COMMISSIONER OF POLICE v DAVIES [2022] NZHC 2814

COMMISSIONER OF POLICE v DAVIES [2022] NZHC 2814 [31 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-1420[2022] NZHC 2814UNDER Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND BRONSON SIASO DAVIESFirst RespondentAND LA BELLA DONNA CURRINSecond RespondentHearing: 20 October 2022Appearances: R E Budd for ApplicantNo appearance by or on behalf of RespondentsJudgment: 31 October 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 31 October 2022 at 3:30pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] The Commissioner of Police (the Commissioner) applies pursuant to theprovisions of the Criminal Proceeds (Recovery) Act 2009 (the Act) for restraining andcivil forfeiture orders to be made against the first and second respondents in relationto the sum of $6,010 in cash located and seized by police during a search of a BMWmotor car on 12 April 2021, and also the sum of $35,440 in cash located and seized bypolice during a search of the first respondent on 5 May 2021.[2] The Commissioner's on notice application was filed on 22 August 2022.Service of the application and supporting documents was effected by personal serviceon the first respondent on 31 August 2022,1 and by personal service on the secondrespondent on 25 August 2022.2[3] Neither the first nor the second respondent has taken any steps in theproceeding and accordingly the hearing of the Commissioner's application proceedsby way of formal proof.The evidence in support of the application[4] In support of the application the Commissioner primarily relies on the evidenceof Mr Michael Bushell who is a Specialist Investigator attached to the Northern AssetRecovery Unit, Financial Crime Group, of the New Zealand Police.3[5] In his affidavit in support of the application, Mr Bushell says that on 12 April2021, police attended the Park Side Hotel and Apartments at 100 Greys Avenue,Auckland in relation to a matter involving a person believed to be in possession of afirearm. The first and second respondents have been in a relationship for several yearsand occupied an apartment at that address. In the lower car park of the address policelocated a white 2005 BMW motor vehicle registration LEW356 (the BMW). Policewere advised that the respondents were in the BMW, and that the first respondent,Mr Davies, was a patched member of the Killer Beez gang. The attending police then1 Affidavit of service by Michael Bushell (dated 31 August 2022).2 Affidavit of service by Michael Bushell (dated 31 August 2022).3 Affidavit of Michael Bushell in support of on notice application for restraining and civil forfeitureorders (dated 22 August 2022).went to search the BMW to look for firearms. Upon searching a satchel found in thefirst respondent's possession they located:(a) the sum of $6,010 in cash (the BMW cash);(b) three bags containing 0.78 grams of crystal substance, suspected to bemethamphetamine;(c) knuckle dusters; and(d) the first respondent's driver's licence[6] And inside the BMW the police found:(a) four live shotgun rounds;(b) 66.5 grams of cannabis; and(c) digital scales.[7] The police also searched the respondents' apartment and there located:(a) a large glass 'bong' pipe; and(b) a small glass pipe within a sunglasses case.[8] When asked by the police about the items they had found the secondrespondent said that all of the items belonged to her, and that she was taking thecannabis to supply members of her family at a tangi. She said that the three bagscontaining a crystal substance were point bags purchased to celebrate her anniversarywith the first respondent, and the BMW cash was their savings assembled over theprevious 18 months. She told the police that she had taken the shotgun shells fromher brother after becoming concerned about his mental health. The second respondentwas arrested and charged with possession for supply of cannabis, possession ofmethamphetamine and unlawful possession of ammunition.[9] At 7.10 am on 5 May 2021, police attended a residential address in BlockhouseBay Road where the respondents were living together. The police went to the addressin response to an incident during which the first respondent had used a brick to smashthe window of the BMW. Upon arrival at the address, the police were advised that thefirst respondent was in the toilets of the nearby Mobil Service station. Police locatedthe first respondent at the service station and arrested him. When searched by police,the first respondent was found to have the sum of $35,440 in cash (the 5 May cash),and a revolver loaded with six rounds of ammunition, concealed in the crotch of hispants. When asked about the money, the first respondent said that it was his savingsand his great grandmother's inheritance. The first respondent was unable to specifythe amount of cash found in his possession, saying that it was an amount between$25,000 and $40,000. He also told the police that he had found the revolver in a parkthe week before and had kept it with him as he did not want to leave it around hisfamily. He was subsequently charged with wilful damage of the BMW and unlawfulpossession of a firearm.