THE COMMISSIONER OF POLICE v BRIDGER [2021] NZHC 1360

THE COMMISSIONER OF POLICE v BRIDGER [2021] NZHC 1360 [10 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-000738[2021] NZHC 1360UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application pursuant to ss 43, 44 and 52BETWEEN THE COMMISSIONERTHE NEW ZEALAND POLICEApplicantAND AAREN TEWIREMU BRIDGERFirst RespondentAND BILLIE-KAYE BRIDGERSecond RespondentHearing: 19 May 2021Appearances: S B McCusker for the ApplicantNo appearance for the RespondentsJudgment: 10 June 2021JUDGMENT OF NATION J[1] The Commissioner has claimed the respondents (Mr Bridger and Ms Bridger)1were involved in significant criminal offending, namely the possession and sale ofmethamphetamine. Through these proceedings, under the Criminal Proceeds(Recovery) Act 2009 (the Act), the Commissioner sought the forfeiture of three HarleyDavidson motorcycles and a 1985 Chevrolet Silverado 10 utility vehicle.1 I use that name because that is how the respondents have been named in these proceedings. Inrelated criminal proceedings, the second respondent, as defendant, was named as Billie-Kaye Lake- R v Billie-Kaye Lake [2020] NZDC 13802.Procedural background[2] In September 2017 the Commissioner filed an application for profit forfeitureorders. The Commissioner asked the Court to order the value of the benefit obtainedfrom the respondents' significant criminal offending was $96,920. The property to berealised was three Harley Davidson motorcycles, a Chevrolet and $1,310 in cashseized from the respondents in August 2017.[3] On 15 November 2017 both Mr and Ms Bridger, through counsel, advised thatthey opposed the forfeiture application.[4] On 1 March 2018 both respondents confirmed via counsel that they opposedthe application but agreed for these proceedings to await the outcome of the criminalproceedings.[5] On 6 August 2018 Mr Bridger was convicted and sentenced formethamphetamine offending.[6] On 22 March 2019 the Commissioner filed an application for sale orders.Ms Bridger, through counsel, filed an opposition to the sale order application. InAugust 2019 Ms Bridger's criminal counsel advised she did not have instructions fromMs Bridger to act in the civil proceedings.[7] In a memorandum to the Court of 29 November 2019 counsel for theCommissioner advised he had been contacted by a lawyer from the PoriruaCommunity Law Centre. The lawyer advised that Ms Bridger continued to opposesale orders over the Chevrolet but no longer opposed sale orders for the HarleyDavidson motorcycles. The Commissioner agreed the application for a sale order overthe Chevrolet and the forfeiture application would be adjourned pending the outcomeof Ms Bridger's criminal trial to be held on 9 March 2020.[8] In a memorandum of 10 June 2020, counsel for the Commissioner noted MsBridger's criminal proceedings had been resolved and the forfeiture application couldproceed to hearing. The Commissioner indicated at the next call of the matter it wouldask the Court to set down directions for the hearing of the forfeiture application orseek orders by way of a formal proof. The proceedings were adjourned to 13 July2020 to provide the respondents sufficient time to instruct counsel or advise theCommissioner on their position.[9] On 9 July 2020, Ms Bridger was served with a copy of that memorandum at43 Arawhata Road, Paraparaumu with an email record that the Registrar of the HighCourt had adjourned the proceedings for call on 13 July 2020 and had made directionsas sought in the memorandum. Ms Bridger thus had information that theCommissioner may seek to proceed with the applications by formal proof.[10] In a memorandum of 10 July 2020, counsel for the Commissioner said theproceedings would be called on 13 July 2020 but they had been unable to serve MrBridger due to his lack of cooperation. If on 13 July 2020 either respondent made anappearance and indicated they intended to oppose the forfeiture and sale order, theCommissioner indicated he would seek timetabling directions for the hearing of theiropposition. If neither made an appearance, the Commissioner would seek a furtheradjournment and, if the respondents again failed to appear, asked that the applicationbe heard by way of formal proof on 3 August 2020.[11] On 13 July 2020, the Court issued a minute noting neither respondent hadappeared in the chamber list but Mr Bridger had only been served on 12 July 2020.He directed the respondents were to be notified of the next call on 3 August 2020.