THE COMMISSIONER OF POLICE v ALLAH [2022] NZHC 2463

THE COMMISSIONER OF POLICE v ALLAH [2022] NZHC 2463 [27 September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-333[2022] NZHC 2463UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under sections 21, 24 and 25BETWEEN THE COMMISSIONER OF POLICEApplicantAND ABD ALLAH ABD ALLAHRespondentAND ELENY MELKAMU ZINAWInterested PartyHearing: 27 September 2022Appearances: V M Rea for the ApplicantNo appearance for the Respondent or Interested PartyJudgment: 27 September 2022JUDGMENT OF PALMER JSolicitorsCrown Solicitor, WellingtonWhat happened?[1] On 20 April 2021, the Police pursued a silver Volkswagon travelling north onState Highway 2 near Eketahuna. The pursuit was abandoned due to the Volkswagon'sexcessive speed. It subsequently crashed on the corner of State Highway 2 andMangaoranga Road. The respondent and interested party, his then girlfriend, were inthe vehicle. In or around the car, the Police:(a) seized a blue carry bag containing 725.9 grams of methamphetamine,separated into 10 zip-lock bags, and $229,360 in cash, all of which therespondent said belonged to him;(b) seized $3,000 in cash from the respondent;(c) seized $1,000 in cash from the interested party, in which she hasindicated an interest but about which she has made no statement, andwhich Police believe was given to her by the respondent to compensateher for travelling with him from Wellington to Auckland; and(d) found a loaded firearm, empty snap-lock bags and a cash-countingmachine.[2] In searching the car on 23 April 2021, the Police subsequently seized $6,459.70in cash.[3] In no way do the respondent's total declared income and benefit paymentsmatch the amount of cash in his possession. Under a search warrant, the phones of therespondent and interested party were seized and data extracted that indicated therespondent was involved in the sale and supply of methamphetamine and othersignificant criminal activity involving guns and drugs. The respondent faces 16charges include possession of methamphetamine for supply, eight charges ofsupplying methamphetamine, and one charge of unlawfully possessing a firearm. Hepleaded guilty and is scheduled to be sentenced on 16 November 2022.Application[4] The Commissioner of Police (the Commissioner) applies for asset forfeitureor, alternatively, profit forfeiture orders under the Criminal Proceeds (Recovery) Act2009 (the Act), over the cash seized.[5] Having been served, neither the respondent nor interested party has filed anynotice of opposition. The applications were set down for formal proof and a copy ofthe minute doing so was served on the respondent and interested party. On beingadvised of the date of this hearing, the respondent told the Police the money would bebetter off in the community.[6] Ms Rea, for the Commissioner, submits, on the balance of probabilities, thatthe cash is tainted property under s 5 of the Act, having been wholly or in part acquiredas a result of, or derived from significant criminal activity in which the respondent hasbeen involved and from which he has benefited.Should the cash be forfeited?[7] The respondent has pleaded guilty to drug offences and neither the respondentnor the interested party have chosen to oppose the application. There is ampleevidence, in the circumstances in which the cash was seized, the phone data, and thenature of the offences to which the respondent has pleaded guilty, giving rise to theinferences required to satisfy the criteria for asset forfeiture orders in s 50 of the Act.On the balance of probabilities, I am satisfied the cash was acquired as a result of, ordirectly or indirectly derived from, significant criminal activity. It is accordinglytainted property. I grant the asset forfeiture order, as sought.Palmer J