COMMISSIONER OF POLICE v GEORGE-KEIGHTLEY [2020] NZHC 1741

COMMISSIONER OF POLICE v GEORGE-KEIGHTLEY [2020] NZHC 1741 [17 July 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2020-419-123[2020] NZHC 1741UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND JOSHUA ROBERT GEORGE-KEIGHTLEYRespondentDate of hearing: 17 June 2020 (further submissions 16 July 2020)Appearances: KRL Guthrie for the applicantNo appearance for the respondentDate of judgment: 17 July 2020JUDGMENT OF JAGOSE JThis judgment was delivered by me on 17 July 2020 at 3.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Hamilton Legal, Crown Solicitor, Hamilton[1] As duty judge, I have the Commissioner's application for an asset forfeitureorder dated 27 May 2020, seeking to place some $31,000 in cash – seized from a carassociated with Mr George-Keightley, and in a drugs context and without apparentlegitimate source – into the hands of the Official Assignee.1[2] Mr George-Keightley pleaded guilty to a variety of drug and other offendingarising from that context, for which he presently is serving a sentence of four yearsand nine months' imprisonment. Mr George-Keightley's convictions include foroffering to supply methamphetamine,2 and cannabis,3 and possession of cannabis forsupply.4 The application is supported by affidavits from Ya Tsui, an investigatoremployed by the police.Law[3] If I am satisfied on the balance of probabilities specific property is "taintedproperty" – that is, wholly or partly acquired as a result of, or directly or indirectlyderived from, significant criminal activity – I must make an assets forfeiture order inrespect of that specific property. By the order, the property vests in the Crownabsolutely and is in the custody and control of the Official Assignee.5Discussion[4] I am satisfied by Ms Tsui's evidence on the balance of probabilities the seizedcash is tainted property, as acquired or derived in connection with significant criminalactivity, being the offending to which I have referred, or in any event with offendingobtaining property with a value exceeding $30,000.6[5] However, I "may not make an assets forfeiture order in relation to property thatno person has claimed an interest in", unless satisfied on the balance of probabilitiesthe property has been restrained and the Commissioner has sought to contact anyone1 Criminal Proceeds (Recovery) Act 2009, ss 43, 44, and 49.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty: life imprisonment.3 Section 6(1)(c) and (2)(c). Maximum penalty: eight years' imprisonment.4 Section 6(1)(f) and (2)(c). Maximum penalty: eight years' imprisonment.5 Criminal Proceeds (Recovery) Act 2009, s 50.6 Criminal Proceeds (Recovery) Act 2009, s 6(1).with such an interest.7 For the Commissioner, Ms Guthrie frankly acknowledged shehad not turned her mind to that aspect of an assets forfeiture order. She suggested itmay not apply, because Mr George-Keightley had admitted the seized cash was his.[6] I observed:8 Mr George-Keightley's admission was not quite so specific, he saying topolice in response to a formal examination order "it was given to me to buydrugs for other people 10, at a guess". He asserted "it is still their money".The police suggested, on conclusion of drug transactions, "the ownership of[the] money now is [his]". I am unsure if Mr George-Keightley's acceptanceof that proposition – put conditionally by police as "in that case" – is enoughto give me jurisdiction to make the assets forfeiture order on grounds he hasclaimed an interest in the seized cash.[7] Ms Guthrie offered to make further submissions on the point, which Iwelcomed and now have. Ms Guthrie points to the 2009 Act's definition of "interest"in property as meaning:(a) a legal or equitable estate or interest in the property; or(b) a right, power, or privilege in connection with the propertyand contends Mr George-Keightley's various expressions of interest in the property –whether legally for himself or equitably on behalf of his 'customers' – suffice eitherto establish he has claimed an interest in it, or at least so much of it as is sufficient totaint the balance.[8] I accept, having now considered Mr George-Keightley's police examination inits whole, it cannot be said "no person has claimed an interest" in the property. Itherefore "must" make the assets forfeiture order sought.9Result[9] I make an assets forfeiture order in respect of the $31,120 cash, which vests inthe Crown absolutely, and is in the custody and control of the Official Assignee.—Jagose J7 Section 50(4).8 Commissioner of Police v George-Keightley CIV-2020-419-123, 17 June 2020 (minute) at [5].9 Criminal Proceeds (Recovery) Act 2009, s 50(1).