THE COMMISSIONER, THE NEW ZEALAND POLICE v NICOL [2020] NZHC 2302

THE COMMISSIONER, THE NEW ZEALAND POLICE v NICOL [2020] NZHC 2302 [4 September 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2016-485-490[2020] NZHC 2302IN THE MATTER OF an application under section 50 of theCriminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND GRANT GENE JOSEPH NICOLRespondentELIZABETH ANN HALLInterested PartyHearing: 2 September 2020Counsel: A M W Britton for ApplicantE T Blincoe for RespondentJudgment: 4 September 2020JUDGMENT OF CLARK J[1] The Commissioner seeks an assets forfeiture order in relation to cash seized atthree different locations. The matter was listed for a formal proof hearing on 13 July2020.[2] On 2 September 2020, the day of the hearing, counsel for Mr Nicol confirmedthat Mr Nicol did not oppose two of the orders sought by the Commissioner.1Accordingly, this judgment determines the Commissioner's application for an order1 The respondent opposes the Commissioner's application in relation to the cash sum described at[2](c) of the Commissioner's application dated 1 May 2020.that the following property vests in the Crown and is to be in the custody and controlof the Official Assignee:(a) cash to a total value of $59,400.00 found at 24 Titoki Road, WaikanaeBeach on 15 March 2016 and currently being held by the OfficialAssignee in the New Zealand Insolvency & Trustee Service Proceedsof Crime Account;(b) cash to a total value of $13,710.00 found in a Subaru motor vehicleon Kenepuru Drive, Porirua and at 55 and 56 Onepoto Road, TitahiBay on 26 November 2015 and currently being held by the OfficialAssignee in the New Zealand Insolvency & Trustee Service Proceedsof Crime Account.Factual background[3] In November 2015, the Police stopped a Subaru vehicle on Kenepuru Drive,Porirua. Mr Nicol was the front-seat passenger. He was subsequently arrested forsupplying and offering to supply methamphetamine. The vehicle was searchedpursuant to Mr Nicol's arrest and, in addition to a glass pipe used formethamphetamine, $5,680 in cash was found in a belt bag in the front passenger footwell. A subsequent search of a property at which Mr Nicol had been staying locateda further $8,030 in cash making a total of $13,710 seized by the Police.[4] In March 2016 Mr Nicol's address was searched. In addition tomethamphetamine, digital scales and a handgun, $9,400 in cash was found in a walletunder a couch and $50,000 in cash in a bag inside a motor vehicle. A total of $59,400was seized from this property.[5] On 2 April 2019 Mr Nicol was convicted of the following charges:16.1 three charges of offering to supply methamphetamine;216.2 one charge of supplying methamphetamine;32 Misuse of Drugs Act 1975, s 6(1)–(3).3 Sections 6(1)(f) and (2).16.3 two charges of possession of utensils for methamphetamine.4[6] The charges of offering to supply, and supplying methamphetamine, carry amaximum penalty of life imprisonment and accordingly constitute "significantcriminal activity" for the purposes of the Criminal Proceeds (Recovery) Act 2009 (theAct).5Asset forfeiture orders[7] Under s 50 of the Act, the Court "must" make an asset forfeiture order inrespect of specific property if satisfied on the balance of probabilities that the propertyis "tainted property".[8] I am satisfied the restrained cash was acquired as a result of significant criminalactivity and is therefore tainted property within the meaning of the Act. Not only hasMr Nicol been convicted of relevant offences carrying a maximum penalty of lifeimprisonment but between 2012 and 2017 he was in receipt of benefits and had noother legitimate sources of income. He has deposed in an affidavit filed in support ofan application to release funds to his lawyer that after paying his bills he was left with$80 per week. At the time of the seizures of the restrained cash his bank account waseither in arrears or contained only a nominal amount.[9] As Mr Nicol was not in a position to accumulate cash assets of $101,000, theonly tenable inference is that the cash was derived from his significant criminalactivity, namely the sale of methamphetamine.[10] As the Court of Appeal held in Commissioner of Police v De Wys if large cashsums cannot be adequately explained "this will tend to support an inference that therelevant cash has been sourced from illegitimate or criminal activity".64 Sections 13(1)(a) and (3).5 Criminal Proceeds (Recovery) Act 2009, s 50; s 5 definition of "tainted property" and "significantcriminal activity".6 Commissioner of Police v De Wys [2016] NZCA 634 at [71].Result[11] Accordingly, the Commissioner's application for an assets forfeiture order isgranted in relation to the property referred to at [2](a) and (b) above._____________________________Karen Clark JSolicitors:Crown Solicitor, Wellington for ApplicantOrd Legal, Wellington for Respondent