THE COMMISSIONER, THE NEW ZEALAND POLICE v ADAMS [2022] NZHC 2249

THE COMMISSIONER, THE NEW ZEALAND POLICE v ADAMS [2022] NZHC 2249 [5 September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-559[2022] NZHC 2249UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER of an application under sections 22, 24 and25 of the ActBETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND PAULA MAREE ADAMSRespondentWESTPAC NEW ZEALAND LIMITEDFirst Interested PartyLEGAL SERVICES COMMISSIONERSecond Interested PartyHearing: On the PapersCounsel: A W M Britton for ApplicantJudgment: 5 September 2022JUDGMENT OF McQUEEN J[1] The Commissioner of Police applies, without notice, for restraining ordersunder ss 24 and/or 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act).1[2] The orders are sought in relation to the following property:1 Section 18 of the Act empowers the Commissioner to apply for restraining orders.(a) interests in a property at 81 Taylor Terrace, Tawa, Wellington,registered in the name of the respondent (other than the interests ofWestpac New Zealand Ltd under a registered mortgage and the interestof the Legal Services Commissioner); and(b) cash to the value of $68,380.00 located on 30 June 2022 at the 81 TaylorTerrace property and currently held in the New Zealand Police TrustAccount.[3] The orders are sought on the basis that there are reasonable grounds to believethat the property is "tainted property" as defined in s 5 of the Act and/or that therespondent has unlawfully benefitted from significant criminal activity as defined in s7 of the Act. The application is made without notice under s 22 of the Act on thegrounds that there is a risk that the proposed restrained property may be disposed ofor concealed, if notice were to be given to any or all persons who have an interest inthe proposed restrained property, including the respondent.[4] The application is supported by the affidavit of Constable Karima TheresDahdouli affirmed on 30 August 2022.[5] As regards the appropriateness of the application proceeding on a withoutnotice basis, Constable Dahdouli notes in their affidavit:(a) There is significant risk the 81 Taylor Terrace property could bedisposed of or concealed if notice of these proceedings was given to therespondent.(b) The current equity held in the residential property would be relativelystraightforward to use as security against a loan, either throughmainstream or alternative financial institutions, thereby dissipating theequity in the property.(c) The Commissioner acknowledges that the respondent is currentlyremanded in custody and that this may hinder her attempt to deal withthe property. However, prisoners do have access to communicationmethods including phone and email, and it would not be difficult forthe respondent to arrange the disposal or concealment of property ofinterest to this litigation.(d) There is also the potential for the respondent to be granted bail, whichmay increase the risk of disposal or concealment of the property inquestion.(e) The respondent has previously been subject to restraint and forfeitureproceedings. The property restrained was the 81 Taylor Terraceproperty. Those proceedings were resolved by a settlement after whichthe respondent forfeited certain funds and retained the property at81 Taylor Terrace.[6] In light of the affidavit evidence, I am satisfied that it is appropriate that theapplication proceeds on a without notice basis.[7] Turning then to the substantive orders. I must believe, on reasonable grounds,that either:(a) the property over which the orders or sought is "tainted property", asdefined in s 5(1) of the Act:(a) 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;or(b) the respondent has unlawfully benefitted from significant criminalactivity as defined in section 7:unless the context otherwise requires, a person has unlawfullybenefited from significant criminal activity if the person hasknowingly, directly or indirectly, derived a benefit from significantcriminal activity (whether or not that person undertook or wasinvolved in the significant criminal activity).[8] "Significant criminal activity" is defined in s 6 of the Act to include any activitythat would amount to offending punishable by a maximum term of five or more years'imprisonment. This is irrespective of whether the respondent has been charged,convicted or acquitted of the offence.[9] Having reviewed the material, I consider there are reasonable grounds tobelieve that the property is tainted and the respondent has unlawfully benefitted fromsignificant criminal activity for the following reasons, as addressed in the affidavit ofConstable Dahdouli:(a) The respondent faces charges for the possession of methamphetaminefor supply, and possession of cannabis for supply. These chargesrespectively carry a maximum penalty of life or eight years'imprisonment. The respondent is currently remanded in custody inrelation to this offending. She has nine previous convictions foroffences against the Misuse of Drugs Act 1975.(b) Upon the execution of a search warrant (from which the current chargesresult), a substantial amount of cash was found hidden in therespondent's bedroom, stored very close to controlled drugs. Takinginto account her declared income and where the cash was found, itappears unlikely she earned this money through legitimateemployment.(c) There are inconsistencies between the respondent's declared incomeand expenditure, and the accumulation of assets.[10] Having reviewed the documentation filed by the applicant, I am satisfied thatit is appropriate for restraining orders to be made in relation to the specified property,under s 24 and 25 of the Act.[11] The Court makes restraining orders under s 24 and 25 of the Act as follows.(a) The following property (collectively, the Property) shall not bedisposed of, or dealt with, by any person other than as provided for inthis order and is to be under the Official Assignee's control and custody:(i) All interests in the property at 81 Taylor Terrace, Tawa,Wellington, registered in the name of the respondent,Paula Maree Adams, described in the certificate of titleWN21A/569, legal description Lot 56 Deposited Plan 20176,other than the interests of Westpac New Zealand Limited underregistered mortgage 5415577.3 and the interest of the LegalService Commissioner; and(ii) Cash to the value of $68,380.00 located on 30 June 2022 at81 Taylor Terrace, Tawa, Wellington, and currently held in theNew Zealand Police Trust Account.McQueen JSolicitors:Crown Solicitor, Wellington, for the applicant