[12] On 17 July 2020, Ms Bridger was served with a copy of the 13 July 2020minute. She was also convicted and sentenced for the methamphetamine offendingon the same date.[13] In a memorandum dated 31 July 2020 counsel for the Commissioner andMr Bamford as counsel for Mr Bridger, advised the Court the only restrained propertynow in issue was the 1990 Harley Davidson FXRS-SP registration number B3FQY.Mr Bamford advised the Court and the Commissioner that he understood Ms Bridgerwas unlikely to play a further part in the proceedings. By consent, the Court madetimetabling directions for Mr Bridger to file further affidavits. Also by consent, theCourt made sale orders for two of the Harley Davidson motorcycles and the Chevrolet.[14] Copies of the sale orders for both Mr Bridger and Ms Bridger were served onMr Bridger at 43 Arawhata Road on 9 September 2020. The police officer serving thedocuments noted that Ms Bridger was inside the building when the documents werehanded to Mr Bridger. The officer asked Mr Bridger to give Ms Bridger a copy of thedocuments.[15] Mr Bridger did not file affidavits in opposition as directed by 26 October 2020,then by 22 January 2021 as he was directed to do.[16] On 15 March 2021 the Court issued a Minute directing the proceedings be setdown for formal proof. Mr Bridger was required to file any evidence in opposition by12 April 2021. He was Court-directed that if he did not do so he was not to take anyfurther step in the proceedings without leave. Mr Bridger has taken no further steps.[17] On 5 May 2021, Mr Bridger and Ms Bridger were each served separately witha copy of the Commissioner's submissions and a supplementary affidavit for theCommissioner with notice that the proceedings had been set down for hearing in theWellington High Court on 19 May 2021 at 10.00 am. With the documents was a letterto each of them separately in which counsel for the Commissioner said that based onthe lack of response to previous Minutes from the Court it was understood that eachof them no longer intended to oppose the application. Counsel stated, if that was nottheir intention, they should contact counsel urgently. There was no such response.[18] The application was called in the High Court at 10.00 am on 19 May 2021. MrBridger did not appear either personally or through counsel.[19] Ms Bridger was present in court when the hearing began. She told the Courtthat she had just learnt the Chevrolet had been sold and she had been unaware of this.I then asked counsel for the Commissioner to summarise relevant aspects of thebackground. It was apparent from what he said that both Mr Bridger and Ms Bridgerhad ample opportunity to file notices of opposition to the profit forfeiture applicationand affidavits. They had not done so. He referred to Mr and Ms Bridger being servedwith the application for sale orders in late July 2020, of Mr Bridger re-engagingcounsel at that time but Ms Bridger making no contact.[20] After that, I told Ms Bridger that, with that background, the Court wasintending to proceed with the hearing with the evidence before it. I asked her if shehad anything to say as to that.[21] Ms Bridger said she was "a little bit interested" to know when the sale ordershad been served and at what address.[22] Counsel for the Commissioner provided the Court with the job sheet of theinvestigator who had served the documents. This included details as to how thedocuments were delivered to Mr Bridger at 43 Arawhata Road, with Ms Bridgerpresent and aware of what the investigator was doing. I read her some of the detailsfrom that job sheet.[23] Having done that, I asked her if she had anything further to say. She did not.I then told the parties the hearing of the application would proceed on the evidencebefore the Court.Analysis[24] Section 53 of the Act provides:53 Value of benefit presumed to be value in application(1) If the Commissioner proves, on the balance of probabilities, that therespondent has, in the relevant period of criminal activity, unlawfullybenefited from significant criminal activity, the value of that benefit ispresumed to be the value stated in—(a) the application under section 52(c); or(b) if the case requires, the amended application.(2) The presumption stated in subsection (1) may be rebutted by therespondent on the balance of probabilities.[25] Under s 55(1) of the Act:55 Making profit forfeiture order(1) The High Court must make a profit forfeiture order if it is satisfied on thebalance of probabilities that—(a) the respondent has unlawfully benefited from significant criminalactivity within the relevant period of criminal activity; and(b) the respondent has interests in property.