Commissioner of Police v Hanna

[2022] NZHC 2048

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-720

[2022] NZHC 2048

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

applications under sections 43, 44 and 52

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

MICHAEL PATRICK SHEERAN HANNA

Respondent

Hearing:

15 August 2022

Counsel:

V Rea for Applicant

No appearance for Respondent

Judgment:

18 August 2022

JUDGMENT OF MALLON J

Introduction

[1]                 The Commissioner seeks determination of  a  forfeiture  application  dated  12 February 2020 that seeks forfeiture of $7,020 cash. The cash is subject to a restraining order made on 6 October 2020.

Background

[2]                 Mr Hanna was charged with and pleaded guilty to methamphetamine offending.  He  was  sentenced  to  six  years’ imprisonment  for  that  offending  on 6 September 2019. A profit forfeiture order was made against Mr Hanna on the basis that he derived an unlawful benefit of $5,016,000 from significant criminal activity.

THE COMMISSIONER, THE NEW ZEALAND POLICE v HANNA [2022] NZHC 2048 [18 August 2022]

[3]                 On 7 June 2019 the Police were contacted by a neighbour of Mr Hanna’s mother. She had discovered the $7,020 (denominations of $100, $50 and $20 notes held together with a rubber band and wrapped in glad wrap) while trimming the hedge of a common driveway she shares with Mr Hanna’s mother. The neighbour rang the mother and was given to understand that Mr Hanna claimed the money. She gave the cash to the Police the next day.

[4]                 The forfeiture application was filed. An on notice restraining application was also filed. Mr Hanna was served with these applications but has filed no notice of opposition to them. The Police now seek the asset forfeiture order.

Assessment

[5]                 The Court must make an asset forfeiture order of the cash if it is satisfied on the balance of probabilities that the cash is “tainted”.1 Tainted property is property that has been acquired as a result of, or directly or indirectly derived from, significant criminal activity.2 Inferences may drawn from a respondent’s failure to oppose the application.3 Inferences may also be drawn from the circumstantial evidence.4

[6]                 Here the evidence is that Mr Hanna was convicted of serious drug offending, that qualifies as serious criminal offending. He received an unlawful benefit of over

$5 million from this offending. The way the cash was bundled and hidden is indicative of cash associated with drug dealing. Another neighbour gave a statement that she had previously found cash bound by a rubber band under some plants. Cash was also found in a search of a South Auckland address attributed to Mr Hanna. Mr Hanna has provided no explanation as to the source of the cash, has not claimed any interest in it and declined to comment when the Police asked him about it. Mr Hanna’s mother has not claimed that the money was hers. No other person has claimed an interest. I am satisfied, on the balance of probabilities, from these circumstances viewed as a whole that the cash is tainted property.

1      Criminal Proceeds (Recovery) Act 2009, s 50.

2      Section 5 (definition of “tainted property”).

3      Commissioner of Police v Law [2021] NZCA at [30]–[31].

4      As discussed, for example, in Commissioner of Police v de Wys [2016] NZCA 634.

[7]                 When no person has claimed an interest in the property the Court must be satisfied, on the balance of probabilities, of the following additional matters:5 a restraining order was earlier made in relation to the same property; the restraining order was in place for a period of at least a year; and the Commissioner has contacted or made all reasonable efforts to contact any person that the Commissioner believes may have an interest in the property. I am satisfied of these matters.

Result

[8]                 Accordingly, and as advised at the hearing of this application, the asset forfeiture order is made in accordance with the 12 February 2020 application.

Mallon J

5      Criminal Proceeds (Recovery) Act, s 50(4).