Commissioner of Police v Kite
[2025] NZHC 1126
•12 May 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2024-406-026
[2025] NZHC 1126
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an on-notice application for a restraining order pursuant to ss 21, 24, 25, 33 and 34
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
JOEL LAWRENCE KITE
First Respondent
TONY JAMES KITE
Second RespondentKEENAN AWARANGI TE HORE
First Interested Party
MATIU WILLIAM RHIND
Second Interested PartyPOLYETHYLENE PIPELINE FABRICATIONS LIMITED
Third Interested Party
On the papers: Counsel:
J M Webber and M Harris for Applicant E J Riddell for First Respondent
R A Harrison for Second Respondent
Judgment:
12 May 2025
JUDGMENT OF GRAU J
[Application for on-notice restraining orders, effective control orders and sale orders]
THE COMMISSIONER OF POLICE v KITE [2025] NZHC 1126 [12 May 2025]
[1] This judgment determines the 14 April 2025 amended application by the Commissioner of Police (Commissioner) for on-notice restraining orders, effective control orders and sale orders under the Criminal Proceeds (Recovery) Act 2007 (the Act).
[2] A minute of La Hood J dated 4 February 2025 records that the second respondent does not oppose the Commissioner’s application. The first respondent and the three interested parties have been served, but they have taken no steps in relation to the application.1 The Commissioner has filed a memorandum setting out the legal and factual basis for the application and it has been referred to me for a decision on the papers.
Background
[3] On 8 November 2024, McQueen J granted the Commissioner’s without notice application to restrain the following property:2
(a)A Black 2013 Harley Davidson VRSCF V-Rod Night Special motorcycle registration A9WFJ (VIN 1HD1HHH13DC810217; engine number HHHD810217) and all associated keys and immobilisation devices, registered to Keenen Awarangi Te Hore at 22 Rata Place, Blenheim (Black V-Rod).
(b)A Teal 2013 Harley Davidson V-Rod motorcycle registration C6EKG (VIN 1HD1HPH10DC800996; engine number HPHD800996) and all associated keys and immobilisation devices, registered to Matiu William Rhind at 1/1 Hutcheson Street, Blenheim (Teal Blue V- Rod).
(c)A 2005 Toyota Hilux 3.0TD 4WD SR5 DCU 5M utility registration CUR118 (VIN MR0FZ29G401515882; engine number 1KD-9346838) and all associated keys and immobilisation devices, registered to
1 Commissioner of Police v Kite CIV-2024-406-000026 Minute of La Hood J, 4 February 2025.
2 Commissioner of Police v Kite [2024] NZHC 3329.
Polyethylene Pipeline Fabrications Limited at 4 Keiss Street, Blenheim (Hilux).
[4] In her decision, McQueen J set out (what were at that stage) the allegations against the respondents:3
[10] In summary, it is alleged that Joel Kite and Tony Kite were involved in the commercial supply of methamphetamine in Blenheim, which was detected as part of a criminal investigation, code-named Operation Bear, conducted by Tasman Organised Crime Unit. This Court has already made restraining orders in relation to other property owned or controlled by persons charged in Nelson as a result of Operation Bear. This application is described as representing the Marlborough phase of the same operation.
[11] The evidence includes a number of sales of methamphetamine to an undercover police officer, culminating in the sale of an ounce of methamphetamine to the officer by Joel Kite. Joel Kite was arrested immediately after that sale and was found to be in possession of a further ounce of methamphetamine. There were numerous discussions between the officer and both Joel Kite and Tony Kite about the supply of methamphetamine, which included admissions by both the respondents about the scale of their methamphetamine operation, as well a number of offers and agreements to supply methamphetamine to the officer.
[5] As a result of the investigation, the respondents were charged with supplying and offering to supply methamphetamine, possession of methamphetamine for supply, conspiracy to supply methamphetamine, participating in an organised criminal group and failing to carry out obligations in relation to a computer search.
[6] Justice McQueen was satisfied the respondents had effective control of the property, therefore it could be treated as though they had an interest in it. Her Honour was also satisfied that there were reasonable grounds to believe that the property is tainted property. She considered that the respondents derived their interest in the property from unexplained sources and more likely than not derived it from unlawful activity such as dealing in methamphetamine.
[7] Her Honour was further satisfied that there were reasonable grounds to believe that the respondents had unlawfully benefited from significant criminal activity. The respondents were connected to the Killer Beez gang as investigated in Operation Bear, they had numerous discussions with undercover Police officer about the supply of
3 At [10]–[11].
methamphetamine, which included admissions by both about the scale of their methamphetamine operation. There were several offers and agreements to supply methamphetamine made to the officer and they had sums of cash in their possession when they were arrested.
