THE QUEEN v SYDNEY EDWARD GIBBONS [1999] NZCA 66 (4 May 1999)

IN THE court of appeal of new zealand

ca75/99

THE QUEEN

V

SYDNEY EDWARD GIBBONS

Hearing:	4 May 1999
Coram:	Richardson P Keith J Salmon J
Appearances:	C M White for Appellant M J Thomas for Respondent
Judgment:	4 May 1999

judgment of the court delivered by SALMON J

[1] This appeal under s383 of the Crimes Act 1961 is against a decision of Tompkins DCJ ordering that an amount of $2,350 cash located by the police during a search of the appellant's property at 13 Clyde Road, Otara on 23 October 1998 be forfeited to the Crown.

[2] The order was made pursuant to the provisions of s32(3) Misuse of Drugs Act 1975.Contemporaneously an application by Mr Gibbons under s199 of the Summary Proceedings Act 1953 for return of the money was dismissed.

Background

[3] On 23 October 1997 the police executed a search warrant at the appellant's home address at 13 Clyde Road, Otara.A trap door was found in the floor underneath the carpet in the defendant's bedroom.Inside a specially constructed cavity beneath the trap door police located approximately 1 kilogram of the Class C controlled drug cannabis.The police found a further cavity in the wall inside a hall cupboard.Hidden within that cavity were two plastic bags containing cannabis and cannabis roaches and a further plastic bag containing $2,350 cash, made up mostly of $20 notes.

[4] The appellant was charged pursuant to s6(1)(f) of the Misuse of Drugs Act, with possession of cannabis for supply.He pleaded not guilty to that charge and elected trial by a jury.At his trial the appellant advanced a defence of personal use of the drugs.The jury did not accept that defence and found him guilty of the charge.

[5] Also at trial the appellant in evidence gave an explanation relating to the $2,350.

[6] In his judgment relating to forfeiture the Judge described the explanation given by the appellant at trial as to the source of the amount of $2,350 as follows:

At trial, Mr Gibbons gave evidence, and produced exhibits to substantiate his evidence, to the effect that the cash stored with the cannabis in the plastic bags in the concealed hiding place arose not from any cannabis purchases or dealing, but rather related to his function as treasurer of the "Tribesman" motorcycle club.He produced a hard cover exercise book stamped on the inside front cover with the words "The Tribesman Motorcycle Club".This contains two pages with the first names (and in some cases what seem to be nicknames) of some 24 persons in a column on the left hand side, and next to which are 13 hand ruled columns with weekly dates at the head of each column.Next to each name and under the date headings, are hand-written the figure "20".This was said by Mr Gibbons to represent weekly subscriptions by those persons as members of the motorcycle club.In some cases the word "auto" (presumably meaning automatic payment) appears, or stars are drawn in, or in some cases the column is left blank.

At trial Mr gibbons explained this book as representing his record of the subscriptions paid by the named members to Mr Gibbons as treasurer of the motorcycle club.In support of this explanation he produced a receipt book, again stamped on the inside fly leaf with the words "The Tribesman Motor Cycle Club", which contained carbon copies of receipts issued in date order to persons whose names correspond with the names written in the exercise book. There is not a complete correlation, however, as the receipts proceed in chronological fashion between 2 June 1997 and 25 August 1997, after which no further receipts have been written out in the book.By contrast, in the exercise book containing the columns, records of payments of $20 per week continue up to, in some cases, 13 October 1997 or thereabouts.

Mr Gibbons also produced as exhibits power accounts addressed to him at his address but prima facie relating to the supply of electricity to 26 Onslow Avenue Papatoetoe (the clubrooms of the motorcycle club), which record payments made on various dates in August and September 1997.Mr Gibbons said that these accounts were paid by him from the weekly subscriptions paid by members, together with the proceeds of certain fund raising activities including the sale of what are termed "Fluro Lotto" tickets (a sample of which was produced as trial).

In essence, Mr Gibbons asserted that the $2,350 located by the Police was held by him for legitimate and explicable purposes, and that it was only coincidence that he placed it for safe-keeping in the same hiding place into which he had also placed the cannabis he possessed (in accordance with the verdict of the jury) for the purposes of sale.

[7] As a result of the conviction the Judge sentenced the appellant to two years' imprisonment, suspended for 18 months.He further sentenced the appellant to supervision for 18 months on the condition that he undertake residential or non-residential drug treatment programmes and psychological counselling for dependency as directed by his probation officer.

[8] At the request of the Crown he adjourned the issue as to forfeiture of the money to a later date.

[9] On 23 October he heard argument in relation to that issue and an application made by the prisoner for the return of the money.

[10] In the course of his judgment following that hearing he referred to the decision of this Court in R v Collis (1990) 5 CRNZ 445, which was relied upon by counsel for the appellant and which is referred to again below.

