THE COMMISSIONER, THE NEW ZEALAND POLICE v RODGERS [2014] NZHC 890

THE COMMISSIONER, THE NEW ZEALAND POLICE v RODGERS [2014] NZHC 890 [2 May 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-2659[2014] NZHC 890BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND PAUL PETER MANAWA RODGERSRespondentKELLY LOUISE COLEFirst Interested PartyMICHAEL EDWIN DEBRECENYSecond Interested PartySTEPHEN CHRISTOPHER ROWEThird Interested PartyBARRY RIMENEFourth Interested PartyTONY WILLIAM WALLISFifth Interested PartyHearing: 28 April 2014Counsel: S K Barr for ApplicantN J Sainsbury for RespondentThird Interested Party in PersonJudgment: 2 May 2014JUDGMENT OF GODDARD JThis judgment was delivered by me on 2 May 2014at 10.30 am, pursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Wellington for ApplicantGreig Gallagher & Co, Wellington for RespondentIntroduction[1] There are two applications before the Court for determination. The first is an application by the third interested party, Mr Rowe, to have a 1965 Ford Galaxie motor vehicle excluded from a restraining order granted to the Commissioner of Police.[2] The second application is brought by the Commissioner of Police, in which he seeks the sale of the vehicles already the subject of the restraining order, pending resolution of the issue of forfeiture. Those vehicles include the 1965 Ford Galaxie.[3] The Commissioner's application can be dealt with in short order. While Mr Rodgers (who the police say had ownership and control of the restrained vehicles which are tainted by the proceeds of his criminal activity) does not support theCommissioner's application for the sale of the vehicles, he does not actively oppose the application. His counsel, Mr Sainsbury, attended the hearing before me but took no active role, advising that his was essentially a watching brief.[4] The application by Mr Rowe to have the 1965 Ford Galaxie excluded from the restraining order was opposed by the Crown on behalf of the Commissioner of Police. Mr Rowe, appearing in person, elected to give viva voce evidence before me and was cross-examined by Mr Barr.Mr Rodgers' evidence[5] In evidence, Mr Rowe said that he received the Ford Galaxie motor vehicle from Mr Rodgers in lieu of payment for carpentry work done on a fire damaged house at 38 Kummer Crescent, Masterton between August 2010 and November 2010. He places a value on the work and the vehicle of $14,000. He says he took ownership of the vehicle in late November 2010 and on 4 December 2010 he was taken into custody, where he remains. The matters on which he is currently imprisoned are unrelated to Mr Rodgers' convictions for drug dealing activities.[6] At the time Mr Rowe went into custody, he said he organised with his then partner, Carolyn Clarke, to have the Ford Galaxie put into her name, so that theregistration could be kept up to date. Ownership was duly changed into Ms Clarke's name on 14 December 2010 and the vehicle was stored at the couple's then addressof 22 Fleet Street, Masterton, from December 2010 until May 2011.[7] Mr Rowe and Ms Clarke separated amicably following his incarceration. The Ford Galaxie was then moved into temporary storage at 305 Hinukura Road, Masterton on 27 May 2011. Mr Rowe says this was done on his behalf.[8] The vehicle was subsequently seized from the Hinakura Road address on 23 June 2011 by police pursuant to the Criminal Proceeds (Recovery) Act 2009, as part of the investigation into Mr Rodgers and his activities, known as Operation Morph.[9] Mr Rowe's evidence is that he had no involvement in any of the charges arising from Operation Morph; nor has he ever benefited from any criminal proceeds in relation to any offending by Mr Rodgers.[10] Mr Rowe challenged the Crown's view that Mr Rodgers had maintained effective control over the Ford Galaxie at all material times. He pointed out that, ofall of the vehicles allegedly in Mr Rodgers' ownership and control and which are now the subject of the restraining order, the only challenge being mounted was his challenge to the ownership of the Ford Galaxie motor vehicle. No other vehicle was the subject of challenge and that must be significant in itself. He reiterated that he had not benefited from Mr Rodgers' criminal activities, stating:You know, I innocently done some work for a guy, I got a car in lieu of payment and then it got taken on his crime with nothing to do with me. SoI'm sort of, you know I'm sort of – I've lost, you know I've been in custody for, for all of this, you know I'm sure if I was out there I don't think the carwould have even been at his address [11] Under cross-examination, it was put to Mr Rowe that the temporary storage of the vehicle, allegedly on his behalf following his arrest, was at an address associated with Mr Rodgers. Mr Rowe agreed with that, but said it was Ms Clarke who had "organised for the car to go somewhere, unbeknown to me I was locked up and that's where it went".11 Police located the Ford Galaxie motor vehicle at the address of Theresa Oporu, the aunt of[12] It was further put to Mr Rowe that a handwritten typed note in the name of Ms Clarke, recording that she acknowledged that ownership of the Ford Galaxie belongs to Mr Rowe and that the vehicle was put into her name while he was in custody so that she could look after it and keep the registration current, was not a true and correct statement. Mr Rowe's response was that Ms Clarke came andvisited him in prison and signed the note because it did reflect the true situation.