[8] The Commissioner filed his on-notice application at the same time as the without notice application, in respect of the three vehicles listed above, as well as the following two sums of cash:
(a)$2,508.70 cash and all related interest seized from Joel Lawrence Kite on 1 December 2023 and currently held in a Police Trust account with Westpac Bank; and
(b)$6,505 cash and all related interest seized from Tony James Kite on 1 December 2023 and currently held in a Police Trust account with Westpac Bank.
[9] Since the without notice restraining order was granted, the Commissioner has located and seized the Black V-Rod. The Teal Blue V-Rod had not been located. The Hilux has been located, but the Commissioner no longer seeks any orders relating to it as enquiries have revealed the third interested party’s acquisition of the Hilux appears to have been legitimate.
[10] The other development is that the first and second respondents have pleaded guilty, and been sentenced, in respect of a representative charge of supplying methamphetamine between 28 July 2023 and 1 December 2023; participation in an organised criminal group between those same dates; and failing to carry out obligations in relation to a computer search on 1 December 2023.
[11] As the Commissioner points out, the respondents’ guilty pleas mean that the significant criminal activity earlier alleged has now been conclusively established; that is, the respondents have been directly involved in the sale and supply of methamphetamine in Marlborough.
[12] The Commissioner’s amended application for an on notice restraining order (and other orders) has followed in April 2025. It now relates to the Black V-Rod, the Teal V-Rod, and the two sums of cash referred to above.
[13] The Commissioner also seeks the following additional orders in relation to the Black V-Rod and Teal V-Rod motorcycles:
(a)the respondents have effective control over the Black V-Rod and Teal V-Rod, under s 17A of the Act; and
(b)the Official Assignee (OA) is to sell the Black V-Rod and Teal V-Rod in order to preserve its value.
[14] As the Teal V-Rod has not yet been located, the Commissioner also seeks an order that would permit members of the New Zealand Police to enter onto property to take the Teal V-Rod into custody on behalf of the OA.
Discussion
Effective control
[15] Having considered the evidence set out in the affidavit of Mr Scoble filed in support of the without notice and original on-notice applications, I am satisfied on the balance of probabilities, that the respondents have effective control of the motorcycles, despite the vehicles being registered in the names of the interested parties.4 The situation remains as McQueen J put it in her decision on the without notice application:5
… the respondents have effective control of the Property despite not having the vehicles registered in their names. It appears that changing the ownership of those vehicles was an attempt to disguise the true and effective control of the Property as held by Joel Kite and Tony Kite.6 The evidence shows continued use of the Property and the likely connections with the registered owners, revealing the practical reality of the respondents’ capacity to treat the Property as their own.
4 Pursuant to s 17A of the Act.
5 Commissioner of Police v Kite above n 2, at [40].
6 Commissioner of Police v Read [2015] NZHC 2055 at [60].
[16] In relation to the cash, effective control is established when $12,508.70 cash was found in Joel Kite’s possession upon arrest—$10,000 of which had been paid to him by undercover officers immediately before his arrest to purchase an ounce of methamphetamine. That money is not included in the application for restraint because Police retrieved it. The balance of the cash ($2,508.70) was seized by Police. In respect of the cash found in Tony Kite’s possession upon arrest, the evidence is that the $6,505 cash was found along with 26 plastic ziplock bags containing 15.66 grams of methamphetamine packaged into deal-size quantities.
Restraining order
[17] I am satisfied there are reasonable grounds to believe the property sought for restraint is tainted property.7 As the respondents have now pleaded guilty to methamphetamine dealing, I am easily satisfied there are reasonable grounds to believe that the respondents have derived their interest in the property from significant criminal activity, namely dealing in methamphetamine.
[18] In addition, I am satisfied there are reasonable grounds to believe the respondents have unlawfully benefitted from significant activity,8 given their guilty pleas to the charges, against the background of discussions with undercover Police officers about the supply of methamphetamine which included admissions by both respondents about the scale of their methamphetamine dealing operation, offers and agreements to supply methamphetamine to the officers, and on arrest, their possession of sums of cash.
Ancillary orders
Entry onto property
[19] The location of the Teal V-Rod is presently unknown. As the affidavit of Mr Scoble sets out, it may well be held by Mr Rhind, but extensive attempts to contact him have been unsuccessful.
