COMMISSIONER OF POLICE v HARRIEDER [2020] NZHC 2797

COMMISSIONER OF POLICE v HARRIEDER [2020] NZHC 2797 [23 October 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2020-425-000045[2020] NZHC 2797BETWEEN COMMISSIONER OF POLICEApplicantAND SVEN STEPHEN HARRIEDERFirst RespondentAND JUSTIN CHRISTOPHER HAMILTONSecond RespondentHearing: 20 October 2020Appearances: R W Donnelly for CrownNo appearance for RespondentsJudgment: 23 October 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 23 October 2020 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 23 October 2020[1] The Commissioner of Police (the Commissioner) applies for asset forfeitureorders against both respondents under s 50 of the Criminal Proceeds (Recovery) Act2009 (the Act), in respect of the following cash sums:(a) $117,405.80 in cash located in the room occupied by thefirst respondent, Mr Sven Stephen Harrieder at Deco Backpackers,52 Man Street, Queenstown, on 25 June 2020;(b) $40.00 (United States) cash located in the room occupied byMr Harrieder at Deco Backpackers on 25 June 2020;(c) $770.00 (Australian) in cash located at the room occupied byMr Harrieder at Deco Backpackers on 25 June 2020;(d) $11,956.90 located in the room occupied by the second respondent,Mr Justin Christopher Hamilton, at Deco Backpackers on25 June 2020.[2] The orders are sought on the grounds that the proposed forfeited property istainted property having been acquired directly, or indirectly, from significant criminalactivity committed by Mr Harrieder and Mr Hamilton, namely from the sale ofcannabis or other controlled drugs in contravention of s 6 of the Misuse of Drugs Act1975.[3] A profit forfeiture order is also sought in respect of the sum of $118,231.90(being the combined New Zealand dollar value of the cash sums listed above) but, forreasons I explain below, that order is not pursued.The procedural history[4] The application was initially filed on 5 August 2020 seeking orders, vesting inthe Crown, the two sums of cash in New Zealand dollars listed in 1(a) and (d) above.[5] On 8 September 2020, the Commissioner filed an amended application seekingorders vesting, in the Crown, the additional sums of cash in US dollars and Australiandollars which were also located in Mr Harrieder's room. The applications were bothsupported by an affidavit from a police officer, Detective Christopher Lee Maitland,setting out the evidence in support of the application. The initial application andsupporting affidavit were served on Mr Harrieder and Mr Hamilton on24 August 2020, and the amended application and supporting affidavit were served onboth respondents on 8 September 2020.[6] The applications advised Mr Harrieder and Mr Hamilton that they were to beconsidered by the High Court in a telephone conference on 21 September 2020 at2.30 pm. No notices of opposition were filed with the High Court in advance of thetelephone conference, although, as Nation J noted in his minute dated22 September 2020, the amended applications were not served on the two respondentsmore than 10 working days before the scheduled hearing.[7] Nation J also noted it was not apparent from the affidavits of service that hadbeen filed with the Court whether Mr Hamilton was served with a copy of the affidavitin support of the original application. As a consequence, Nation J made directions toensure both respondents had the complete set of documents supporting theapplications, as well as time to respond. They were directed to file a notice ofopposition advising the Court of the grounds on which they oppose the application nolater than 14 October 2020. The initial hearing of the application was then scheduledto proceed on 20 October 2020, with the warning that if no notice of opposition hadbeen filed with the Court by either respondent, then the application would be dealtwith by the Court on the basis of the evidence already filed.[8] I have on file affidavits confirming that both respondents were served with theoriginal and the amended application along with the supporting affidavits, as well asa copy of the minute of Nation J dated 22 September 2020.[9] No notice of opposition was filed by either respondent in advance of hearingand there was no appearance by either of them at the hearing on 20 October 2020.Accordingly, I determined the application after hearing from the applicant alone.Amendment of the application[10] The Commissioner filed an amended application on 8 September 2020.However, the Act limits the circumstances in which an amended application canproceed. Section 47(2) provides that the Court: must not amend an application for a civil forfeiture order to includeadditional property, proceeds, or benefits unless the Court is satisfied that –(a) the additional property, proceeds, or benefits were not reasonably able tobe identified when the application for the civil forfeiture order was made;or(b) the evidence necessary to support the application in relation to theadditional property, proceeds, or benefits only became available after theapplication for the civil forfeiture order was made.[11] In the present case, Mr Donnelly acknowledges that the small sums in foreigncash were found during the search which precipitated the original application.However, he submitted that the circumstances fell within s 47(2)(b) in that there wasinsufficient evidence as to the source of the small sums of foreign cash found inMr Harrieder's room which was resolved when he was sentenced on 10 August 2020.At the hearing the Judge made a finding, noting that Mr Harrieder did not dispute it,that the money in currency from the United States and Australia was derived fromearlier sales of drugs.1[12] In the circumstances, I am satisfied that the evidence necessary to support theapplication in relation to the additional property only became available after theapplication for civil forfeiture order was made, and I permit the application to beamended accordingly.The application for asset forfeiture orders[13] The affidavit evidence of Detective Christopher Lee Maitland filed in supportof the application confirms that:(a) a search warrant was executed at Deco Backpackers, situated at52 Man Street, Queenstown in relation to the suspected supply ofClass A, B and C controlled drugs by Mr Harrieder and two of hisassociates, including Mr Hamilton;(b) during that search the first three cash sums sought to be forfeited, alongwith LSD and cannabis, were located in Mr Harrieder's room; and1 R v Harrieder [2020] NZDC 16138 at [34].(c) the remaining cash sum sought to be forfeited, along with 92.64 g ofcannabis packaged for sale, were located in Mr Hamilton's room.[14] As a result of these discoveries, Mr Harrieder was charged with:(a) possession of LSD;(b) possession of cannabis for supply; and(c) failure to carry out obligations in relation to a computer search.[15] Mr Hamilton was charged with:(a) possession of cannabis for supply.[16] Detective Maitland's affidavit explains his reasons for believing the cash sumscame from the supply and sale of cannabis and other illegal drugs. In particular:(a) both respondents pleaded guilty to the charges at the QueenstownDistrict Court on 3 July 2020;(b) neither Mr Harrieder, nor Mr Hamilton, offered any alternateexplanation for being in possession of the cash; and(c) Mr Harrieder had no known income during his period of time inNew Zealand, and Mr Hamilton had only declared a total income of$2,649.22 earned in New Zealand since his arrival in June 2019.[17] Having regard to this background, I am satisfied that the Commissioner hasestablished, on the balance of probabilities, that the monies are tainted property for thepurposes of the Act. In coming to that conclusion, I am particularly influenced by:(a) the finding of large sums of cash alongside drugs packaged for sale inboth the respondents' rooms at Deco Backpackers; and(b) the absence of any evidence as to a legitimate source of that cash.Result[18] The asset forfeiture orders sought in respect of the sums listed at para 3 of theamended application for asset and profit forfeiture orders are made.[19] As the profit forfeiture order was sought in the alternative, and in any event,does not exceed the value of the asset forfeiture order made, Mr Donnellyacknowledged that there was no requirement to make that order in addition to the assetforfeiture orders.Solicitors:Preston Russell Law, Invercargill