

[5] R v Reti HC Auckland M98/96, 19 November 1996.

[10]     In this case, Mr Cremer claims that he owns the vehicle, and owned it at the time Mr Vivian drove it to Maramarua to sell methamphetamine.  Before considering Mr Cremer’s claim to ownership, it is helpful to set out the history of the vehicle.

[11]     The  vehicle  was  imported  into  New  Zealand  from  the  United  States  of America in April 2004.  It was a left hand drive vehicle and needed to be converted to right hand drive (“the conversion”) before it could registered in New Zealand.  On

24  June  2005  the  importer  sold  the  vehicle  to  Mr  Robinson  (Mr  Vivian’s  co- offender) on an as is where is basis.  It had not been converted to right hand drive. It had not (and has not subsequently) been registered.  In November and December

2005,  and  February  2006,  Mr  Robinson  advertised  the  vehicle  for  sale  on  the

TradeMe website, but it did not sell.   On 22 February 2006, Police spoke to Mr

Robinson at his business address in relation to an unrelated matter.  The vehicle was seen at the address.

[12]     It is not clear how the vehicle came to be in Mr Vivian’s possession.  When spoken to by the Police on 9 December 2006, Mr Vivian identified it as his vehicle. Later he said that it was a friend’s truck which he had helped convert from left hand drive to right hand drive.

[13]     In an affidavit sworn in support of the application for forfeiture, Detective Christine Lunt referred  to text message exchanges between Mr Groters and Mr Robinson, and expressed her opinion that the vehicle was passed to Mr Vivian on 25

March 2006 as part of a drug transaction between Mr Robinson and Mr Vivian.

Mr Cremer’s claim to ownership

[14]     Mr Cremer’s evidence was that he was engaged in buying and selling cars around the time of Mr Vivian’s arrest.   Mr Vivian was a mechanic who had done work for Mr Cremer over the years.  Late in 2006 Mr Cremer had sold a car and was looking  to  buy  another  vehicle.    He  asked  Mr  Vivian  to  identify,  through  his contacts, a truck he could buy.

[15]     Mr Cremer said that Mr Vivian told him about the vehicle.  Mr Vivian said that he could not afford to buy it himself.  Mr Cremer knew that it was a left hand drive vehicle and had to be converted to right hand drive.  Mr Cremer said that he saw the vehicle twice.  The first occasion was about one month before 9 December

2006.  At that time it was up on jacks.  On the second occasion, about two weeks later, Mr Cremer understood that the vehicle had been converted to right hand drive and was driveable, but it was not registered and did not have registration plates.

[16]     Mr Cremer further said that he paid Mr Vivian $10,000 when Mr Vivian first told him about the vehicle.  He said that he had this in cash, from the earlier sale of the car.  The payment of $10,000 was made so that Mr Vivian could buy the vehicle. Mr Cremer said that when he saw the vehicle in Mr Vivian’s garage he gave Mr

Vivian a further $17,000 to pay for the conversion.  This payment was funded by the sale of a second car.

[17]     Mr Cremer took no steps, himself, to arrange registration of the vehicle.  He said that it was Mr Vivian’s responsibility, as a mechanic, to get the vehicle up to New Zealand standards, to get it roadworthy, and to register it.  Mr Cremer further said that Mr Vivian was to have first right of refusal to buy the vehicle outright, or on sell it, and then Mr Cremer would pay Mr Vivian for the work done.  When asked if he had talked to Mr Vivian about how Mr Vivian had come into possession of the vehicle, Mr Cremer’s response was that it was “something to do with a car dealer that [Mr Vivian] knew”.  Mr Cremer said he had read transcripts of text messages, but knew none of those people.  He only dealt with Mr Vivian.

[18]     Mr Cremer was aware of Mr Vivian’s arrest and sentencing.  He said that Mr Vivian had told him that the vehicle had been taken by the Crown, but led him to believe that he would be reimbursed.  Mr Cremer accepted that after Mr Vivian was sentenced, he did nothing further until his affidavit was filed in August 2009.  He then heard nothing further about the matter until he was told of the hearing in his Court. He assumed that the vehicle had been forfeited.

Submissions

[19]     Mr Pilditch submitted that Mr Vivian was the only person who owned or had an interest in the vehicle, and that the Court must, therefore, make an order for forfeiture.  He submitted that it was evident from the text message exchanges that Mr Vivian had obtained it by way of a trade for methamphetamine.

[20]     Mr Pilditch submitted that there must be a real issue as to Mr Cremer’s credibility.   He submitted that Mr Cremer’s evidence that Mr Vivian offered the vehicle to him because Mr Vivian could not afford to buy it himself was undermined by, first, the fact that Mr Vivian obtained it from dealing in methamphetamine, and secondly, the fact that $14,800 in cash was found in the vehicle on 9 December 2006.

[21]     Mr Pilditch further submitted that it defies credibility that Mr Cremer had paid out $27,000 in a transaction to buy the vehicle and pay for the conversion, but did not make any claim to ownership, or take any steps to oppose forfeiture, until three years after Mr Vivian’s arrest.

[22]     Mr Pilditch accepted that the Court should not make an order for forfeiture if it would be unjust to do so.  However, he submitted, the mere presence of another interest in the vehicle (if the Court accepts that Mr Cremer has an interest in it) does not make it unjust to order forfeiture in this case.  On the issue of whether it would be unjust to order forfeiture, Mr Pilditch referred first to the manner in which Mr Vivian became the owner of the vehicle, having traded drugs for it.  Secondly, Mr Pilditch submitted that even if Mr Cremer did have an interest in the vehicle, that interest had arisen in the context of trading in methamphetamine.   In making this submission, Mr Pilditch referred to Mr Cremer’s own conviction history.

