Blackler v Police [2013] NZHC 1003 (7 May 2013)

Last Updated: 15 May 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000088 [2013] NZHC 1003

BETWEEN SEAN ANTHONY BLACKLER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 May 2013

Counsel: B J Hunt for Appellant

I R Murray for Respondent

Judgment: 7 May 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.50pm on the 7th day of May 2013.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction

[1] Mr Blackler appeals a decision of Judge Hobbs delivered in the Wellington District Court on 27 September 2012, in which he ordered that $15,000 be forfeited to the Crown pursuant to s 32(3) of the Misuse of Drugs Act 1975 (the Act).

[2] I have decided to allow the appeal because I have had the advantage of hearing and considering significant evidence that was not made available to Judge Hobbs. Had I been required to make my decision solely on the basis of the evidence presented to Judge Hobbs then I would have reached the same decision as

_{he did.}

BLACKLER V NEW ZEALAND POLICE HC WN CRI-2012-485-000088 [7 May 2013]

(1) traverse the background to the Crown’s application for a forfeiture

order under s 32(3) of the Act;

(2) summarise Judge Hobbs’ decision;

(3) set out the new evidence and why I have accepted it; and

(4) summarise my decision.

Background

[4] On 25 November 2011 Mr Blackler was sentenced to two years and ten months’ imprisonment for offences under the Act. Those offences included the supply of LSD, a class A controlled drug. Mr Blackler pleaded guilty to the charges against him.

[5] When the police searched Mr Blackler’s garage in Miramar as part of the operation that led to the charges, they located two bags in the rafters of his garage. Those bags contained $6,300 and $14,780 in cash.

[6] After Mr Blackler was sentenced the police applied under s 32(3) of the Act for orders that the money found in Mr Blackler’s possession be forfeited to the Crown. Section 32(3) provides for the forfeiture of money found in the possession of a person convicted of offences under the Act when a Judge is satisfied that the money in question was received “in the course of or consequent upon the commission of that offence, or was in the possession of [the defendant] for the purpose of facilitating the commission of an offence ...” under s 6 of the Act. Any forfeiture is additional to any other penalty imposed under the Act.

[7] Mr Blackler opposed the application for a forfeiture order in relation to

$15,000 of the total amount seized by the police. He claimed that money had been acquired innocently and in fact belongs to a Mr Manzone.

[8] Mr Blackler explained to Judge Hobbs that he is a motor vehicle enthusiast, as is Mr Manzone. Apparently Mr Manzone has a classic Ford Bonus truck, which I understand was only manufactured in 1948 and 1949. Mr Blackler knew of a similar vehicle in Blenheim and explained that Mr Manzone gave him $15,000 to go to Blenheim, buy the truck and bring it to Wellington for him. Mr Blackler and Mr Manzone said that they recorded this arrangement in a handwritten note which Mr Manzone produced as an exhibit. The exhibit reads:

8th July 2011

Received from [Mr Manzone] $15,000 (fifteen thousand) for a 48-49 Ford Bonus truck with 351 Windsor to be delivered within 1 week or money returned.

Sean Blackler

The reference to a 351 Windsor is to the motor in a Ford Bonus truck.

[9] The police arrested Mr Blackler and seized the money in question on 12 July

2011. When the police searched Mr Blackler’s home they found an envelope with the words “Ford Bonus” and a telephone number written on the envelope.

[10] When Mr Manzone was cross-examined in the District Court. He said that he had withdrawn $12,000 from one of his bank accounts about eight or nine months before he and Mr Blackler made their arrangements in relation to the Blenheim Ford Bonus truck. Mr Manzone gave that money and another $3,000 to Mr Blackler. Mr Manzone did not produce any bank statements to verify this aspect of his evidence when he gave evidence in the District Court.

[11] Mr Manzone also told Judge Hobbs that:

(1) he had originally withdrawn the $12,000 to buy a car. That arrangement did not eventuate;

(2) a few months later, in February 2011, he purchased a Harley Davidson motorcycle from Trade Me and made an electronic transfer of $11,000 to the vendor using money in two bank accounts rather than the $12,000 cash he said he still had stored in his bedroom.

