Commissioner of Police v Taiapa

[2013] NZHC 2555

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2012-416-0184

[2013] NZHC 2555

IN THE MATTER

of an application pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

ALLAN PAREHUIA TAIAPA

First Respondent

CHRISTOPHER JOHN COTTLE
Second Respondent

WILLIAM RODGER TAMATEA
Third Respondent

LANCE RICHARD TAURUA
Fourth Respondent

CYRUS TAIAPA
Fifth Respondent

Hearing:	1 October 2013
Counsel:	F E Cleary for Applicant Mr W R Tamatea in person
Judgment:	1 October 2013

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      This is an application by the Commissioner for asset forfeiture orders under the Criminal Proceeds (Recovery) Act 2009.

[2]      The property concerned is as follows:

THE COMMISSIONER OF POLICE v TAIAPA [2013] NZHC 2555 [1 October 2013]

(a)A 2009 Harley Davidson Road King motorcycle, registration 38ZYM registered to the second respondent.

(b)A  1999  Harley  Davidson  Dyna  motorcycle,  registration  61YUH registered to the first respondent.

(c)A  1982  Harley  Davidson  FXRS  motorcycle,  registration  66YDU registered to Waiku Joseph Akonga.

(d)A 2007 Harley Davidson soft-tail motorcycle, registration A3FHT registered to the third respondent.

(e)A 2000 Jaguar S-type saloon, registration EJN957 registered to the third respondent.

(f)A  1948  Ford  Hotrod,  registration  OUR48  registered  to  the  third respondent.

(g)A 2001 Harley Davidson soft-tail motorcycle, registration A9GFY registered to the fourth respondent.

(h)A 1995 Mitsubishi Pajero, registration BLN513 registered to the first respondent.

(i)A 1989 Nissan Civilian heavy van, registration CWC365 registered to Kelly Pouhe.

(j)A 2006 Toyota Hilux, registration DKR5 registered to Josephine Hine Haere Taiapa.

(k)A 1968 Bedford house bus, registration FJH565 registered to John and Brenda Fisher (aside from the interest of John Fisher valued at

$7,000).

(l)A 1996 Harley Davidson motorcycle, registration 62USM registered to the fifth respondent.

(m)$34,810 cash seized from the boot of the Jaguar vehicle, registration EJN957 at 35 Dorkan Crescent, Gisborne on 15 December 2011.

(n)$3,360   in   notes   seized   from   42   Huxley   Road,   Gisborne   on 15 December 2011.

(o)$310 cash located on the first respondent on 15 December 2011; and

(p)$291.30 cash seized from 2 Curie Place, Gisborne on 15 December 2011.

[3] The Commissioner has submitted that all the property is tainted because it, at least in part, has been derived from significant criminal activity. The significant criminal activity in question was the first respondent’s dealing in methamphetamine, for which he was convicted and sentenced to seven years and three months’ imprisonment in June 2012. Obviously that offending is an offence punishable by five years’ imprisonment or more.

[4] A restraining order over all the property listed was granted on 1 October 2012.

[5] There is no opposition to the orders being made from Mr A Taiapa, Mr Cottle, Mr Taurua and Mr C Taiapa.

[6] Mr Tamatea opposed the application orally on 21 August 2013. He was ordered to file a notice of opposition by 3 September 2013 and written submissions by 23 September 2013.  He did not do so.

[7] Mr Tamatea appeared today and apologised for his non-compliance with the previous Court orders. He wishes to maintain his opposition to forfeiture. Decently in  the  circumstances,  which  otherwise  would  have  admitted  of  default  orders,

Ms Cleary is prepared to put the assets to which Mr Tamatea lays claim to one side. They are the items listed (d), (e) and (f) above.

[8]   Strict timetable orders are now made in relation to opposition and hearing of the application in relation to those three items:

(a)Mr Tamatea is to take legal advice no later than 8 October 2013.

(b)He is to file his formal notice of opposition and his affidavit evidence in opposition not later than 29 October 2013 (serving copies on the Crown at the same time).

(c)The Registrar is then to set a hearing date for the opposed application.

Tainted property?

[9] The remainder of this judgment deals with the items listed above other than items (d), (e) and (f). I will refer to the remaining items as the  “unopposed property”.

[10]   I must be satisfied on the balance of probabilities that the unopposed property is “tainted property”, as defined in s 2 of the Criminal Proceeds (Recovery) Act 2009. In short it must be property acquired wholly or in party as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.

[11] The dealing by the first respondent in methamphetamine  constitutes “significant criminal activity” for the purposes of the Act.

[12] On the evidence filed it appears that all the unopposed property has been derived from Mr A Taiapa’s methamphetamine dealing. He had minimal legitimate income but acquired vehicles worth over $130,000 over six years. Various witnesses describe a person matching him as the purchaser of the vehicles. Some of the vehicles were found with methamphetamine and cash in them.

[13]     I  am  satisfied  that  the  unopposed  property  is  “tainted  property”  for  the purposes of the Act.

[14] I make the forfeiture orders sought by the Crown accordingly in relation to items listed at [2] above, other than items (d), (e) and (f).

Stephen Kós J

Solicitors:

Crown Solicitor, Napier for Applicant

Rishworth, Wall & Mathieson, Gisborne for First Respondent