Discussion

Did Mr Vivian own or have an interest in the vehicle?

[23]     The first issue is whether Mr Vivian owned or had an interest in the vehicle, at the time of his offending.  In this regard, I find that the text message exchanges are (not unsurprisingly) somewhat equivocal.

[24]     It is clear that Mr Robinson refers to the vehicle (as “the truck”) in messages to Mr Groters, who has a “m8” who is “keen az”, and who has been told that it will cost “about 10k” to make it right hand drive. Those messages extend over the period from 11 to 19 March 2006, on which day Mr Robinson says that he has “left truck where me was”.

[25]     Between 14 and 25 March 2006, Mr Robinson and Mr Groters also refer in the text message exchanges to what appears to be a batch of methamphetamine that was too wet.  The first is on 14 March when after exchanges about bringing the truck “up”, Mr Robinson says “and dry the thing”.  On 17 March the exchanges start with Mr Robinson telling Mr Groters “u beta tell him hange it out longa me nt happy” and

that he is “ova all me down half that bullshit”.  Mr Groters says in response that he “lost over 14”.   Mr Robinson says “me checked when got him allgood but had 2 hang it out u no wat i meen”, and “was 2 soggy”.  Mr Robinson then says “check u talked u m8”, to which Mr Groters responds “not 2day i tex him a bit later”.  The exchanges continue about arrangements to meet.

[26]     The  exchanges  on  18  March  all  relate  to  Mr  Robinson  and  Mr  Groters arranging to meet, and waiting for the “m8” to arrive.  On 19 March, Mr Robinson says he will “leave truk here” and check flights.  He later says “me left truck where me was did u m8 say thing 2 u bout fix up rfta i left”, to which Mr Groters responds “na he will take truck i will tell him 2 see ya right mate”.

[27]     On 21 March, Mr Robinson asks “heard frm u m8 yet bro” and Mr Groters responds “tex ed him this mornin”.  On 22 March, Mr Robinson asks “wat happend” and Mr Groters responds “u mind reader just goin 2 ring now”.  On 24 March, Mr Robinson asks “did u speak m8” and on 25 March he asks “wats da haps”, and “wat the go”.  Mr Groters responds “he makin shore all 2 your standard he be here at 7 at the latest”.

[28]     Accepting that Mr Groters’ “m8” was Mr Vivian, and that the references to something being “2 soggy” and needing to be  hung out longer (to dry) are to wet methamphetamine previously supplied by Mr Vivian, I accept that the text exchanges give some support for concluding that Mr Vivian was given the vehicle (which Mr Robinson wanted to sell) in exchange for methamphetamine, and that it was made clear to Mr Vivian that he had to “see [Mr Robinson] right” and to make sure another batch of methamphetamine was up to standard.

[29]     Accordingly, while the text message exchanges are not entirely clear, I accept on the balance of probabilities that Mr Vivian obtained the vehicle in exchange for methamphetamine, and was therefore the owner, or had an interest in it, at the time of his offending.

Did Mr Cremer own or have an interest in the vehicle?

[30]     It is necessary now to consider whether Mr Cremer owns the vehicle, having bought it from Mr Vivian.

[31]     The only evidence before me was from Mr Cremer.  There are no electronic ownership records, or official registration.   However, Mr Cremer’s evidence was consistent in his affidavit and under cross-examination.  His account of having used Mr Vivian to work on cars previously, then asking him to locate a vehicle, also has an internal consistency.  Further, while Mr Cremer’s delay in claiming an interest in the vehicle may raise a suspicion, Mr Cremer gave a plausible explanation for the delay.

[32]     On the basis of Mr Cremer’s evidence, I am satisfied on the balance of probabilities that Mr Cremer entered into an agreement to buy the car from Mr Vivian, and pay $27,000 to Mr Vivian for the purchase and  conversion.   I am satisfied that Mr Cremer has been the owner of the vehicle since approximately early November 2006.  On this basis, Mr Vivian has no relevant “interest” in the vehicle under s 32(4) of the Act.

Would it be unjust to order forfeiture?

[33]     As noted earlier, Mr Pilditch submitted that even if the Court were to find that Mr Cremer has an interest in the vehicle, that would not be sufficient grounds to make it unjust to order forfeiture in this case.  This was because of the manner in which Mr Vivian obtained the vehicle, its use in Mr Vivian’s offending, and Mr Cremer’s own conviction history.

[34]     I have concluded that it would be unjust to order forfeiture.   There is no evidence on which I could conclude that Mr Cremer’s purchase of the vehicle was other than legitimate, or that he was aware that Mr Vivian was using it for methamphetamine transactions.

[35]     Further, although Mr Pilditch referred to Mr Cremer’s “conviction history”, Mr Cremer’s evidence was that he bought the vehicle from Mr Vivian “prior to my being tied up in this whole business that I’m incarcerated for”.   No evidence was presented as to any conviction history from before the purchase.   I am therefore unable to conclude that there are any grounds relating to Mr Cremer which would justify my ordering forfeiture.

Result

[36]     I decline to order forfeiture of the vehicle.

Andrews  J