COMMISSIONER OF POLICE V RODGERS HC AK CIV-2012-404-4185

COMMISSIONER OF POLICE V RODGERS HC AK CIV-2012-404-4185 [3 September 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-4185[2012] NZHC 2246UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND NOEL TERENCE RODGERSRespondentHearing: 29 August 2012Counsel: M Harborow on behalf of the ApplicantNo appearance by or on behalf of the RespondentJudgment: 3 September 2012RESERVED JUDGMENT OF ELLIS JThis judgment was delivered by me on 3 September 2012at 3 pm, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Crown Solicitors, PO Box 2213, Auckland 1140Copy To: N Rodgers, 1/15 Brook Street, Milford, Auckland[1] The Commissioner has filed an application for restraining and asset forfeiture orders under the Criminal Proceeds (Recovery) Act 2009. The orders sought relate to:(i) $79,595.20 cash located in and seized by police from a BMW vehicle, registration AEQ629, during a search on 30 December 2011; and(ii) $5,035.00 cash located in and seized by police from a BMW vehicle, registration AEQ629, during a search on 27 April 2012.[2] No steps have been taken by Mr Rodgers and there was no appearance on his behalf in the list. He was served with the proceedings on 27 July 2012.[3] Counsel for the Commissioner therefore asked that I make the orders on the basis of the material on the file.[4] That material discloses that on 30 December 2011 Mr Rodgers was driving the BMW vehicle referred to in the application and that on 27 April 2012 he was a passenger in the same vehicle. Mr Rodgers presently faces charges arising from the 26 April incident of unlawful possession of a restricted weapon (a taser), possession of utensils and possession of methamphetamine and amphetamine for supply. He has previous convictions for drug-related offending including, in particular, possession of methamphetamine for supply for which he was convicted on 16 December 2008 and sentenced to two years, nine months imprisonment.[5] It is notable, however, that the only charges laid against Mr Rodgers (or anyone else) as a result of the 30 December incident involved unlawfully carrying a restricted weapon, driving in a dangerous manner and failing to stop.1 Those chargesarise from Mr Rodgers' actions after being pulled over by Police because he hadbeen seen stealing 8 bunches of flowers. When advised he was under arrest, Mr Rodgers locked the car doors and drove away at some speed.1 Mr Rodgers pleaded guilty to those charges on 23 February 2012.[6] The Police say that when Mr Rodgers was initially stopped on that day theynoticed some plastic containers said to be "similar to containers used to carryingmethamphetamine" on the front passenger seat of the vehicle. They say that these containers must have subsequently been disposed of by Mr Rodgers during the police pursuit that followed. They have not since been located. A taser was,however, found under the driver's seat. The cash was in a box in the foot well of thefront passenger seat.[7] Mr Rodgers is recorded as telling the Police that the BMW was registered inhis mother's name but that it was his car.[8] An application under s 199 of the Summary Proceedings Act 1957 has been made by Mr Junior Rawiri who says that the $79,585.20 cash located in Mr Rodgers'car on 30 December belongs to him. That application is to be heard in the District Court on 27 September 2012. Mr Rawiri has been served as an interested party to the present application but has taken no steps. Mr Rawiri has said that the cash wasderived from his participation in a "cash for scrap" business. Suffice it to say that the affidavit filed in support of the present application casts considerable doubt over that assertion.[9] Mr Rawiri has not taken steps in these proceedings. He was served on 1 August 2012.[10] I have no difficulty in making the restraining orders sought on the basis that the material before the Court establishes that there are reasonable grounds to believe that the cash found on both occasions is tainted property as defined, ie 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 criminal activity.22 Criminal Proceeds (Recovery) Act 2009: s 5.[11] I also have no difficulty in making an assets forfeiture order in relation to the $5,035 seized on 27 April 2012. I am satisfied, on the balance of probabilities that that money is tainted property, as defined – the presence of the cash, the taser, the utensils and the methamphetamine in the car, together with Mr Rodgers' history ofmethamphetamine related offending all point strongly in that direction.[12] The position in relation to the $79,595.20 seized on 30 December 2011 is necessarily more finely balanced. I accept that forfeiture under the Criminal Proceeds (Recovery) Act is not predicated on the laying (let alone proof) of charges pertaining to the relevant serious criminal activity. But in order for an asset forfeiture order to be made the onus is nonetheless on the Commissioner to establish that the property is tainted, to the required standard of proof. Having carefully considered the matter I am, however, satisfied to that standard. In reaching that conclusion I take account of the following matters:(a) Mr Rodgers has relevant previous drug convictions;(b) He is now facing further similar charges;(c) The car in which the cash was found was Mr Rodgers';(d) Large quantities of cash are commonly found in circumstances where drug dealing is occurring. The presence of a taser in Mr Rodgers' caralso supports such an inference;(e) There is no other explanation before the Court of the origins of the cash and no-one has claimed an interest in it in these proceedings;(f) To the extent account could properly be taken of Mr Rawiri's claim inthe District Court (as to which I have some doubt), any basis for such a claim is contradicted by the evidence filed by the Commissioner which indicates that:(i) The cash for scrap business referred to by Mr Rawiri does not exist;(ii) There is no evidence that Mr Rawiri has ever derived any income from such a business;(iii) Mr Rawiri himself has a relevant criminal history.[13] On that basis I make the orders sought. Both quantities of cash are to be transferred into the custody and control of the Official Assignee and are to vest in the Crown absolutely.______________________________Rebecca Ellis J