Commissioner of Police v Paruru
[2025] NZHC 503
•14 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000122
[2025] NZHC 503
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
PENEKE PARURU
First Respondent
METUAKORE VISHNU MAARA PARURU
Second Respondent
Hearing: 28 February 2025 Appearances:
E Rangamuwa for Applicant
Judgment:
14 March 2025
JUDGMENT OF WILKINSON-SMITH J
[Application for civil forfeiture and restraining orders]
This judgment was delivered by me on 14/03/2025 at 11.30 am Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland
COMMISSIONER OF POLICE v PARURU & ANOR [2025] NZHC 503 [14 March 2025]
Introduction
[1] The Commissioner of Police (Commissioner) applies for a type 1 assets forfeiture order, under s 50 of the Criminal Proceeds (Recovery) Act 2009 (Act), over a sum of $77,345 cash (Cash) located at the home address of the first respondent Peneke Paruru (Mr Paruru) and the second respondent, his brother, Metuakore Paruru (Mr M Paruru). The Commissioner makes several alternative applications if an order under s 50 is not made.
[2] Both respondents have signed notebook statements relinquishing any claim to the Cash.
Background
[3] The application arises out of the execution of a police search warrant at a home address shared by Mr Paruru, Mr M Paruru and their mother.
[4] The search warrant was executed on 18 October 2022. During the search, police searched two adjacent bedrooms, each of which contained deadbolt locked wardrobes.
[5] Inside Mr M Paruru’s bedroom, police located $2,840 cash inside a shoe. A further $460 cash was located inside a black Adidas bag. A sum of $74,045 cash was secured in bundles inside a shoe box in the locked wardrobe. A new cash counting machine was located in a box under the bed in Mr M Paruru’s room.
[6] Inside Mr Paruru’s bedroom police discovered a JanSport bag with a padlock attached. Inside was a shoebox containing over 200g of cannabis in ziplock bags. Also located was a red 2B5 notebook appearing to be a tick list.
[7]The Cash (totalling $77,345) and cannabis were seized.
[8] Mr M Paruru was arrested for possession of cannabis for supply and interviewed by police. He told police that both the stashes of $460 cash and $2,840
cash were his earnings from window washing over the previous “few days”. The sum of $74,045 cash was attributed to savings from the past “three to four years” of window washing. He denied any knowledge of the cannabis in his brother’s room.
[9] Both Mr Paruru and Mr M Paruru were eventually charged with possession of cannabis for supply. Mr M Paruru’s charge was later withdrawn. Mr Paruru pleaded guilty and was convicted of one charge of possession of cannabis for supply. He was sentenced on 26 March 2024 to two months’ community detention.
[10] Despite Mr Paruru’s guilty plea, the Commissioner considers it more likely that both the Cash and cannabis belonged to Mr M Paruru, or that the cannabis operation was at least a joint venture between the two brothers.
[11] Notably, the Cash was located in Mr M Paruru’s room (and he initially claimed ownership of it), alongside a cash counting machine and tick list. Further, Mr M Paruru was identified through text messages as being apparently involved in cannabis supply.
[12] The Commissioner’s position is that given this, and given that Mr M Paruru’s declared income in the 2022 tax year amounted to only $39,200, the Cash can only have been derived from his selling of cannabis and is accordingly tainted.
Relevant legislative provisions and analysis
[13] Under s 50(1) of the Act, a type 1 assets forfeiture order in respect of the Cash must be made if the Court is satisfied on the balance of probabilities that it is tainted property.
[14] “Tainted property” is defined in the Act as any property that has, wholly or in part, been acquired as a result of, or has been derived or indirectly derived from significant criminal activity.1
1 Criminal Proceeds (Recovery) Act, s 5(1).
Is the cash unclaimed?
[15] There is an issue as to whether the Cash is “unclaimed” for the purpose of the Act. Mr M Paruru initially claimed it as the proceeds of his window cleaning business but later changed that stance and advised that he makes “no claim” to it.
[16] Section 50(4) of the Act provides that a type 1 assets forfeiture order may not be made over property that “no person has claimed an interest in”, unless the Court is satisfied of the following matters:
(a)that a restraining order was earlier made in relation to the same property; and
(b)that the restraining order has been in place for a period of at least one year; and
(c)that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.
