COMMISSIONER OF POLICE v JOHNSON [2022] NZHC 2703

COMMISSIONER OF POLICE v JOHNSON [2022] NZHC 2703 [19 October 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2022-463-23[2022] NZHC 2703UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND WIREMU WETENE TE WAAKAJOHNSONRespondentHearing: 18 October 2022Appearances: S Smith for ApplicantNo appearance by or on behalf of RespondentJudgment: 19 October 2022JUDGMENT OF WOOLFORD J(Asset Forfeiture Orders)This judgment was delivered by me on Wednesday, 19 October 2022 at 11:30 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Gordon & Pilditch (Office of the Crown Solicitor), Rotorua[1] This is an application for an assets forfeiture order under the Criminal Proceeds(Recovery) Act 2009. The Commissioner of Police applies for an order that $11,135cash located by the Police in Mr Johnson's wardrobe at his Rotorua address on15 April 2021:(a) Vests in the Crown absolutely; and(b) Is to be in the Official Assignee's custody and control.[2] The order is sought on the grounds that the cash is tainted property because itwas:(a) Acquired as a result of significant criminal activity; or(b) Directly or indirectly derived from significant criminal activity.[3] The application is dated 27 April 2022. Mr Johnson has taken no steps andMs Smith invites the Court to make an order accordingly.[4] The application was the subject of a telephone conference before Wylie J on13 September 2022. Wylie J had reservations about service. An affidavit of servicefrom a Police investigator confirmed that he served the documents on Mr Johnson'spartner for delivery to Mr Johnson. Wylie J thought that this did not suffice in termsof the High Court Rules.[5] Ms Smith referred Wylie J to a minute of Duffy J on 2 June 2022. Mr Johnsonappeared when the matter was then called before the Court and Duffy J recorded thatMr Johnson had been served with the Commissioner's application and affidavit insupport and that an affidavit of service was on the Court file. Out of caution, Wylie Jdirected that the papers were to be served on Mr Johnson, care of the address forservice put in place by Duffy J. A copy of Wylie J's minute was to be served onMr Johnson at the same time.[6] The Commissioner subsequently filed a further affidavit of service dated15 September 2022, which confirms that Mr Johnson was served with the documentsby way of an e-mail address that the investigator had previously used to communicatewith, and exchange e-mails with Mr Johnson. The investigator also made a telephonecall to Mr Johnson's mobile telephone and spoke with him. Mr Johnson acknowledgedthat he had received the e-mail and the documents attached to it. The investigator hadpreviously spoken to Mr Johnson by telephone on the same number and he recognisedthe voice of that of Mr Johnson.[7] After having perused the original affidavit of the investigator, dated 21 April2022, I am satisfied from the enquiries described by the investigator in the affidavitthat the cash was acquired by Mr Johnson as a result of significant criminal activity ordirectly or indirectly derived from significant criminal activity.[8] In those circumstances, I make an order that the sum of $11,135 cash locatedby the Police in Mr Johnson's wardrobe at his Rotorua address on 15 April 2021 vestsin the Crown absolutely and is to be in the Official Assignee's custody and control.__________________________Woolford J