Commissioner of Police v Vaka

[2024] NZHC 2407

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-024

[2024] NZHC 2407

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an on-notice application for effective control and restraining orders pursuant to ss 17A, 21, 24 and 25

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

NUI MATAEVALU VAKA

Respondent

SAILOSI FIFITA SITALEKI

Interested Party

Hearing:	26 August 2024
Counsel:	J M Webber for Applicant
Judgment:	27 August 2024

JUDGMENT OF GRAU J

[Application for an on-notice restraining order]

[1]    On 12 June 2024, Churchman J granted the Commissioner of Police’s (the Commissioner’s) application for a without notice restraining order pursuant to ss 24 and 25 of the Criminal Proceeds (Recovery) Act 2007 (the Act) relating to a 2007 Harley Davidson V-ROD VRS CAW motorcycle with the registration C1HZQ (1HD1HFZ147K808053; engine number HFZ808053), and associated keys and immobilisation devices, registered to Sailosi Fifita Sitaleki of 2/17 Silver Creek Road, Weymouth, Auckland (the Harley Davidson motorcycle).1 The application also

1      Commissioner of Police v Vaka [2024] NZHC 1529.

COMMISSIONER OF POLICE v VAKA [2024] NZHC 2407 [27 August 2024]

included an application for an effective control order pursuant to s 17A of the Act since the Harley Davidson motorcycle was registered to a person other than the respondent. Accordingly, the registered owner, Mr Sitaleki is an interested party.

[2]    At the time the without notice order was sought to be effected, both the Harley Davidson motorcycle and the nominal owner were unable to be found. That remains the case.

[3]    On 5 June 2024, Police filed an on-notice application to restrain the Harley Davidson motorcycle on the basis that:

(a)the Court will be satisfied the respondent, Mr Vaka, has effective control over the motorcycle and associated property;

(b)the property is tainted property; and

(c)Mr Vaka has unlawfully benefitted from significant criminal activity.

[4]    This matter was called in the Criminal Proceeds List yesterday. There was no appearance by Mr Vaka, who has been served. Mr Vaka is currently serving a sentence of imprisonment for methamphetamine-related offending. He has taken no part in proceedings, nor has the interested party, the registered owner.

[5]    On the basis of the affidavit of Detective Collins, and on the grounds set out in memorandum filed in support of the without notice application, I am satisfied there are reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity (namely, the sale of methamphetamine) and had effective control of the property sought to be restrained such that the property should be treated as if Mr Vaka had an interest in it. I am satisfied that interest was wholly or in part derived from the significant criminal activity, rendering the property sought to be restrained as “tainted” within the meaning of s 5 of the Act.

[6]    I grant the on-notice restraining order in respect of the Harley Davidson motorcycle accordingly, as well as the associated keys and immobilisation devices. I also grant the effective control order sought under s 17A of the Act.

Grau J