Commissioner of Police v Tiavare

[2024] NZHC 974

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-529

[2024] NZHC 974

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

RIMAMOUTU PAURA TIAVARE

Respondent

Hearing:

19 April 2024

Appearances:

S M Earl for applicant

No appearance for respondent

Judgment:

29 April 2024

JUDGMENT OF JOHNSTONE J

(application for type 1 assets forfeiture order)

This judgment was delivered by me on 29 April 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: MC, Auckland

COMMISSIONER OF POLICE v TIAVARE [2024] NZHC 974 [29 April 2024]

[1]    On 7 November 2018, a Police constable stopped Rimamoutu Tiavare and found him to be carrying around $64,700 in cash (2018 Cash). The cash was seized, but the bulk of it (after deducting outstanding fines and child support payments) was returned to Mr Tiavare within a month.

[2]    At the time, the police were unaware that, on 6 November 2018, Mr Tiavare had withdrawn $6,400 in cash from an ATM in Ōwairaka, Auckland, using counterfeit bank cards that had been cloned with the details of legitimate cards, captured using a card skimming device unlawfully inserted into an ATM in Grey Lynn. This, and other similar offending, only came to light during a joint Customs and Police investigation, which resulted in Mr Tiavare being charged with, and pleading guilty to, various fraud and money laundering  offences  committed  in  the  period  6 November  2018  to  29 June 2020. While Mr Tiavare was on bail, and in the period 5 December 2021 to 17 June 2022, he imported a further six card skimming devices, two of which were intercepted by Customs.

[3]    On 24 May 2022, Customs and Police officers executing a search warrant at Mr Tiavare’s home in Goodwood Heights, Auckland, found and seized $54,460 cash (2022 Cash).

[4]    By application dated 8 March 2024, the Commissioner of Police seeks a type 1 assets forfeiture order in respect of the 2022 Cash under s 50 of the Criminal Proceeds (Recovery) Act 2009. The Commissioner alleges that it is tainted property.

[5]    The application was served on Mr Tiavare on 28 March 2024. No appearance was made by or for him at the hearing of the Commissioner’s application in the Criminal Proceeds list on 19 April 2024. The Commissioner seeks judgment.

Type 1 assets forfeiture orders

[6]    Under s 50(1) of the Act, I must make a type 1 assets forfeiture order in respect of the 2022 Cash if satisfied on the balance of probabilities that it is tainted property. Relevantly, “tainted property” means any property that has, wholly or in part, been acquired as a result of significant criminal activity, or derived or indirectly derived from significant criminal activity.1

[7]However, under s 50(4):

Despite subsection (1), the Court may not make a type 1 assets forfeiture order in relation to property that no person has claimed an interest in, unless the Court is satisfied, on the balance of probabilities, of the following additional 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 1 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.

[8]    In this case, the 2022 Cash has not previously been the subject of a restraining order. It has simply been held as a consequence of its seizure in the course of the search of Mr Tiavare’s home on 24 May 2022. I therefore need to determine whether:

(a)the 2022 Cash is property in which “no person has claimed an interest”, in terms of s 50(4); and

(b)if not, whether it is tainted property.

[9]    If the 2022 Cash is property in which no person has claimed an interest, I will then consider the Commissioner’s alternate application, for a restraining order.

1      Criminal Proceeds (Recovery) Act, s 5(1).

Is the 2022 Cash property in which “no person has claimed an interest”?

Meaning of “no person has claimed an interest”

[10]   The meaning of the phrase “property that no person has claimed an interest in”, as it appears in s 50(4), was considered in this Court in Commissioner of Police v Afakasi.2

[11]   There, the Commissioner had applied for the forfeiture of: a substantial sum of cash seized from a respondent who had been arrested at a restaurant; lesser sums of cash seized from residential properties associated with the respondent; and two vehicles. This property had been restrained under the Act, but not for more than a year. The Commissioner submitted that s 50(4) is directed at unclaimed property, in the sense of property without an identifiable owner, such as where property is seized in circumstances where, although it is plainly tainted property, its ownership cannot be attributed to any particular individual. And that the Court should accordingly adopt an interpretation of the above phrase that looks to whether an owner can be identified.