[26] "Benefit" means gross receipts rather than profits.2 The Act's definition of"benefit" includes "proceeds and property"3 and specifies that any "expenses oroutgoings used in connection with [qualifying significant criminal activity] must bedisregarded for the purposes of calculating the value of any [qualifying] property,proceeds, or benefits".4Required approach[27] As Lang J identified in Pulman v Commissioner of Police, I must firstdetermine if the Commissioner has proved, on the balance of probabilities, that Mrand Ms Bridger have unlawfully benefitted from significant criminal activity over therelevant period.5 If I am satisfied they have unlawfully benefitted, the value of thebenefit is presumed to be the value prescribed by s 53(1). This value can be rebuttedby Mr and Ms Bridger on the balance of probabilities.[28] Second, I must determine the maximum recoverable amount by taking thevalue of the benefit and deducting the value of any property already forfeited to theCrown via forfeiture orders made in relation to the same criminal activity that thisforfeiture application relates.[29] Third, I must determine whether property should be excluded because unduehardship is likely to be caused if such property was realised.[30] Finally, I must then make a profit forfeiture order under s 55(1) if I am satisfied,on the balance of probabilities, that Mr and Ms Bridger have an interest in the property.2 Cheah v Commissioner of Police [2020] NZCA 253 at [24], citing R v Pedersen [1995] 2 NZLR386 (CA) at 391.3 Criminal Proceeds (Recovery) Act 2009, s 5(1).4 Section 6(3); Cheah v Commissioner of Police, above n 2, at [24].5 Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011 at [10]−[13].Have the respondents benefitted from significant criminal activity and, if so, by howmuch?[31] The evidence for the Commissioner was set out in affidavits of Mr Beattie, afinancial investigator attached to the Central Asset Recovery Unit of the New ZealandPolice.[32] In December 2016 the Police began an investigation (Operation Flag) into thesale and supply of methamphetamine by Mr Bridger. The operation ended on 7 August2017.[33] On 8 August 2017 Mr Bridger was charged with two charges of possession ofmethamphetamine for supply, one charge of conspiring to supply methamphetamine,and one charge of supplying methamphetamine.[34] Also on 8 August 2017, Ms Bridger was charged with one offence of supplyingmethamphetamine and two other charges jointly with her daughter of offering tosupply methamphetamine.Involvement in significant criminal activity[35] The relevant period of criminal activity here means the period between 5September 2012 and 5 September 2017 when the application for a profit forfeitureorder was made. The Commissioner's application was however based on the evidencethe Police obtained from Operation Flag. This was an investigation into the suspectedinvolvement of Mr Bridger in methamphetamine dealing. The investigation began inDecember 2016 and ended on 7 August 2017.[36] The charges on which Mr Bridger and Ms Bridger were convicted referred toall carry a maximum term of imprisonment of five years or more and constitute"significant criminal activity" for the purposes of s 6 of the Act.[37] On 6 August 2018, Mr Bridger was convicted and sentenced on charges ofconspiracy to supply class A, supplying methamphetamine, offering to supplymethamphetamine and possession of methamphetamine for supply. He was sentencedto six years' imprisonment. With his guilty pleas he accepted that between 16 Juneand 1 August 2017 he was involved in sourcing ounces of methamphetamine for$10,000, and on-selling them for a profit margin of $4,000. Some of the sales were tofamily members who would assist in on-selling in smaller amounts. Mr Bridger alsoon-sold to his own customers. He accepted he was in possession of or dealing in 250grams of methamphetamine over that timeframe. The conspiracy was with Ms Bridgerand their daughters.[38] The Operation Flag investigation had: identified that [Bridger] would travel and source methamphetamine beforesupplying his wife Billie-Kaye [Bridger] and their twin daughters Sony-LeeLake and Kaydan-Kaye Lake who in turn would on supply themethamphetamine to a variety of customers. [Bridger] would also have hisown customers that he would supply, including his close associate David[Young].