COMMISSIONER OF POLICE v SWAN [2022] NZHC 1963

COMMISSIONER OF POLICE v SWAN [2022] NZHC 1963 [10 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000137[2022] NZHC 1963BETWEEN COMMISSIONER OF POLICEApplicantAND JACOB RONALD JAMES SWANFirst RespondentAND JOSHUA GRAEME ROCHFORDSecond RespondentAND MIKAYLA NGAIRE HENDERSONThird RespondentHearing: 9 August 2022Appearances: S J Mallett for Applicant (by VMR)No appearance for RespondentsJudgment: 10 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 10 August at 10.00 am pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The Commissioner of Police applies for an assets forfeiture order pursuant tos 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act).[2] The application relates to $47,140 in cash (the specified property) found asfollows:(a) $10,000 in cash located inside vehicle registration KZK452; and(b) $37,140 in cash located in a storage unit at 832 Main North Road,Woodend, Christchurch.[3] The Commissioner contends that the cash is the proceeds of methamphetamineoffending conducted by the three respondents and is tainted property.[4] The three respondents have indicated either directly to the court or throughcounsel that they do not intend taking any steps in relation to the application and haveeach expressly disavowed any interest in the specified property.Assets forfeiture order[5] Section 50 of the Act mandates the Court to make an assets forfeiture order ifcertain prerequisites are met:50 Making assets forfeiture order(1) If, on an application for an assets forfeiture order, the High Court issatisfied on the balance of probabilities that specific property istainted property, the Court must make an assets forfeiture order inrespect of that specific property.(2) Subsection (1) is subject to section 51.(3) The Court must specify in an assets forfeiture order the property towhich the order applies and that the property—(a) vests in the Crown absolutely; and(b) is in the custody and control of the Official Assignee.(4) Despite subsection (1), the Court may not make an assets forfeitureorder in relation to property that no person has claimed an interest in,unless the Court is satisfied, on the balance of probabilities, of thefollowing additional matters:(a) that a restraining order was earlier made in relation to thesame property; and(b) that the restraining order has been in place for a period of atleast 1 year; and(c) that the Commissioner has contacted or made all reasonableefforts to contact any person the Commissioner believes mayhave an interest in the property.(5) If any property that is land is vested in the Crown absolutely as aconsequence of an assets forfeiture order made under subsection (3),an interest recorded on the title to the land that is not affected by theassets forfeiture order is not extinguished.[6] The specified property in this case has been restrained since 23 June 2021. Noperson has approached the Commissioner making enquiries regarding the whereaboutsof the specified property nor claiming an interest in the property.[7] The task before the Court is to consider whether the specified property istainted property within the definition set out in s 5 of the Act. If the Court is satisfiedon the balance of probabilities that it is tainted property the forfeiture order must bemade. An application for an assets forfeiture order can be determined by way offormal proof.1$10,000 in cash located inside vehicle registration KZK452[8] On 10 January 2022 at 12.55 am, police commenced pursuit of a ToyotaHighlander vehicle with registration KZK452 after the driver failed to stop for police.The vehicle was registered to Omega Car Rentals. The pursuit was abandoned. Atabout 2.39 am that same morning, the vehicle KZK452 was located in the drivewayof an address on Hills Road, Christchurch. Located inside the vehicle was a rifle,ammunition, a set of electronic scales, 'point bags', a large number of cell phones andthe $10,000 in cash.[9] In the back of the vehicle was mail addressed to the first respondent. In thefront passenger footwell was a purse belonging to the third respondent, containing her1 Commissioner of Police v Mauga [2015] NZHC 1071.driver's licence and bank cards. Also located in the vehicle was an empty hotel roomcard that had the room number 702 Fino Hotel and Suites. Enquiries conducted withthe hotel confirmed that a booking had been made by the second respondent. Thesecond respondent had checked into the room with another male and they parked twovehicles, one of which had the number place KZK452.