COMMISSIONER OF POLICE v PULLEN [2023] NZHC 3398

COMMISSIONER OF POLICE v PULLEN [2023] NZHC 3398 [28 November 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-46[2023] NZHC 3398UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER of an application pursuant to sections 43, 44and 49 of the ActBETWEEN COMMISSIONER OF POLICEApplicantAND KEEGAN LORENZO PULLENRespondentHearing: 28 November 2023Counsel: C White for ApplicantNo appearance by or on behalf of RespondentJudgment: 28 November 2023JUDGMENT OF BREWER JSolicitors:Raymond Donnelly & Co (Christchurch) for ApplicantIntroduction[1] This Judgment decides an application by the Commissioner of Police (theCommissioner) for an assets forfeiture order. The application proceeded by way offormal proof since, in the end, the respondent, Mr Pullen, took no steps.1[2] On 1 May 2021 police were called to an address in Aranui, Christchurchfollowing a reported shooting. Mr Pullen, a patched member of the Black Power, wasfound outside the address with a gunshot wound to his stomach.[3] Attending ambulance staff removed Mr Pullen's clothing and handed it to thepolice. In one pocket were 1.01 grams of methamphetamine and $17,355 in cash (thecash).[4] A subsequent search of Mr Pullen's home address, the address at which he wasshot, revealed two unlawfully owned shotguns and corresponding ammunition. Therewas nothing found in the house associated with the use of methamphetamine.[5] The application for a forfeiture order is on the basis that the cash is taintedproperty because it has, wholly or in part, been acquired as a result of significantcriminal activity, or directly or indirectly derived from significant criminal activity,namely the sale of methamphetamine.The law[6] The governing statute is the Criminal Proceeds (Recovery) Act 2009 (the Act).Pursuant to s 50 of the Act, the court must make an assets forfeiture order if the courtis satisfied on the balance of probabilities that specific property is tainted property.[7] "Tainted property" is defined as:2(a) means any property that has, wholly or in part, been—(i) acquired as a result of significant criminal activity; or1 Minute of Dunningham J, 16 October 2023.2 Criminal Proceeds (Recovery) Act 2009, s 5.(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[8] "Significant criminal activity", in this case, means an activity engaged in by aperson that if proceeded against as a criminal offence would be punishable by amaximum term of imprisonment of five years or more.3 Dealing in methamphetamineis such an offence.[9] The Commissioner has filed in support of the application the affidavits ofChristopher James Gardner and Chelsea Tyler Aisthorpe Kennedy. The former is anexperienced Detective who interviewed Mr Pullen and then investigated hisexplanations. The latter is a forensic accountant who analysed Mr Pullen's financialaffairs.[10] Essentially, Mr Pullen said that the cash was the proceeds of legitimate butundeclared income derived by him from a number of sources. He accepted that hecould not bring evidence to support what he said. His explanations, as reported byDetective Gardner, are inconsistent with each other and at times contradictory. TheDetective's investigations found no evidence to support Mr Pullen's explanations.Indeed, his most cogent explanations (undeclared income from scaffolding jobs) weredisproven.[11] The evidence of Ms Kennedy is to the effect that the accumulation of the cashis inconsistent with Mr Pullen's record of income over the years as maintained by theInland Revenue Department. Much of that income is derived from Social Welfarebenefits.[12] Ms Kennedy is also of the opinion that the accumulation of the cash isinconsistent with Mr Pullen's banking records which, themselves, show unexplaineddeposits and withdrawals.3 Criminal Proceeds (Recovery) Act 2009, s 6(1).[13] The Crown's submission is:25. It is submitted that the circumstances in which the cash was foundstrongly suggests that it was derived from significant criminal activity,namely the supply of methamphetamine:a. The cash was found alongside 1.01 grams ofmethamphetamine. Although only a small quantity ofmethamphetamine, it is notable that no evidence ofmethamphetamine personal use such as pipes, bongs or strawswere located during the search.b. It is unusual for a person to carry such a large quantity of cash.It is well known that people who engage in the illegal drugtrade regularly utilise cash as a method of avoiding detection.Mr Pullen advised in his examination that he had been savingup the money in a safe over a number of years, however, it isknown that Mr Pullen had three bank accounts which he wasa regular user of so the explanation is unlikely.c. Firearms were also located at the address. It is common forpeople who are involved in the illegal drug trade to unlawfullypossess firearms either as a means of protection or to utilisefor more violent purposes. This is further supported by thefact that the Police were responding to Mr Pullen having beenshot at the address.Decision[14] I am satisfied, in the absence of any credible explanation from Mr Pullen as tohow he came to have the cash, that the Commissioner has established it was theproceeds of significant criminal activity relating to the supply of methamphetamine.Mr Pullen, a patched member of the Black Power, was found with a small amount ofmethamphetamine directly alongside the cash. There was nothing in his house whichwould suggest the recreational use of methamphetamine. The amount of cash is verysignificant when compared with Mr Pullen's legitimate income and even theunexplained cash deposits and withdrawals from his bank accounts. On the balanceof probabilities, I conclude that the cash was derived from significant criminal activity,namely the sale of methamphetamine.[15] It follows that the cash is tainted property because it is the proceeds ofMr Pullen's significant criminal offending. There is no suggestion there is any otherperson who may have an interest in the cash. There is no outstanding claim to it.Accordingly, I grant the Commissioner's application for an assets forfeiture order,namely $17,355 plus any accumulated interest, and I direct that the cash is to vest inthe Crown absolutely and is to be in the Official Assignee's custody and control.________________________________Brewer J