COMMISSIONER OF POLICE v KHAN BIGY [2017] NZHC 1185

COMMISSIONER OF POLICE v KHAN BIGY [2017] NZHC 1185 [1 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-2964[2017] NZHC 1185UNDER the Criminal Proceeds (Recovery) Act2009BETWEEN COMMISSIONER OF POLICEApplicantAND SAMAN AHMAD KHAN BIGYRespondentHearing: 1 June 2017Appearances: L Fraser for the CrownNo appearance for the RespondentJudgment: 1 June 2017ORAL JUDGMENT OF MUIR JSolicitors:L Fraser, Meredith Connell, AucklandCopy to:RespondentIntroduction[1] The Commissioner of Police (the Commissioner) applies for an assets forfeiture order against the respondent under s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act).[2] The Commissioner does so in respect of a cash sum of $60,840 seized by the police during a search of a property occupied by the respondent on 4 December 2013.The procedural history[3] The application was first called in the Duty Judge list on 7 December 2016 at which time restraining orders were made by consent. Counsel then engaged for the respondent indicated, however, that the forfeiture order sought by the Commissioner would be opposed. Accordingly I made timetable orders requiring the respondent to file and serve his notice of opposition to the application and evidence in support by 27 January 2017.[4] That order was not complied with.[5] The matter was next called on 23 February 2017 when counsel sought an extension of time for the filing of the opposition and affidavits. Justice Fogarty granted one further month in which to do so. Effectively therefore Mr Khan Bigy was allowed two months for compliance beyond the date specified in my orders dated 7 December 2016.[6] On 2 March 2017 a notice of opposition was filed in terms alleging that the Commissioner had failed to demonstrate on the balance of probabilities that the cash was tainted property. No evidence was filed in support of the notice of opposition.[7] On 19 April counsel for Mr Khan Bigy advised the Court that his client had been declined legal aid and was unable to fund an opposition. Accordingly, counsel sought leave to withdraw.[8] The matter next came before the Court on 27 April 2017 when leave to withdraw was granted. The Commissioner sought an asset forfeiture order that day. Justice Wylie directed that the matter be adjourned to the Duty Judge list today on a basis recorded at [7] of his minute. In particular his Honour noted that: if Mr Khan Bigy has not taken any steps to support his notice of opposition by that date by filing supporting affidavits, it is likely that the assets forfeiture orders sought by the Commissioner would then be made.[9] His Honour directed that a copy of his minute be served on Mr Khan Bigy, which occurred on 3 May 2017. Detective Kemsley has filed an affidavit of service in that respect. The affidavit of service records Mr Khan Bigy advising him "that hehad receipts for all the money police were seeking to forfeit to the Crown".[10] No affidavit has been filed by Mr Khan Bigy since service of the minute. Iconsider it appropriate therefore to determine the Commissioner's application.Mr Kahn Bigy's arrest and conviction[11] On 4 December 2013 the police executed a search warrant at 6A St Leonards Road, Auckland, where Mr Khan Bigy was located and arrested. In his bedroom was a wallet containing cash and a toiletry bag containing various drug paraphernalia. In a downstairs room was located a green bag containing a pile of $20 and $100 notes, in total comprising $60,840 in cash.[12] On 11 August 2015 Mr Khan Bigy was convicted in the District Court at Manukau following trial by jury on the following charges:(a) possession of methamphetamine for supply (x2);(b) supply of methamphetamine (x2);(c) possession of pseudoephedrine for supply; and(d) supply of pseudoephedrine.[13] He was sentenced to four years and six months' imprisonment.[14] Mr Khan Bigy appealed both his conviction and sentence. On 6 December 2016 the Court of Appeal dismissed both appeals.[15] Mr Khan Bigy's convictions related to the supply of two ounces of finishedmethamphetamine and five sets of ContacNT containing 450 grams of pure pseudoephedrine.[16] In his affidavit in support of the forfeiture orders Detective Taylor deposes that, at the relevant time, methamphetamine had a value of approximately $17,000 per ounce and ContacNT approximately $10,000 per set. Accordingly, he deposes that the approximate sale price of the drugs for the possession and supply of which Mr Khan Bigy was convicted was approximately $84,000.Tainted property[17] In relation to Mr Khan Bigy's financial circumstances Police inquiries have revealed:(a) That in the seven years previous to the Commissioner's application Mr Khan Bigy's declared total gross income was $250 only, this sum having been reported in the tax year ending 31 March 2011.(b) Mr Khan Bigy had not previously been in receipt of any state funded benefit.(c) Of the bank accounts held in his name only one – with the ANZ – held a positive balance, being $37.04. Another account with the ASB did show some minimal day-to-day living expenditure prior to 19 December 2014. Detective Taylor concludes, however, that the financial records of Mr Khan Bigy suggest he relied substantially on cash to fund his lifestyle.(d) There is nothing in any of the financial records which the police have obtained which provides information as to the source of the $60,840.00 in cash seized at the time of Mr Khan Bigy's arrest.[18] Having regard to this background I am satisfied that the Commissioner has established on the balance of probabilities that the monies are tainted property for the purposes of the Act. In coming to that conclusion I am particularly influenced by:(a) the correlation between the sum of cash identified at Mr Khan Bigy'shome and the value of the drugs Mr Khan Bigy was convicted of supplying; and(b) the absence of any evidence as to a legitimate source of that cash.Result[19] I order that the cash to the value of $60,840 seized during the execution of the search warrant at the home of Mr Saman Ahman Khan Bigy at 6A St Leonards Road, Mt Wellington, Auckland on 4 December 2013 plus any interest earnedthereon vests in the Crown absolutely and be under the Official Assignee's custodyand control.[20] I direct that a copy of this judgment be forwarded by the Registrar to Mr Khan Bigy at the Hawkes Bay Regional Prison, 138 Mangaroa Road, Bridge Pa, Hastings 4174.__________________________Muir J