THE COMMISSIONER OF POLICE v SMITH (TYE) [2020] NZHC 2634

THE COMMISSIONER OF POLICE v SMITH (TYE) [2020] NZHC 2634 [7 October 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2019-419-274[2020] NZHC 2634UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND TREVOR DION SMITH (TYE)RespondentAND DARLENE SHERYL TYEInterested partyHearing: On the papersAppearances: KRL Guthrie for the applicantJudgment: 7 October 2020JUDGMENT OF JAGOSE JThis judgment was delivered by me on 7 October 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 16 September 2020, seeking to place some $55,000 in cash – as proceedsof sale of a car registered KBW113 and nearly $12,000 in cash, obtained in a drugscontext and without apparent legitimate source – into the hands of the OfficialAssignee.1[2] The respondent – with a history of drug offending, arrested in possession ofthe car containing electronic scales and two radio frequency scanners, and subsequentinvestigation identifying his financial transactions substantially in excess of thosedeclared as income to the Revenue – undertook through counsel to "voluntarilysurrender" the car and cash in settlement of the Commissioner's claim. His sister, theinterested party as registered owner of the car, disclaims any interest in either. Afterthe car's initial restraint, by consent, this Court ordered its sale to preserve its value.The present application is supported by affidavits from Daryl Grant Gera, a policeinvestigator. The respondent's counsel has not been able to obtain further instructions.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.2Discussion[4] I am satisfied by Mr Gera's evidence on the balance of probabilities the seizedcar and cash is tainted property, as acquired or derived in connection with significantcriminal activity, being further drug offending as I have referred, or in any event withoffending obtaining property with a value exceeding $30,000.3[5] I therefore "must" make the assets forfeiture order sought.41 Criminal Proceeds (Recovery) Act 2009, ss 43, 44, and 49.2 Criminal Proceeds (Recovery) Act 2009, s 50.3 Criminal Proceeds (Recovery) Act 2009, s 6(1).4 Criminal Proceeds (Recovery) Act 2009, s 50(1).Result[6] I make assets forfeiture orders in respect of the $43,141.38 as proceeds of thecar's sale, and of the $11,970 in cash, which all vests in the Crown absolutely, and isin the custody and control of the Official Assignee.[7] At the Commissioner's suggestion, to give the respondent and interested partyfinal opportunity to oppose, I direct this judgment be served on them, and these ordersnot be sealed prior to 21 October 2020.—Jagose J