[12]   Justice Brewer accepted that s 50(4) is designed to give potential claimants an opportunity to express an interest in property before it is made the subject of an asset forfeiture order. But the Judge found that this “does not mean or imply that the section is invoked only where there is no identifiable owner of the property”.3 In the circumstances of that case, where the respondent had denied ownership of the property, the Judge found that s 50(4) prohibited its forfeiture until a year of restraint had lapsed.4

[13]   I respectfully take the same approach. In accordance with its purpose of ensuring that property is not forfeited before its owner has an opportunity to object,  s 50(4) requires that property must either:

(a)have been restrained for a year and made the subject of all reasonable efforts to contact its interested owners; or

2      Commissioner of Police v Afakasi [2013] NZHC 3054.

3 At [12].

4 At [17].

(b)have been “claimed”.

[14]   And in accordance with its text and that purpose,5 in order for the property to have been “claimed”, something more than it having an identifiable owner is required. If Parliament did not intend to require some kind of “claim” to have been made, different language, addressing the question of whether there is an identifiable owner, would likely have been used.

[15]   But that said, 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.

[16]   I note that the identifiable individual described in [15] will likely have been served, or the subject of substituted service, as a named respondent before any forfeiture application is granted. And that s 62 of the Act permits persons other than respondents, who claim interests in property that have been made the subject of civil forfeiture, to apply for relief within six months of the order being made. A generous interpretation of what amounts to claiming property is consistent with ensuring an opportunity to object to forfeiture. An unduly narrow interpretation would risk giving rise only to pointless delay.

[17]   I further note that it seems there was no evidence of an apparently genuine assertion of ownership of the property at issue in Afakasi.6 The motor vehicles are likely to have been registered. But the larger focus of that decision appears to have been whether the respondent had claimed ownership of the substantial quantity of cash found in his person. Whether the registration of a vehicle amounts in the

5      Legislation Act 2019, s 10(1).

6      Above, n 2.

circumstances of any particular case to evidence of an apparently genuine assertion of ownership is an issue that may be left for consideration when it arises.

Application in this case

[18]   It appears that Mr Tiavare was arrested and charged, in relation to the first five card skimming device importations, on the day the 2022 Cash was found. But it is not clear on the evidence whether he was then invited to comment on the cash.

[19]   On 6 June 2023, Detective Benjamin Opie of the Police Northern Asset Recovery Unit, spoke with Mr Tiavare at Auckland Prison. Detective Opie asked  Mr Tiavare for his position regarding the 2022 Cash.

[20]   Mr Tiavare sought to explain that he had derived the cash from a number of sources. He spoke first about the sale of a car which he had registered in the name of his sister-in-law, for $17,500, but was unable to provide extensive detail. He spoke next about having accumulated around $8,000 in personal savings, including by working as a landscaper for an individual named “Sio”. However, he then ceased explaining, and told Detective Opie that having been in custody for over a year he did not want to claim back any of the 2022 Cash. He said that he felt it would be a burden to his sister-in-law and to Sio if they had to be spoken to. He said he wanted to move on, not talk about the money anymore.

[21]   In these circumstances, I am satisfied that Mr Tiavare claimed the 2022 Cash, in the above sense of appearing genuinely to assert a current ownership interest in it. That he did so  is  apparent  from  his  efforts  to  explain  where  he  got  it  from.  Mr Tiavare’s decision not to seek return of the cash does not undermine his assertion of ownership.

[22]   Accordingly, the 2022 Cash is not property in which no person has claimed an interest.

Is the 2022 Cash tainted property?

[23]I find that the 2022 Cash is tainted property, because:

(a)On 7 November 2018, Mr Tiavare was in possession of a considerable sum of cash the day after he had unlawfully withdrawn $6,400 from an ATM with bank cards counterfeited after the deployment of a card skimming device. That cash was given back to him within the month.

(b)Mr Tiavare successfully imported four further card skimming devices in the period 5 December 2021 to 17 June 2022.

(c)Mr Tiavare’s explanation for having $54,460 in cash at his home on 24 May 2022 was bereft of persuasive detail.

(d)Detective Opie’s financial analysis of Mr Tiavare’s affairs disclosed that Mr Tiavare declared only $69,576.01 after-tax income in the 2018-2023 tax years, and that he withdrew from his bank accounts only

$900 and $5,880 in cash in the calendar years immediately prior to     7 November 2018 and 24 May 2022 respectively.

(e)There is accordingly no reasonable explanation for the 2022 Cash, other than that Mr Tiavare acquired, or derived, it from significant criminal activity.

Result

[24]   The Commissioner’s application dated 8 March 2024 is granted. I make a type 1 assets forfeiture order in respect of the cash described at paragraph 1(a) of the application, together with any interest that has accrued in respect of that cash since its seizure on 24 May 2022. That combined property now vests in the Crown absolutely and is in the custody and control of the Official Assignee.

Johnstone J