[10] Further enquiries conducted by the police established that vehicle KZK452 wasregistered as belonging to Omega Car Rentals. The vehicle had been hired by VanessaStokes-Anisy. The address and email she gave was linked to the second respondent.Ms Stokes-Anisy advised police that the second respondent had asked her to hire thevehicle for him in exchange for 0.5 gram of methamphetamine. He gave her a card topay for the vehicle. She uplifted the vehicle and dropped it off to him.Ms Stokes-Anisy advised that the second respondent is a methamphetamine dealer.[11] A forensic examination of the vehicle KZK452 located the second respondent'sfingerprint on the front passenger window. Thus all three respondents can be linkedto the vehicle and the cash inside the vehicle, notwithstanding that they now disavowany interest in the property.[12] The Court can be satisfied on the balance of probabilities that the cash wasderived from significant criminal activity (ie methamphetamine dealing) and istherefore tainted for the following reasons:(a) it is unlikely that a person would be driving around with $10,000 incash at 2.39 am in the morning for legitimate purposes – it is morelikely the proceeds of late-night methamphetamine dealing;(b) the cash was found alongside firearms and a significant quantity ofammunition as well as 'point bags' and electronic scales – these areknown indicia of drug dealing;(c) on 24 February 2022 the first respondent pleaded guilty to possessionof methamphetamine for supply;(d) on 20 July 2021 the second respondent pleaded guilty to 23 charges ofsupplying methamphetamine and possession of utensils formethamphetamine use;(e) the vehicle in which the cash was found was a rental and was hired bya third party for the second respondent in exchange for 0.5 gram ofmethamphetamine – this is consistent with the second respondentwishing to remain anonymous due to his participation in illicit activity;and(f) an analysis of text data located on numbers attributed to the threerespondents evidenced multiple examples of methamphetaminedealing.[13] For these reasons I find on the balance of probabilities that the specifiedproperty is tainted property and must be forfeited.$37,140 in cash located in a storage unit at 832 Main North Road, Woodend,Christchurch[14] On 7 February 2020, police executed a search warrant at a storage unit at 832Main North Road, Woodend, Christchurch. The purpose of the warrant was to locatestolen property and to arrest the first respondent for breaching his parole.[15] The police had reason to believe that the storage unit had been booked under afalse name and that the rent for the unit was being paid for by someone called "Jake",i.e. the first respondent. Police were able to identify the first respondent coming andgoing from the unit using CCTV footage.[16] During the execution of the warrant, police located the following:(a) a bag containing $37,140 in cash; and(b) another bag containing a set of electronic scales, a grey telephoneaddress book with names and amounts recorded under the alphabeticaltabs (i.e. a 'tick list'), three cell phones, a glass pipe, an orange walletcontaining a large quantity of small plastic zip-lock bags and propertystolen from various burglaries around Christchurch and NorthCanterbury.[17] In total there were 12 cell phones and six SIM cards located at the property.The first respondent's fingerprints were later located on one of the phones.[18] The Court can be satisfied on the balance of probabilities that the $37,140 incash located at the storage unit was derived from significant criminal activity (i.e.methamphetamine dealing) and is therefore tainted property for the following reasons:(a) it is unlikely that a person would be keeping $37,140 in cash in astorage unit if the money was otherwise legitimate – it is reasonable toassume that legitimate funds of that quantity would be deposited into abank account;(b) the cash was found alongside indicia of drug offending, including theproperty listed at [16](b);(c) the storage unit can be linked to the first respondent who, on24 February 2022, pleaded guilty to possession of methamphetaminefor supply;(d) an analysis of text data located on a number attributed to the firstrespondent evidenced multiple examples of methamphetamine dealing;and(e) an analysis conducted by police of bank accounts belonging to the firstrespondent for the period 1 January 2017 to 18 May 2020 shows thathe had no income from a legitimate salary or wages over that period,rather there were multiple cash deposits into his account consistent withmethamphetamine dealing.[19] For those reasons I find that the $37,140 in cash is tainted property as that isdefined in s 5 of the Act and must be forfeited.Result[20] The application for a forfeiture order is granted.[21] Counsel shall file orders for sealing in accordance with this judgment.Doogue JSolicitors:Crown Solicitor, Christchurch