COMMISSIONER OF POLICE v RANDALL [2022] NZHC 400

COMMISSIONER OF POLICE v RANDALL [2022] NZHC 400 [6 March 2023]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECIV-2021-476-7[2022] NZHC 400BETWEEN COMMISSIONER OF POLICEApplicantAND JONATHAN JAMES RANDALLRespondentHearing: On the papersAppearances: C A O'Connor for ApplicantNo appearance for RespondentJudgment: 6 March 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 6 March 2023 at 11 am, pursuant to r 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] This is an application for a civil forfeiture order in respect of the followingproperty which was in the possession of the respondent, Mr Randall: $82,610 in cash(and interest) seized on 23 July 2020 from 43 Main Street, Weston, Waitaki Districtand which is currently held in a New Zealand Police trust account.The procedural history[2] This file has had a chequered history. Mr Randall was served with the on noticeapplication for civil forfeiture order and supporting evidence on 15 April 2021.Ms Saunderson-Warner was appointed to act for him and he instructed her to opposethe application. However, from mid-2022 she has been unable to obtain instructionsand no notice of opposition has been filed. Although she has attempted tocommunicate with Mr Randall by post and telephone, she has received no responsefrom him.[3] The police then sought an additional forfeiture application in respect of anadditional sum of $5,400 allegedly found in the possession of Mr Randall. However,they, too, were unable to locate Mr Randall to serve him with the further application.[4] On 9 November, a telephone conference proceeded in front of Associate JudgeLester. Ms Saunderson-Warner sought leave to withdraw as counsel and, given theinability to serve Mr Randall, Associate Judge Lester made an order under r 5.41(5)of the High Court Rules 2016 dispensing with service of her application for leave towithdraw on Mr Randall. Nevertheless, the Judge requested thatMs Saunderson-Warner send a copy of the minute to Mr Randall in the hope it wouldcome to his attention and stated:Mr Randall is put on notice that unless and until he provides an address forservice to the Court and to the Police, he will not receive any updates as to thefuture of this proceeding. So much follows from the fact that theCommissioner has no way of contacting him and he has no solicitor acting forhim.[5] Associate Judge Lester then set the matter down for a formal proof hearing.Mr O'Connor has filed submissions in support of the application but nothing has beenreceived from Mr Randall. Accordingly, I have determined the matter on the basis ofthe submissions and evidence which has been filed.The application[6] The ground on which the asset forfeiture order is sought is that the propertylisted in [1] above is "tainted property", that is, it has wholly or in part been acquiredas a result of, or derived from, significant criminal activity. Specifically, Mr Randallwas convicted in the Timaru District Court on the following charges:(a) possession for supply of the Class A controlled drug,methamphetamine;(b) possession for supply of the Class C controlled drug, cannabis.[7] Mr Randall was sentenced for these charges and other charges to 11 months'imprisonment with leave to apply for home detention.[8] The charges follow from the execution of a search warrant on 23 July 2020 atMr Randall's home address. Mr Randall, together with one other person, were theonly occupants of the property. In Mr Randall's bedroom, police located the followingitems:(a) 107 g of dried cannabis plant situated in a locked safe next to his bed;(b) multiple clear zip lock bags containing methamphetamine with acombined weight of approximately 8.6 g;(c) three sets of small electronic scales, three cellphones and anelectroshock weapon known as a taser, together with $82,610 cashlocated in the safe and throughout the bedroom; and(d) a "tick book" recording names and dollar amounts corresponding witha record of money owed for the supply of drugs.[9] Furthermore, as part of the investigation, an analysis of a cellphone used byMr Randall was undertaken by police. This analysis disclosed text messagesexchanged with Mr Randall which were consistent with him dealing in controlleddrugs.[10] A further production order was obtained by the New Zealand Police in relationto telephone calls made by Mr Randall while in prison. An analysis of these telephonecalls showed that he discussed, with his girlfriend, Ms Ariana Kotou Allen, where theydiscussed the destruction of electronic evidence, the movement and concealment ofvehicles and the collection of monies owed to Mr Randall. Again, it is submitted thatall of this is consistent with Mr Randall dealing in controlled drugs.[11] Furthermore, Mr Randall has accumulated a number of significant convictionsin relation to drug offending. This includes convictions entered on 14 June 2018 forpossession for supply of methamphetamine and amphetamine, procuring or possessioncannabis plant, possession or use of utensils for methamphetamine and amphetamine,procuring or possession of methamphetamine or amphetamine, and selling, supplying,administering or dealing methamphetamine or amphetamine.