7 Pursuant to s 24 of the Act and the definition of “tainted property” in s 5 of the Act.
8 Pursuant to s 25 of the Act. And the definitions of “significant criminal activity” and “unlawfully benefitted from significant criminal activity” in ss 6 and 7 of the Act.
[20] As above, the Commissioner seeks an ancillary order pursuant to s 34(1) of the Act which would permit members of the New Zealand Police to enter onto property to take the Teal V-Rod into custody on behalf of the OA provided there are reasonable grounds to believe that a restrained vehicle is on the property. The Commissioner says such reasonable grounds will likely arise if the vehicle is visible on the property.
[21] A further order may be made to give a limited search and seize power to uplift a vehicle in possession of a third party and deliver it to the OA.9
[22] In the circumstances where the Commissioner considers the Teal V-Rod may well be in Mr Rhind’s possession, as it has been transferred into his name, I am satisfied it is appropriate to grant the further order permitting entry onto property in order to give effect to the restraining order.
Sale orders
[23] The Commissioner seeks an order pursuant to s 35(e)(v) of the Act permitting the OA to sell the two motorcycles to avoid the incurring of unnecessary costs of preservation.
[24] As noted on behalf of the Commissioner, the sale order is pre-emptive in relation to the Teal V-Rod, when it has not yet been located. The Commissioner seeks the order now to avoid the OA incurring unnecessary costs in relation to preservation and storage in the event the Teal V-Rod is seized, and to prevent the unnecessary costs and duplication that would be involved if the Commissioner had to file a fresh application for a sale order.
[25] Section 33(1)(a) of the Act provides that further orders may be sought by the applicant for a restraining order. The Court may make any such order if it considers it appropriate.10 The Court must be satisfied that such an order should be made. Section 35(e)(v) includes an order directing the OA to sell restrained property in order to preserve its value.
9 Commissioner of Police v Standem [2022] NZHC 76.
10 Section 34.
[26] I am satisfied that the order sought should be granted. As the Commissioner points out, neither of the motorcycles has any rarity or special characteristics. There is nothing to suggest either motorcycle is held as an investment or is otherwise of any special or sentimental value to the respondents. A sale order will preserve the value of the motorcycles.
[27] The first respondent, and first to third interested parties, have taken no steps in relation to the application. The second respondent has indicated he does not oppose a pre-emptive order being made respect of the Teal V-Rod. There appears to be nothing to prevent a sale order being made pre-emptively when a sale order may be made in relation to restrained property and I have found that a restraint order is appropriate.
Result
[28]I make the following orders:
(a)The property specified at paragraph [29]:
(i)Is not to be disposed of, or dealt with, other than as is provided for in the restraining order; and
(ii)Is to be in the Official Assignee’s custody and control.
(b)The property specified at [29](a) and (b) is in the effective control of Joel Kite and/or Tony Kite.
(c)The Official Assignee is to sell the property described at [29](a) and (b) in order to preserve the value of that property.
(d)Members of the New Zealand Police are permitted to enter onto property to enable them to take custody and control of the property identified at (b) on behalf of the Official Assignee if there are reasonable grounds to believe that the property is located on that property.
[29]The property referred to in paragraph [28] is:
(a)A Black 2013 Harley Davidson VRSCF V-Rod Night Special motorcycle registration A9WFJ (VIN 1HD1HHH13DC810217; engine number HHHD810217) and all associated keys and immobilisation devices, registered to Keenen Awarangi Te Hore at 22 Rata Place, Blenheim (Black V-Rod). Although a market valuation has not been obtained, internet marketplace listings for comparable vehicles indicate that it has an estimated value of $30,000.
(b)A Teal 2013 Harley Davidson V-Rod motorcycle registration C6EKG (VIN 1HD1HPH10DC800996; engine number HPHD800996) and all associated keys and immobilisation devices, registered to Matiu William Rhind at 1/1 Hutcheson Street, Blenheim (Teal Blue V- Rod). Although a market valuation has not been obtained, internet marketplace listings for comparable vehicles indicate that it has an estimated value of $35,000.
(c)$2,508.70 cash and all related interest seized from Joel Lawrence Kite on 1 December 2023 and currently held in a Police Trust account with Westpac Bank.
(d)$6,505.00 cash and all related interest seized from Tony James Kite on 1 December 2023 and currently held in a Police Trust account with Westpac Bank.
Grau J
Solicitors:
O’Donoghue Webber, Nelson for Applicant
cc: E J Riddell, Nelson for First Respondent
R A Harrison, Blenheim for Second Respondent
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