[39] Police analysis identified the twins would sell in amounts ranging from one-quarter of a gram for $200, half a gram for $320 to $350 and a whole gram for $700.Ms Bridger offered a whole gram for $600. In an intercepted phone conversation of 1July 2017 Ms Bridger was recorded saying to Mr Bridger "you'll have nothing if Ididn't sell all your crack". Specific phone calls or texts were obtained in which MsBridger offered to supply methamphetamine to specific people. The Police alsointercepted communications in which Mr and Ms Bridger's twin daughters offeredmethamphetamine.[40] On 17 July 2017, following guilty pleas, Ms Bridger was convicted andsentenced on one charge of conspiracy to supply methamphetamine and one charge ofoffering to supply methamphetamine. She was sentenced to nine months' homedetention and 100 hours' community work. In the sentencing the Judge indicated thefacts established that she was "much more than a low-level dealer".6[41] Through the summary of facts to which Ms Bridger pleaded guilty, sheaccepted the general categorisation of her involvement in the supply and distributionof methamphetamine as had been set out in the summary of facts for Mr Bridger.6 R v Billie-Kaye Lake, above n 1, at [11].[42] The Commissioner's application was based on the evidence summarised in thesummary of facts accepted by Mr and Ms Bridger with their guilty pleas. Thissummary established they were involved jointly in significant criminal offending andthis led to them jointly benefiting from that criminal offending.[43] Here the Commissioner's application identified the benefit and maximumrecoverable amount obtained from significant criminal activity as $96,920.[44] In his first affidavit dated 4 September 2017, Mr Beattie calculated theminimum total unlawful benefit that could be attributed to Mr Bridger with regard tothe methamphetamine offending identified during Operation Flag as $95,420 being:(a) Five ounces of methamphetamine purchased byMr Bridger on 15 July 2017$50,000(b) Two ounces sold between 15 July 2017 and 7August 2017$28,000(c) Cash deposits to son's account in 2016 $13,400(d) Cash deposits into own account in 2016 $4,020[45] I accept Mr Beattie's evidence that his calculation of the benefit was likely tobe conservative. In the summary of facts for his offending Mr Bridger admitted tobeing in possession of or dealing in at least 250 grams or 8.8 ounces ofmethamphetamine during the course of Operation Flag. The value ofmethamphetamine through on-sales of it was $14,000 an ounce. On that basis, he hadbeen in possession of or dealt with methamphetamine with a total value of $123,200.[46] Ms Bridger's unlawful benefit was estimated by Mr Beattie at $1,500.[47] The value of the benefit obtained by each of Mr Bridger and Ms Bridger ispresumed to be that stated in the Commissioner's application, unless rebutted by themon the balance of probabilities. Accordingly, Mr and Ms Bridger had to adduceevidence which established, on the balance of probabilities, what the actual amount oftheir benefit was.7 No evidence was put before the Court from either Mr Bridger or7 Cheah v Commissioner of Police, above n 2, at [48].Ms Bridger to rebut the value of the benefit as stated in the Commissioner'sapplication of $96,920.[48] The total value of the benefit obtained by both of them from significantcriminal activity was thus $96,920.The maximum recoverable amount[49] No asset forfeiture orders have been made in the proceeding. Accordingly, themaximum recoverable amount is $96,920.Exclusions based on undue hardship[50] Neither Mr Bridger nor Ms Bridger have made an application for relief fromthe forfeiture on this ground under s 67 of the Act.Does the respondent have interests in the property?[51] Once the three previous steps have been taken, the Court must make a profitforfeiture order if satisfied, on the balance of probabilities, that the respondent hasinterests in property. In the context of this case, it is relevant that a respondent to anapplication for a profit forfeiture order may be regarded as having an interest inproperty if he or she has effective control over it, even if no legal or equitable interestis involved.8 In that regard the Court may have regard to family and domesticrelationships between persons having an interest in the property and any other person.9[52] In the profit forfeiture application, the Commissioner identified the property inwhich Mr and Ms Bridger had interest as:(a) A 1987 Harley Davidson FL FLXR motorcycle, registration B1ESW (theHarley Davidson FLXR) registered in Mr Bridger's name since 19 August2014.8 Criminal (Proceeds) Recovery Act, s 58.9 Section 58(3)(c).