[17] The Commissioner submits that the Court is not excluded from making a type 1 assets forfeiture order by s 50(4). Section 50(4) does not apply because Mr M Paruru initially claimed the Cash and gave explanations as to the source of it.
[18] This issue was discussed recently in Commissioner of Police v Tiavare where Johnstone J held:2
I do not consider that s 50(4) requires the “claim” to be made in the context of the application for forfeiture, whether by way of some acknowledgement of ownership made in response to service, let alone formal opposition. Instead, I consider property will have been claimed, so that s 50(4) does not apply, where there is evidence that an identifiable individual has appeared genuinely to assert a current ownership interest in the property. This interpretation is consistent with the language of s 50(4) and its purpose as captured at [13] and [14] above.
2 Commissioner of Police v Tiavare [2024] NZHC 974 at [15].
[19] In that case the Court was satisfied that Mr Tiavare claimed the cash, in the sense of appearing genuinely to assert current ownership of it, through his efforts to explain where he got it from. The decision not to claim for the return of the cash did not undermine his assertion of ownership.
[20] The purpose of s 50(4) is clear: it is to ensure that property is not forfeited without its rightful owner having an opportunity to claim it. In this case the Cash was in Mr M Paruru’s bedroom and Mr M Paruru explained it as income from a window washing business. I find that the Cash is not captured by s 50(4), as Mr M Paruru did claim an interest in it. The Cash was found in his possession, and he provided an explanation as to its provenance. He no longer claims it and does not oppose forfeiture however, because of his original claim, the Cash is not property in which no person has claimed an interest.
Was the Cash unlawfully retained by police?
[21] There is an additional issue which has recently arisen in several cases regarding the unlawful retention of likely criminal proceeds. The related criminal proceedings in this matter ended in March 2024 when Mr Paruru was sentenced. The Commissioner did not make any application for restraint or forfeiture of the Cash until January 2025.
[22]Section 151 of the Search and Surveillance Act 2012 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.
[23] Once the related criminal proceedings against Mr Paruru and Mr M Paruru were at an end, police no longer had lawful custody of the Cash pursuant to s 151 of the Search and Surveillance Act. A similar issue was recently discussed in Commissioner of Police v Linton.3
[24] 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 it unlawfully.
[25] A similar situation seems to have arisen here, although it is distinguishable in two ways. First, this case concerns an application for a forfeiture order, while Linton dealt with an application for a restraining order. Secondly, no party is seeking the
3 Commissioner of Police v Linton [2024] NZHC 2591.
return of the Cash. There is therefore no basis for an argument in this case that the Cash should have been returned to either the first or second respondent.
[26] In Slessor v Commissioner of Police, the Court of Appeal considered that a forfeiture order was appropriate in circumstances where property had been unlawfully retained and said:4
[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 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.
[27] This demonstrates that an illegality in the police’s retention of the Cash does not preclude the Court from making a civil forfeiture order. Rather, the Court needs
4 Slessor v Commissioner of Police [2023] NZCA 612.
to undertake an exercise weighing the level of illegality against the public interest in the civil forfeiture order being made.
[28] I raise the potential unlawful retention in case an issue is raised in the future as the basis of a claim that the Cash should not be forfeited. I am satisfied, however, that the Cash is tainted and is the proceeds of crime. Making a type 1 assets forfeiture order is therefore in the public interest. The potential unlawful retention by police does not alter the fact that the Cash is liable to forfeiture.
Result
[29]The Commissioner’s application is granted.
[30] I make a civil forfeiture under s 50 of the Act in respect of the Cash, together with any interest that has accrued in respect of that Cash since its seizure on 18 October 20220.
[31]Specifically, the Cash is:
(a) A total of $77,345 cash, comprising: (i)
$460 cash located inside a black Adidas bag at 1/9 Orchard Street, Avondale, Auckland (1/9 Orchard Street) on 18 October 2022, plus any interest accrued;
(ii)
$2,840 cash located inside a Nike sneaker at 1/9 Orchard Street, on 18 October 2022, plus any interest accrued; and
(iii)
$74,045 cash located inside a shoebox at 1/9 Orchard Street, on 18 October 2022, plus any interest accrued.
[32] The combined property now vests in the Crown absolutely and is in the custody and control of the Official Assignee.
Wilkinson-Smith J
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