THE COMMISSIONER OF POLICE v RURU [2022] NZHC 751

THE COMMISSIONER OF POLICE v RURU [2022] NZHC 751 [12 April 2022]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECIV-2022-416-1[2022] NZHC 751UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under ss 43, 44 and 49BETWEEN THE COMMISSIONER OF POLICEApplicantAND SHAUN RURURespondentAND CHAKHAN HAWEAInterested PartyOn the PapersCounsel: M Mitchell for the ApplicantNo appearances for the Respondent or Interested PartyJudgment: 12 April 2022JUDGMENT OF GWYN J[1] This is an application by the Commissioner of Police (Commissioner) underss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act) for forfeitureof $17,150 in cash (the property), located at the previous residential address of therespondent, Shaun Ruru and the interested party, Chakhan Hawea.[2] The application for forfeiture dated 17 January 2022, supporting affidavit ofMs Jessie Michelle Donald dated 21 November 2020, accompanying memorandumand letter of service from the Crown was personally served on Mr Ruru on 7 March2022. Constable Robert Dench has sworn an affidavit of service.[3] Counsel for the Commissioner advises that, also on 7 March 2022, she receiveda call from Ms Hawea, the interested party, in which Ms Hawea expressed the viewthat she and the respondent (with whom she still lives) did not wish to participate inthese proceedings.[4] The application was first called on 21 March 2022 and neither the respondentnor the interested party appeared.[5] In these circumstances, the Commissioner asks for the application to bedetermined on the papers.Relevant legislation[6] Under s 50 of the Act, if the Court is satisfied on the balance of probabilitiesthat specific property is tainted property, it must make an assets forfeiture order inrespect of that specific property.[7] "Tainted property" is defined in s 5 of the Act, as follows:tainted property—(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 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] The Act also defines "significant criminal activity", in s 6:6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significant criminalactivity means an activity engaged in by a person that if proceededagainst 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.(2) A person is undertaking an activity of the kind described in subsection(1) whether or not—(a) the person has been charged with or convicted of an offencein connection with the activity; or(b) the person has been acquitted of an offence in connection withthe activity; or(c) the person's conviction for an offence in connection with theactivity has been quashed or set aside.[9] The evidence provided in Ms Donald's affidavit is that the property was foundby Police during the execution of a search warrant at the home address shared by therespondent and the interested party on 13 February 2014. The cash was containedinside a bucket that also contained various drug dealing paraphernalia.[10] As a consequence of the subsequent police investigation, both the respondentand the interested party pleaded guilty to charges of possession of cannabis for supplyand sale of cannabis.[11] When questioned by the Police on his arrest, the respondent said that the bucketcontaining the cash had been given to him by his deceased stepfather, who therespondent claimed had been a "big drug lord". The interested party disclaimed anyknowledge of the cash or the bucket in which it was contained.[12] Ms Donald's evidence is that neither the respondent nor the interested partyhad any legitimate source of income that would explain the presence of such anamount of cash in their house.[13] Ms Donald's affidavit also refers to letters from a third person, Ms E, foundduring the Police search of the house, which referred to both cash and "buckets". Ms Ehas since been imprisoned for methamphetamine dealing which took place during thistime period. Ms E has disavowed any knowledge of the cash and confirmed that shemakes no claim to it.[14] The submission for the Commissioner is that the cash is more likely than notto have been directly or indirectly derived from the sale of controlled drugs (sale ofthe Class C drug cannabis, which is the least serious offence relevant to theseproceedings and carries a maximum penalty of eight years' imprisonment).Orders[15] Having read the application for forfeiture, memorandum in support of theapplication, affidavit of Jessie Michelle Donald, affidavit of service ofConstable Robert Dench, and the memorandum of counsel dated 10 April 2022, I amsatisfied that it is more likely than not that the property is "tainted", being acquired asa result of significant criminal activity.[16] Accordingly, I make an order pursuant to s 50 of the Act that the property:(a) vests in the Crown absolutely; and(b) is to be in the Official Assignee's custody and control.Gwyn JSolicitors:Elvidge & Partners, Napier