[12] Judge Hobbs rejected both Mr Blackler and Mr Manzone’s evidence. His Honour concluded that all of the money found in Mr Blackler’s possession was received by him from drug dealing. Judge Hobbs reached this decision for the following reasons:

(1) All of the cash was kept by Mr Blackler in a form that was consistent with him acquiring that money from dealing in LSD;

(2) The bag containing $14,780 was found in a bag next to another bag containing $6,300 which Mr Blackler accepted was derived from his LSD dealings;

(3) There was not $15,000 in the bag which Mr Blackler claimed from

Mr Manzone. There was no rational explanation for the “missing”

$220 but Mr Blackler explained $220 was removed when he rearranged the money in the bag;

(4) There was no plausible explanation from Mr Manzone having

$12,000 which was not shown to have come from any bank account.

The new evidence

[13] When this appeal was called before me on 9 April 2013 I granted Mr Blackler’s application to present further evidence in the form of additional affidavits from Mr Blackler and Mr Manzone. I also gave the Crown leave to cross- examine both Mr Blackler and Mr Manzone. This occurred in the hearing before me today.

Bank statements

[14] Mr Manzone has now obtained his bank statements which show that on

23 August 2010, $12,000 was withdrawn from his bank account. That occurred

close to ten months before Mr Blackler and Mr Manzone say they made their arrangements about the Blenheim Ford Bonus truck.

[15] Mr Manzone explained he did not access his bank statements before the District Court hearing because he did not know they were available for the period in question.

Statement to Mr Blackler’s lawyer

[16] Mr Blackler has now provided evidence that shows he spoke to his lawyer about the arrangements he says he made with Mr Manzone in relation to the Ford Bonus truck in Blenheim, before the Crown applied for forfeiture orders. The record of the statements Mr Blackler made to his lawyer is entirely consistent with Mr Blackler’s explanation that there was an innocent account for $15,000 of the money found in his possession by the police. That prior consistent statement is admissible under s 35 of the Evidence Act 2006 because it is a response to the Crown’s challenge to Mr Blackler’s veracity and its claim that Mr Blackler’s explanation for

the money is a recent invention.[1] That evidence was not produced in the hearing

before Judge Hobbs because its relevance only became apparent during the cross- examination of Mr Blackler.

[17] I appreciate it is possible to argue that both pieces of evidence were not fresh in the sense they existed before the District Court hearing was conducted. The purpose underpinning the high threshold for the admissibility of new evidence is the need to ensure litigants present all relevant and available evidence in the first instance rather than through an iterative process. This concern is driven by the desire to bring finality to litigation. However, in my view this is one of those rare cases in which the interests of justice required me to receive and consider the new

evidence.[2] In concluding that I should consider this new evidence I have borne in

_{mind Lord Atkins’ aphorism that “finality is a good thing; but justice is better”.}[3]

[18] I have accepted this new evidence which I believe is cogent and highly relevant for the following reasons:

(1) The evidence of the bank statements supports the evidence which Mr Manzone gave in the District Court that he withdrew $12,000 approximately eight to nine months before making any arrangements with Mr Blackler over the acquisition of the Blenheim Ford Bonus truck. I am sure if Judge Hobbs had the benefit of that evidence he would not have dismissed Mr Manzone’s explanation for having

$12,000 as being implausible.

(2) The evidence of the bank statements, and the notes of Mr Blackler’s

statements to his lawyer supports the written acknowledgement dated

8 July 2011 from Mr Blackler that he had received $15,000 from

Mr Manzone to purchase a Ford Bonus truck.

(3) This same evidence supports the evidence on the envelope found by the police when they searched Mr Blackler’s home which records the telephone number of the owner of the Blenheim Ford Bonus truck.

[19] I have also had the benefit of assessing Mr Blackler and Mr Manzone’s

credibility when being cross-examined in relation to this new evidence.

[20] With the assistance of the new evidence I am satisfied that there was indeed an innocent explanation for $15,000 of the money found in Mr Blackler’s possession. The new evidence consists of contemporary records which provide an objective basis upon which to assess the plausibility of Mr Blackler’s explanation for the $15,000 in question.[4]

[21] When all the evidence that I now have available to me is considered, the explanation provided by Mr Blackler and Mr Manzone is not implausible. On the contrary, I am satisfied on the balance of probabilities that the $15,000 in question

_{belongs to Mr Manzone.}

Conclusion

[22] The appeal is allowed. The police should now return the $15,000 to

_{Mr Manzone who is the rightful owner of that money.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington for Respondent

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[1] _{Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [51].}

[2] _{R v Bain [2004] 1 NZLR 638 (CA) at [22]-[27] and Noble v R [2009] NZCA 507.}

[3] Ras Behari Lal v King Emperor (1933) 50 TLR 1, (1933) 60 IA 354 (PC).

[4] See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.