[12] On 7 May 2021, while on bail in relation to the charges listed above, a searchwarrant was executed at another address occupied by the respondent, 19 Abbott Street,Pareora, and located at this address was:(a) two separate quantities of cannabis totalling 48 g;(b) a single tab of LSD;(c) five grams of psilocybin; and(d) $5,400 in cash.[13] The respondent was convicted in relation to the above offences on 29 July 2021and received a sentence of one month's imprisonment concurrent on the other charges.[14] The police undertook an analysis of the respondent's legitimate sources ofincome from the year ending 31 March 2016 to the year ending 31 March 2021. Fortwo of those income tax years, there was no reported income (being 2018 and 2019),in the remaining income tax years the respondent's reported gross income was$55,991, $25,576, $5,400 and $2,343.20 respectively.[15] The only other income identified for the respondent was a Job Seeker Supportbenefit of $250.74 per week granted by the Ministry of Social Development on3 September 2020. However, this benefit was suspended two weeks later upon therespondent returning to prison as a result of breaching his release conditions.[16] Mr O'Connor submits that the significant amount of cash located in therespondent's possession cannot be explained by any legitimate source of incomederived by the respondent.The law[17] Section 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act) providesthe legal test for making an assets forfeiture order in respect of tainted property.Section 50(1) states:If, on an application for an assets forfeiture order, the High Court is satisfiedon the balance of probabilities that specific property is tainted property, theCourt must make an assets forfeiture order in respect of that specific property.[18] The only exception to the mandatory requirement to make an assets forfeiturein those circumstances is set out in s 50(4). However, I am satisfied that the exceptionin s 50(4) does not apply because Mr Randall has claimed an interest in the property.[19] Section 5 of the Act defines "tainted property" as follows:(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 significantcriminal activity; and(b) includes any property that has been acquired as a result of, ordirectly or indirectly derived from, more than 1 activity if atleast 1 of those activities is a significant criminal activity[.][20] Property may be tainted as long as there is a link, even if indirect, between thatproperty (in whole or in part) and the alleged significant criminal activity. "Significantcriminal activity" is defined in the Act as follows:6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significantcriminal activity means an activity engaged in by a person that ifproceeded against 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.In other words, there must be a "traceable connection" between the proceeds of crimeand the property.1[21] In the present case, I accept that the large amount of cash found in therespondent's possession on 23 July 2020 is "tainted property" as defined by the Act.The respondent has been convicted of offences which comprise "significant criminalactivity", being possession for supply of methamphetamine and cannabis, which areoffences punishable by maximum terms of life imprisonment and eight yearsrespectively.2 While Mr Randall indicated in the early stages that he wished to opposethe assets forfeiture order, he has filed no evidence, nor has he provided any plausibleexplanation for possessing such a significant amount of cash.[22] I accept Mr O'Connor's submission that there is an inevitable inference of atraceable connection between the cash and its source as proceeds of criminal activity.This evidence includes:(a) the presence of controlled drugs and items commonly associated withthe dealing in such drugs at Mr Randall's residence, located alongsidethe cash;1 Commissioner of Police v Drake [2017] NZHC 2919 at [110].2 Misuse of Drugs Act 1975, s 6.(b) the records of communications involving Mr Randall which are alsoconsistent with dealing controlled drugs; and(c) Mr Randall has an extensive criminal history involving dealing incontrolled drugs, both preceding and following the offending which isthe focus of this application.[23] Finally, there is a lack of any legitimate source of income which could accountfor Mr Randall possessing such a significant amount of cash.Conclusion[24] In all the circumstances, I am satisfied that the requirements of s 50 are metand I make an assets forfeiture order in respect of the following property:(a) $82,610 cash (and interest) seized on 23 July 2020 under the Searchand Surveillance Act 2012 from 43 Main Street, Weston, WaitakiDistrict, and currently held in the New Zealand Police trust account.Solicitors:Gresson Dorman & Co., Timaru