[11] He noted that the burden of proof was on the Crown on the balance of probabilities to prove that the cash found was held for the purpose of acquiring further cannabis for resale.He recorded the Crown's reliance in support of its application on a combination of circumstantial evidence together with the previous criminal history of Mr Gibbons.Mr Gibbons had five previous convictions for selling cannabis, one previous conviction for offering to sell cannabis and seven previous convictions for possession of cannabis.

[12] The Crown's submission was that Mr Gibbons was involved in a wholesaling operation and that the money he possessed was held by him as a "float" to enable further purchases of cannabis which would then be resold by him.

[13] The Judge concluded that the Crown should succeed and that the $2,350 cash, together with the cannabis should be forfeited to the Crown and he gave the following reasons to support his conclusion:

1. I do not accept Mr Gibbon's evidence that this particular cash amount was derived from the payment of "subscriptions" and other fund raising activities carried out by the motor cycle club.Apart from Mr Gibbons' oral evidence, there is nothing to connect his functions as treasurer or the fund raising activities carried on by the motor cycle club (as evidenced by the exhibits I have described) with this particular plastic bag full of cash.The jury rejected Mr Gibbons' evidence as to the cannabis being possessed solely for his personal use, and in common with them I reject this evidence given by him as well.

2. The circumstantial evidence relied on by the Crown is, in my view, sufficiently strong.A very large amount of cannabis material was located by the Police during their search of Mr Gibbons' property.For money raised from innocent activities to be hidden in the same place as cannabis, but unrelated to it, strains credibility.I consider that a much more likely explanation is the one advanced by the Crown, namely that the money represented the proceeds of cannabis dealing and was held by Mr Gibbons for the purpose of purchasing more cannabis which would then be sold.I conclude the Crown were on strong ground when they submitted that this money represented Mr Gibbons' "float".I conclude that it was therefore money possessed by Mr Gibbons for the purpose of facilitating an offence against s6, namely the possession of cannabis for the purpose of sale.

3. Mr Gibbons' previous criminal history demonstrated that he is a man given to dealing in cannabis over extensive periods of time.I consider that I can properly take that criminal history into account when deciding this application.To my mind, it shows not only that Mr Gibbons was likely to have possessed money for the purpose of wholesale amounts of cannabis for sale by him, but it also is relevant to my assessment of his credibility.

4. In common with Wylie J in R v Collis, I have concluded that, in all the circumstances of this case, to order forfeiture of the cash found with the cannabis would "accord with what I believe the public conscience would expect". (R v Collis per Wylie J at 464).

The Arguments in this Court

[14] Section 32(3) of the Misuse of Drugs Act provides as follows:

If, on the conviction of any person for an offence against section 6 of this Act, the Judge or District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

[15] It was common ground in this Court that the direction in subs(3) that the Court must be "satisfied" means that the relevant standard of proof is on the balance of probabilities.It is also common ground that the provision which the Crown had to rely upon was the second alternative in subs(3), that is to say that the money "was in the possession of that person for the purpose of facilitating the commission of an offence against that section".

[16] The other prerequisites are fulfilled.The appellant was convicted for an offence against s6.

[17] For the appellant, Mr White argued that although the standard is the balance of probabilities, it must also be a standard proportionate to gravity and he referred to R v Wong (HC Palmerston North, T28/94, 14 September 1994) a decision of McGechan J where that Judge stated at page 3:

The standard of proof is to be determined on the basis of the statute's direction that the Court must be "satisfied".Given the usual meaning attributed to that word, I accept it does not mean beyond reasonable doubt, and balance of probability will suffice, but where the confiscation of property is concerned (and let there be no mistake, that is what this statute empowers), it is proper to require proof within that standard proportionate to gravity, particularly bearing in mind Bill of Rights construction considerations.

[18] Mr White went on to argue that property ownership is a fundamental freedom in New Zealand society and that therefore s6 of the New Zealand Bill of Rights Act 1990 applies.The flaw in that argument is, of course, that s6 is directed to those rights and freedoms set out in the Act.Mr White accepted that property ownership is not included.

[19] Nevertheless we accept that an order confiscating property is a serious matter and should be so treated but there is nothing in the judgment of Tompkins DCJ to suggest that he did not approach the matter in that way.

[20] The judgment in R v Collis is of no assistance in this case because it was accepted in that case that neither of the conditions in s32(3) was satisfied.It was for that reason that the majority of the Court upheld the decision that the respondent was entitled to have his property returned to him.

[21] Mr White then argued that there was insufficient evidence to enable the Judge to conclude that the second limb of subs(3) was satisfied.

[22] It is essentially a question of fact as to whether the evidence establishes that the money was held for the purpose of facilitating the commission of an offence.The Judge heard the appellant's explanation as to the purpose for which the money was held and rejected it.He drew the inference from the circumstantial evidence and the fact of the significant list of previous convictions, that the money was held for the purpose of the commission of an offence under s6.

[23] In our view there was ample evidence to allow the Judge to reach the conclusion that he did.

[24] The appeal is therefore dismissed.

Solicitors:

CM White, Whangarei for Appellant

Crown Law Office, Wellington for Respondent