[10] The first respondent is 24 years old and unemployed. He has 39 previousconvictions including for theft, burglary and receiving.[11] Mr Bushell states that his analysis of the respondents' financial affairs hasestablished that they declared minimal income over the tax years 2012 to 2022.However despite this and the first respondent being unemployed Mr Bushell foundthat regular unexplained cash and unexplained payments were made into each of therespondent's bank accounts which cannot be reconciled with their declared income.Mr Bushell's analysis of the first respondent's BNZ and Kiwibank bank accountsshowed that he regularly received payments from and made payments to the secondrespondent. Between 15 August 2015 and 6 August 2021, the first respondent receivedunexplained deposits totalling $27,316.50, comprised of: $19,066 in unexplained thirdparty deposits, and $8,250.50 in cash deposits. Over the same period the firstrespondent withdrew $47,212.30 from his Kiwibank KB523-00 account. Examinationof the first and second respondent's individual Kiwibank accounts, showed a numberof transfers of funds between them, however Mr Bushell says that his analysis showsthat the 5 May cash sum of $35,440 did not come from either of the respondents'respective Kiwibank bank accounts, and he is unable to identify large payments to, orwithdrawals from the first respondent's bank accounts on or around the date when the5 May cash was located, that aligns with what the first respondent told the policeregarding the source of the money found in his possession. Mr Bushell says that the5 May cash likely came from sources outside the banking system.[12] Mr Bushell says that he also investigated and analysed the second respondent'sKiwibank and ASB bank accounts. He found that between 23 January 2016 and6 August 2021 the second respondent received deposits totalling $19,183.48comprised of $10,315.70 in cash deposits and $8,867.78 in unexplained third partydeposits. Over that period the second respondent made withdrawals totalling$27,914.50. He found that the second respondent's bank account records and herlegitimate declared income do not reflect the explanation she gave the police regardingthe source of the BMW cash found on 12 April 2021. And he says that there are nolarge payments or withdrawals from the second respondent's accounts that couldaccount for the first respondent's explanation of the source of the 5 May cash.[13] Mr Bushell says that his investigation and analysis of the first and secondrespondents' financial affairs lead him to conclude that the BMW cash and the 5 Maycash is tainted property, acquired or derived from drug offending, including the saleof cannabis and methamphetamine.Discussion[14] Mr Bushell's unchallenged evidence establishes that the BMW cash waslocated by the police along with a large amount of cannabis and other items associatedwith drug offending, including three 'point bags' of crystals, scales, a knuckle dusterand ammunition. Some of these items were located in a satchel found in the firstrespondent's possession and the second respondent acknowledged to police that all ofthe items they located on 12 April 2021 belonged to her, and that the BMW cash washer and the first respondent's savings. However, the second respondent's explanationdoes not align with her declared income to the Inland Revenue Department or to herbank account records and limited employment history. The 5 May cash located in thefirst respondent's possession was found hidden on his person together with a loadedpistol. His explanation of having found the pistol in a park is wholly implausible, andMr Bushell's analysis of his and the second respondent's bank accounts led him toconclude that there had not been a payment made into his accounts that would beconsistent with the 5 May cash being an inheritance payment or savings.[15] Having regard to the circumstances in which the 5 May cash was found beingsecreted by the first respondent in the crotch of his pants along with a loaded pistol,and the location of drug offending items including scales and drugs, and the fact thatthe first respondent's possession of the sum of $35,440 cannot be reconciled with therespondents' legitimate declared income, and the first respondent not knowing theactual amount of cash he had in his possession, I am satisfied that the two cash sumsI have described as the BMW cash and the 5 May cash, have been proven on thebalance of probabilities to be tainted property, acquired by the respondents or derivedfrom significant criminal activity and from sources outside the banking system,including from the sale and transacting of illegal drugs.[16] I accordingly make an assets forfeiture order pursuant to s 50 of the Act inrespect of the BMW cash and the 5 May cash, and order that the cash sums and all andany accumulated interest thereon, be vested in the Crown absolutely, and is in thecustody and control of the Official Assignee.4_____________Paul Davison J4 Criminal Proceeds (Recovery) Act 2009, s 50(3)(a)–(b).