[13] Various statements in the affidavit of Detective Constable Neville, an investigator attached to the Central Asset Recovery Unit of New Zealand Police in Wellington, were also put to Mr Rowe. For example, it was put to Mr Rowe that,during the period he was working on Mr Rodgers' house, Mr Rodgers received aconsignment of 10 ounces of methamphetamine. This was in October 2010. Mr Barr's suggestion was that, "given the scale and the period of time over which Mr Rodgers was dealing in methamphetamine, it is not credible for you to say youdidn't know of what Mr Rodgers was doing?" That, however, was categorically denied by Mr Rowe, who said, "I was just a guy there doing some work on an old house, mate it's got nothing to do with me what this other guy's up to".[14] In relation to the putative value of the Ford Galaxie, Mr Rowe refuted that it was in the region of $40-45,000. This value arose in the context of an intercepted telephone call on 22 May 2011between Mr Rodgers, while he was in prison, and Ms Cole, during which they had an initial discussion about someone wanting to buyone of Mr Rodgers' cars. During the call there was reference to "a black phone thing". The police say this is a reference to the Ford Galaxie. At a disputed fact hearing, Ms Cole in evidence said that, during this discussion between herself and Mr Rodgers, Mr Rowe took the phone from her and continued the discussion with Mr Rodgers. It was put to Mr Rowe, both that he took over the phone call; and that the telephone discussion concerned the sale of the black Ford Galaxie. This was denied by Mr Rowe, who said the evidence that Ms Cole was instructed to sell the Galaxie for $40,000 in that May 2011 phone call was news to him and had upset him when he first read about it in the police documents. He said it seemed as if other people had been working against his interests while he was in prison.daughters of Kelly Cole, Mr Rodgers' partner.[15] Passages in Detective Neville's affidavit, referring to a statement Ms Clarke subsequently made to the police stating her belief that the Ford Galaxie motor vehicle belonged to Mr Rodgers and that Mr Rowe had always told her that, were also denied by Mr Rowe.Discussion[16] Despite Mr Rowe's evidence that he sincerely believed that at all material times the Ford Galaxie motor vehicle had been transferred into his ownership in lieu of payment for work he carried out on Mr Rodgers' house, the evidence gathered bypolice, including interception evidence, establishes a different state of affairs.[17] In particular, Ms Clarke's formal written statement to police satisfies me beyond reasonable doubt that, while the car might have been transferred into Ms Clarke's name, it effectively remained in Mr Rodgers' ownership and Ms Cole continued to be the person dealing with all aspects of its storage and registration, as well as its possible sale and the price for that. Ms Clarke's unequivocal statement on the issue was:I never actually saw Porky driving the Galaxie, but I was in no doubt that it was his car.Stephen had always told me that it was Porky's car.It was registered in my name but neither I, nor Stephen ever had any financial interest in the vehicle.I have never even driven the car.At one point after the car was gone, I took the change of registration slip that I got when I put the car in my name, to Kelly to see if she wanted it.Kelly told me to hold onto it.To the best of my knowledge the vehicle has never been transferred out of my name, and until Police came to tell me that they had it, I had no idea where it was.[18] Ms Clarke's statement is supported by the earlier 22 May 2011 telephone call to Mr Rodgers, initiated by Ms Cole whilst Mr Rodgers was in prison. I find this to be so, even if Mr Rowe were not a participant in that telephone call. The content andtenor of the call is again a strong indication that Mr Rodgers and Ms Cole had control over the Ford Galaxie and its disposition.[19] Of further evidential weight is the earlier telephone call in December 2010, made to the New Zealand Transport Agency for the purpose of obtaining a licence exemption for the Ford Galaxie. This call was initiated by Ms Cole. It was intercepted by police. Although the telephone was handed over by Ms Cole to Ms Clarke to make the actual arrangements, at the end of the call Ms Cole was heard to relay the resultant information to a person called "Pork", a name by whichMr Rodgers is known.[20] A further aspect is that the Ford Galaxie was located by police on land immediately adjacent to where another of Mr Rodgers' vehicles, a 2004 GMC Sierra motor vehicle, was also found. That vehicle was acknowledged by Mr Rodgers to be in his ownership.[21] In conclusion therefore, and despite Mr Rowe's testimony to the contrary, Ifind the above matters sufficient to satisfy the Court that the 1965 Ford Galaxie motor vehicle should not be excluded from the restraining order in favour of the Commissioner and the application is dismissed.Result[22] The Commissioner's application for the sale of the restrained vehicles,pending resolution of the issue of forfeiture, is granted.[23] Mr Rowe's application to have the 1965 Ford Galaxie motor vehicle excluded from the restraining order is dismissed.Goddard J