Commissioner of Police v Nankivell (Ngawhau)
[2025] NZHC 492
•13 March 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-10
[2025] NZHC 492
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
STEVEN JAMES NANKIVELL (NGAWHAU)
First Respondent
MARCO LUCA GRILLI
Second Respondent
Hearing: 5 March 2025 Appearances:
L Lai for Applicant
First Respondent in person via VMR
Judgment:
13 March 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 13/03/2025 at 11.30 am Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Hamilton Legal Ltd, Hamilton
Copy to
First Respondent
COMMISSIONER OF POLICE v NANKIVELL (NGAWHAU) [2025] NZHC 492 [13 March 2025]
[1] The Commissioner of Police applies for a type 1 assets forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (Act) in respect of the following:
(a)$13,680 cash located and seized by police on 5 October 2020 at 65 Karioi Road, Raglan, and any interest accrued.
(Raglan Cash)
(b)$163,155 cash seized from the respondent on 2 October 2020;
(c)$11,120 cash seized from 107 Paraonui Road, Tokoroa on 8 October 2020;
(d)$2,000 cash seized from 14 Rama Road, Auckland on 12 October 2020; and
(e)$10,000 held in the trust account of 36 Degrees Brokers Ltd (account number 12-3610-008433-02), deposited on 1 October 2020.
(together the Cash)
[2] The order is sought on the basis that the Cash and the Raglan Cash are tainted property being wholly or in part acquired as a result of significant criminal activity, namely possession of methamphetamine for supply.
Background
[3] In September and October 2020, the New Zealand Police commenced an investigation, codenamed Operation Picton, into the activities of the first respondent, Steven James Nankivell, also known as Steven James Ngawhau. I will refer to the first respondent as Mr Ngawhau as that is his preferred surname.
[4] The investigation revealed that Mr Ngawhau had been transient since his release on parole in June 2018, and that the addresses he resided at included a
Karioi Road address, where police later located the Raglan Cash and equipment used for the manufacture of methamphetamine.
[5] The investigation also established that Mr Ngawhau provided $10,000 to an associate to purchase a boat. The $10,000 was placed into a trust account.
[6] On 2 October 2020, Mr Ngawhau and an associate were arrested by police. A search of Mr Ngawhau’s vehicle revealed a total of $163,155 cash alongside 14 grams of methamphetamine, 24.8 grams of cannabis, and a loaded pistol.
[7] On 5 October 2020, police executed a search warrant at the Karioi Road address, and located:
(a)a cannabis cultivation operation;
(b)equipment used for methamphetamine manufacturing;
(c)266 grams of a crystalline substance which indicated positive for methamphetamine; and
(d)the Raglan Cash.
[8] On 8 October 2020, police executed a search warrant at 107 Paraonui Road, Tokoroa, the address of Mr Ngawhau’s former partner. Police located $11,120 cash in the laundry. Mr Ngawhau’s former partner advised police that the cash had been dropped off by Mr Ngawhau.
[9] On 12 October 2020, police executed a search warrant at 14 Rama Road, Point Chevalier, Auckland, and located a sum of $2,000 cash. The occupant of the address advised police the cash was given to her by Mr Ngawhau before his arrest.
[10] On 18 June 2021, Mr Ngawhau was sentenced to 22 months’ imprisonment, cumulative to a sentence of nine years and eight months’ imprisonment, following guilty pleas to two charges of money laundering; possession of cannabis; possession of methamphetamine; possession of a pistol; breach of a release condition; possession
of ammunition; and common assault. Under s 47 of the Evidence Act 2006, Mr Ngawhau’s convictions are conclusive proof he committed the offending.
[11] On 24 March 2022, police obtained a statement from the second respondent, Marco Luca Grilli, the occupant of the Karioi Road address. He denied knowledge of the Raglan Cash.
[12] On 25 March 2022, Mr Ngawhau provided a statement to police. He accepted the Cash was the proceeds of his money laundering offending. He denied knowledge of the Raglan Cash.
[13] On 16 January 2024 the Commissioner made an application for a type 1 assets forfeiture order in respect of the Cash (First Application).
[14] On 6 March 2024, a restraining order was made over the Raglan Cash. As unclaimed cash it must be restrained for 12 months before it can be forfeited.1
[15] On 5 February 2025, the First Application was adjourned for the Commissioner to file an application for a type 1 assets forfeiture order over the Raglan Cash, so that the First Application (relating to the Cash) could be determined at the same time as the forfeiture application for the Raglan Cash.
[16] On 28 February 2025, the Commissioner filed an application for a type 1 assets forfeiture order over the Raglan Cash (Second Application).
[17] Mr Ngawhau accepts that the Cash is the proceeds of crime and does not seek its return. He denies any knowledge of, or interest in, the Raglan Cash. He does not oppose the applications for forfeiture.
[18] Mr Grilli does not claim any interest in the Cash or the Raglan Cash and does not wish to take any part in the proceeding. Mr Grilli does not oppose the applications for forfeiture.