(b) A 1994 Harley Davidson 95 Road King motorcycle, registration A4QZN(the Harley Davidson Road King) registered in Mr Bridger's friend'sname, Joanne Marie Reilly, since 12.28 pm on 9 August 2017.(c) A 1990 Harley Davidson FXRS-SP motorcycle, registration B3FQY, (theHarley Davidson FXRS-SP) registered in Mr Bridger's friend's name,Fern Dickson, since 12.22 pm on 9 August 2017.(d) A 1985 Chevrolet Silverado 10 Utility vehicle, registration FGN760 (theChevrolet), registered in Ms Bridger's name since 4 August 2017.(e) $420 cash seized from Mr Bridger on 9 August 2017 and currently in thepossession of Nelson Police following his arrest.(f) $890 cash seized from Ms Bridger's wallet on 9 August 2017 and currentlyin the possession of Wellington Police following her arrest.[53] Section 83 of the Act requires the Official Assignee to dispose of the propertyspecified in the property forfeiture order and to apply the proceeds in the manner setout in s 83. In general terms the Official Assignee has to apply the proceeds to meetthe Official Assignee's costs, for the payment of legal aid granted to the former interestholder, reparation and then to the Crown to the extent there is money remaining up tothe maximum recoverable amount.10 Here, that amount is $96,920.[54] The effect of ss 55 and 83(1) is that if a respondent has an interest in propertyand it has been established on the balance of probabilities that the respondent hasunlawfully benefitted from significant criminal activity within the relevant period ofcriminal activity, the Court must order that the specified property the respondent hasan interest in is to be sold and the proceeds be applied in terms of s 83.[55] In Mr Beattie's first affidavit he set out the evidence the Commissioner reliedon to establish Mr Bridger's interest in and control of the Harley Davidson FLXR andthe Harley Davidson Road King. Mr Bridger filed no affidavit to contradict that10 Section 54.evidence. Through counsel, he consented to sale orders for those two motorcyclesconsistent with his accepting that he owned them and/or had control of them.[56] The only motorcycle which was not the subject of the earlier sale order was the1990 Harley Davidson FXRS-SP motorcycle, registration B3FQY.[57] It was registered in Mr Bridger's name from 27 July 2016 through to 9 August2017. Two days after Mr Bridger's arrest, on 9 August 2017, the motorbike wasregistered in the name of the partner of an associate of Mr Bridger. On 11 August2017, the motorbike was located at the associate's address along with the HarleyDavidson Road King which had been registered in Mr Bridger's name from20 October 2006 through to 9 August 2017. This was one of the motorbikes whichMr Bridger agreed could be subject to the sale order. Mr Bridger's associate advisedthe Police he was looking after the Harley Davidson Road King and the HarleyDavidson FXRS-SP for Mr Bridger.[58] In his first affidavit Mr Beattie said, the fact the change in the registered ownerof the Harley Davidson FXRS-SP was made two days after Mr Bridger's arrest,suggested the change in registered owner was made to try and prevent the Policeseizing the motorcycle through proceedings such as these. Mr Beattie referred toinformation that on 20 October 2016 Mr Bridger's brother was using the motorcycleoutside the Nelson Courthouse. The brother told the Police the motorcycle belongedto Mr Bridger.[59] Mr Bridger has not put any evidence before the Court to suggest that he didnot have an interest in this motorcycle.[60] The Commissioner has thus satisfied me on the balance of probabilities thatMr Bridger had, during the relevant period of criminal activity, an interest in thisproperty. Accordingly, s 55(2)(c) obliges the Court to specify this as property whichis to be disposed of in accordance with s 83(1).[61] Ms Bridger had filed a notice of opposition to the making of a sale order as tothe Chevrolet but no affidavit to support that opposition. She had not filed anyaffidavit in opposition to the profit forfeiture application but referred to the Chevroletas being property she had an interest in.[62] The registered person history for the vehicle represented the Chevrolet wasregistered on 4 May 2016 to Ms Bridger, that it was registered on 12 May 2016 to MrBridger. On 5 July 2016 it was registered into the name of Vere Lake at approximatelythe same address used by Ms Bridger when the vehicle was registered in her name. Itwas registered in Ms Bridger's name an hour after it was reported stolen.