COMMISSIONER OF POLICE v HAUNUI [2022] NZHC 2348

COMMISSIONER OF POLICE v HAUNUI [2022] NZHC 2348 [12 September 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-201[2022] NZHC 2348BETWEEN COMMISSIONER OF POLICEApplicantAND DENNIS HAUNUIRespondentHearing: (Dealt with on the papers)Counsel: K South and K A CourteneyA J Bailey for RespondentJudgment: 12 September 2022JUDGMENT OF EATON J[1] The Commissioner of Police makes application for an asset forfeiture order.[2] The property the subject of the application is $200,040 in cash seized on9 November 2021 from the respondent's unit at the Pine Acres Holiday Park.[3] The respondent has through his counsel, Mr Bailey, confirmed he elects not totake an active role in the proceedings and asks the Court to determine the applicationsolely on the evidence filed by the applicant.[4] Pursuant to s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act):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.[5] "Tainted property" is defined in s 5 of the Act as:tainted property—(a) means any property that has, wholly or in part, been—(i) acquired as a result of significant criminal activity; or(ii) directly or indirectly derived from significant criminalactivity; and(b) includes any property that has been acquired as a result of, or directlyor indirectly derived from, more than 1 activity if at least 1 of thoseactivities is a significant criminal activity[6] Significant criminal activity is defined in s 6 of the Act as:6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significant criminalactivity means an activity engaged in by a person that if proceededagainst as a criminal offence would amount to offending—(a) that consists of, or includes, 1 or more offences punishable bya maximum term of imprisonment of 5 years or more; or(b) from which property, proceeds, or benefits of a value of$30,000 or more have, directly or indirectly, been acquired orderived.(2) A person is undertaking an activity of the kind described in subsection(1) whether or not—(a) the person has been charged with or convicted of an offencein connection with the activity; or(b) the person has been acquitted of an offence in connection withthe activity; or(c) the person's conviction for an offence in connection with theactivity has been quashed or set aside.(3) Any expenses or outgoings used in connection with an activity of thekind described in subsection (1) must be disregarded for the purposesof calculating the value of any property, proceeds, or benefits undersubsection (1)(b).[7] Having reviewed the evidence of Detective Bruce, I am satisfied that the cashis tainted property as it was acquired as a result of, or derived directly or indirectlyfrom, significant criminal activity.[8] The evidence satisfies me the respondent has a proven association to theTribesmen gang and has previous convictions for supply of methamphetamine, sellingmethamphetamine and participating in an organised criminal group. He has otherconvictions for drug offending.[9] Further, the cash was located alongside cannabis and other drug paraphernaliaincluding two glass pipes used to smoke methamphetamine, a notebook includingentries indicating a tick list and two cell phones indicating use of multiple phones.Mr Haunui advanced the implausible explanation that the cash represented his lifesavings. A review of his personal bank accounts and his Inland Revenue recordsprovide no support for that explanation.[10] Finally, Detective Bruce refers to Mr Haunui having made multiple tripsbetween Christchurch and destinations in the North Island between April 2021 and19 September 2021, suggesting travel more consistent with drug related activity thanlegitimate activity.[11] Having regard to that evidence I am satisfied on the balance of probabilitiesthe cash is tainted. I must therefore make an assets forfeiture order and I do so interms of the draft order....................................................Eaton JSolicitors:Crown Solicitor's Office, ChristchurchCopy to:Andrew Bailey, Barrister, Christchurch