1 Criminal Proceeds (Recovery) Act 2009, s 50(4)(b).
[19] There is an issue concerning the lawfulness of the police’s retention of the Cash and the Raglan Cash after Mr Ngawhau was sentenced in June 2021, bringing his criminal proceedings to an end. The Commissioner did not apply for a restraining order in respect of the Raglan Cash until January 2024, some two and a half years after Mr Ngawhau was sentenced. The Commissioner did not apply for forfeiture orders in respect of the Cash until January 2025.
[20] Section 151 of the Search and Surveillance Act 2012 relates to custody of things seized or produced and provides:
(1)A seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be held in the custody of the person who exercised the search power or that person’s employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance with section 90(2) (except while it is being used in evidence or is in the custody of any court) until the first of the following occurs:
(a)a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced:
(b)the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise):
(c)the thing is released under section 158 or 159:
(d)if proceedings for an offence have not been commenced before the date that is 6 months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a court under section 153:
(e)in any case where proceedings are brought,—
(i)the withdrawal or dismissal of the proceedings; or
(ii)subject to sections 156 and 159, the completion of the proceedings:
(f)the seized or produced thing is disposed of under section 160.
(2)Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—
(a)in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or
(b)in the case of any other event, in the manner required by this Act.
(3)However, if the thing is seized or produced in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection
(1) has occurred in relation to each and every alleged offence.
(4)This section is subject to sections 153 and 163.
[21] Once Mr Ngawhau was sentenced, police no longer had lawful custody of the Cash or Raglan Cash pursuant to s 151 of the Search and Surveillance Act. This issue was recently discussed in Commissioner of Police v Linton.2
[22] In Linton, police unlawfully retained property for a period following the end of the criminal proceedings, but before the application for a restraining order was made. In that case, the Court came to the view that it was in the public interest to make a restraining order even though police had retained the property unlawfully.
[23] The same situation seems to have arisen here, although the present case is distinguishable. First, this case concerns applications for forfeiture orders while Linton involved an application for a restraining order. Secondly, in this case no party is now seeking the return of the money. There is therefore no basis for an argument that the Cash or the Raglan Cash should have been returned to either the first or second respondent.
[24] In Slessor v Commissioner of Police the Court of Appeal considered a forfeiture order in circumstances where property had been unlawfully retained and said: 3
[51] What is not open to doubt is that the High Court was correct to order forfeiture of the cash, even if s 47 is potentially amenable to the illegality principle. We say this because forfeiture was not contrary to the public interest. Indeed, to apply the illegality principle in this case would be contrary to the public interest, as a (wholly) disproportionate response to police illegality in retaining the cash. We make three points.
[52] First, the case involves no bad faith on the part of police, and Mr Batts does not argue otherwise. The point is underscored by an important fact: Ms
2 Commissioner of Police v Linton [2024] NZHC 2591.
3 Slessor v Commissioner of Police [2023] NZCA 612
Slessor did not seek return of the cash until police raised that possibility in October 2020, 13 years after its seizure.
[53] Second, the cash was unquestionably derived from or in connection with drug dealing. Mr Burns was cross-examined before us. It is sufficient to record our conclusion: Mr Burns' testimony was not credible, fresh, or cogent. It follows Ms Slessor has no moral claim to the cash, which we consider is the real explanation for her lack of activity in seeking its return.
[54] Third, declining forfeiture would be quite disproportionate to the impropriety — the approach in Patel (and under s 30 of the Evidence Act). The police impropriety was modest, and as we have observed, absent bad faith. In short, the police did little more than fail to return the proceeds of serious criminal offending to someone who had not hitherto asked for them.
[55] Another feature supports our analysis: the Commissioner's claim to forfeiture of the cash is not reliant on the impropriety. Materially, under the Act, the cash could be forfeited irrespective of whether it had been retained by police. It follows there is no material linkage between the impropriety and forfeiture. Indeed, on this analysis, the illegality principle is not engaged.
[25] I refer to the potential unlawful retention in case it is raised in the future as the basis of a claim that the Cash and the Raglan Cash should not be forfeited. I am satisfied that the Cash and the Raglan Cash are tainted and are the proceeds of crime. No person now seeks its return. The Cash and the Raglan Cash are liable to forfeiture under s 50(1) of the Act, notwithstanding the potential unlawful retention by police.
Result
[26] The Commissioner’s applications dated 16 January 2024 and 28 February 2025 are granted.
[27]I make the following orders:
(a)the following property vests in the Crown absolutely and is to be in the Official Assignee’s custody and control:
(i)$13,680 cash located and seized by Police on 5 October 2020 at 65 Karioi Road, Raglan, and any interest accrued;
(ii)$163,155 cash seized from the respondent on 2 October 2020, and any interest accrued;
(iii)$11,120 cash seized from 107 Paraonui Road, Tokoroa on 8 October 2020, and any interest accrued;
(iv)$2,000 cash seized from 14 Rama Road, Auckland on 12 October 2020; and any interest accrued;
(v)$10,000 held in the trust account of 36 Degrees Brokers Limited (account number 12-3610-008433-02), deposited on 1 October 2020 and any interest accrued.
Wilkinson-Smith J
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