Police
got short shrift in the High Court criticised for some lazy detective work when
seeking an asset forfeiture order claiming $1.5 million was the proceeds of
tainted drug money. Cash of only
$61,000 was ordered forfeit with a tart comment from the bench that it is not
the job of the courts to do the police’s work for them.
Assets believed to be the fruit of criminal
activity can be seized following a court order under the Criminal Proceeds
(Recovery) Act. Police need to prove “on
the balance of probabilities” that unexplained wealth is the proceeds of
crime. To avoid seizure, it is then for
the offender to provide a legitimate explanation.
Justice Ellis was very critical of the Police
approach to an asset forfeiture claim against convicted Auckland dealer Mr Le
He. In November 2013, Mr He pleaded
guilty to one charge of possessing psuedoephedrine for supply. ContacNT weighing 10.3 kg with a street value
of $500,000 was found in a storage unit owned by Mr He. The volume of ContacNT seized meant Mr He was
deemed to be a dealer. The then maximum
penalty for deemed supply was eight years jail.
Evidence indicated Mr He was storing the drug for someone else. He was sentenced to 12 months home detention
and six months’ commmunity work.
Police then applied for an asset forfeiture
order looking to sell Mr He’s home at Murvale Drive in Buckland’s Beach,
Auckland. Police claimed he had made at
least $1.5 million from his offending.
This figure of $1.5 million included cash found at the storage unit
($61,000), cash found at his home ($4,400) together with cash deposits and
other deposits made through bank accounts operated by both Mr He and his wife.
Justice Ellis said it is all too easy for the
the Police to simply go through an offender’s bank accounts and list every
deposit made, claiming each is the proceeds of crime. I would have expected, Her Honour said, that
some attempt would be made to ascertain whether there were obvious and
plausible explanations for some, if not all, the deposits. She asked the Police to redraft their
accounting evidence and was equally critical of their second effort when the
asset forfeiture trial resumed after a two month delay.
Mr He conceded that the $61,000 cash found in
the storage unit was the proceeds of crime.
This was ordered forfeit to the crown.
Justice Ellis said her analysis of the accounting
information satisfied her that the various bank deposits are more likely than
not to have a legitimate source: income from Mr He’s concrete flooring company;
income from his wife’s employment as a machinist together with revenue from a
retail store she later opened; rent collected for rooms they let from their
home and funds progressively brought to New Zealand from China as part of their
visa obligations as long-term business migrants.
Police
v. He – High Court (21.4.15)
15.034