[63] The summary of facts for the admitted offending of Ms Bridger referred to fivedwellings at Repo Street, Paraparaumu including the numbers 9B, 11, 14, 14A and14B and these properties being owned by Ms Bridger's immediate family membersand as having been used by Mr Bridger, Ms Bridger and their twin daughters over anumber of years.[64] When in Ms Bridger's name, it was registered to both 14A and 14 Repo Street,Paraparaumu, in Ms Vere Lake's name it was registered to 14B Repo Street,Paraparaumu.[65] The Chevrolet was used by Mr Bridger on Monday, 7 August 2017 in Nelsonwhen he was stopped and arrested by the Police.[66] Through his counsel, Mr Bamford, Mr Bridger consented to an order for thesale of the Chevrolet as if it was property that he had control over.[67] The Commissioner asserted that Mr and Ms Bridger appeared to have thevehicle under their joint effective control. In oral submissions in court when MsBridger was present, counsel referred to the vehicle having been registered in the nameof Ms Bridger's mother, Vere Lake, and of Vere Lake never having a licence to drivea vehicle. There was evidence as to this in Mr Beattie's second affidavit which hadbeen served on both Mr and Ms Bridger prior to the hearing.[68] The written submissions were served on Mr and Ms Bridger before the hearingin the High Court.[69] During the hearing, counsel highlighted the submission that the respondentshad a joint interest in the Chevrolet and of the Court being entitled to treat Mr Bridgeras having an interest in the vehicle as he had some control with Ms Bridger over thevehicle. After counsel had gone through his submissions at the hearing the Courtasked Ms Bridger if she wished to say anything based on the evidence before the Courtby way of affidavit. The only statement she made was that Vere Lake was not hermother. She was Ms Bridger's aunt.Conclusion[70] I am satisfied that both Mr and Ms Bridger jointly had control over theChevrolet motor vehicle so that they both had an interest in it.[71] The Commissioner's original application for profit forfeiture orders sought theforfeiture of $420 in cash seized from Mr Bridger and $890 seized from Ms Bridgerat the time of their respective arrests. An order for $420 cash was forfeited pursuantto the forfeiture provisions in the Misuse of Drugs Act 1975 as part of Mr Bridger'ssentence. The $890 cash was returned to Ms Bridger by Police on completion of hercriminal proceedings. At the hearing counsel said the Commissioner was not seekingforfeiture of those sums.[72] The Commissioner has proved, on the balance of probabilities, that Mr and MsBridger had an interest in the three Harley Davidson motorcycles and the Chevrolet.[73] On 28 August 2020 orders were made in the High Court for the sale of theHarley Davidson FL FLXR, Harley Davidson Road King motorcycles and theChevrolet. The Harley Davidson Road King was sold for $4,415.94. The HarleyDavidson FL-FLXR was sold for $4,272.68. The Chevrolet was sold for $13,943.71.Full proceeds have been paid to the Official Assignee.[74] I accordingly make profit forfeiture orders against the respondents jointly andseverally on the basis:(a) the unlawful benefit is $96,920;(b) the maximum recoverable amount is $96,920; and(c) the property to be realised is:(i) a 1987 Harley Davidson FL FLXR motorcycle, registration B1ESW (theHarley Davidson FLXR) registered in the name of the first respondentsince 19 August 2014 and the proceeds from the sale of that motorcycle;(ii) a 1994 Harley Davidson 95 Road King motorcycle, registration A4QZN(the Harley Davidson Road King) registered in the name of the firstrespondent's friend, Joanne Marie Reilly, of 14 Trusham Court,Paraparaumu, since 12.28 pm on 9 August 2017 and the proceeds of salefrom that motorcycle;(iii) a 1990 Harley Davidson FXRS-SP motorcycle, registration B3FQY, (theHarley Davidson FXRS-SP) registered in the name of the firstrespondent's friend, Fern Dickson, of 652 Wakefield-Kohatu Highway,Wakefield, since 12.22 pm on 9 August 2017; and(iv) a 1985 Chevrolet Silverado 10 Utility vehicle, registration FGN760 (theChevrolet), registered in the name of the second respondent since 4 August2017 and the proceeds of sale from that vehicle.Costs[75] The Commissioner is entitled to costs on a 2B basis. If there has been noagreement, the Commissioner is to file a memorandum setting out the costs sought by25 June 2021. Any memorandum in reply is to be filed seven days following receiptof the Commissioner's memorandum. Any reply by the Commissioner is to be filedwithin a further seven days.Solicitors:Crown Solicitor, Wellington.