Commissioner of Police v Vaka

[2024] NZHC 1529

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-024

[2024] NZHC 1529

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant

AND

NIU MATAEVALU VAKA

Respondent

AND

SAILOSI FIFITA SITALEKI

Interested Party

Hearing:	On the papers
Appearances:	A R Goodison for Applicant
Judgment:	12 June 2024

JUDGMENT OF CHURCHMAN J

[1]    The applicant has applied for a without notice restraining order relating to a 2007 Harley Davidson V-ROD VRS CAW motorcycle registration C1HZQ (1HD1HFZ147K808053; engine number HFZ808053), associated keys and immobilisation devices, registered to Sailosi Fifita Sitaleki of 2/17 Silver Creek Rd, Weymouth, Auckland.

[2]    The application is made pursuant to ss 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) on the basis that:

(a)the property is tainted property, and

(b)the respondent has unlawfully benefitted from significant criminal activity.

THE COMMISSIONER, THE NEW ZEALAND POLICE v NIU MATAEVALU VAKA [2024] NZHC 1529 [12

June 2024]

[3]    As the motorcycle is registered to someone other than the respondent the application includes an application for an effective control order pursuant to s 17A of the Act. Accordingly, the registered owner is listed as an interested party in the application.

[4]    The grounds upon which the effective control order is sought are that although the motorcycle is owned by Mr Sitaleki, it is under the effective control of the respondent.

[5]    Detective Ruth Collins has sworn an affidavit in support of the application. That affidavit describes incidents where the respondent was stopped while riding the motorcycle in question. He was wearing Comanchero supporter gear and told the Police that he was travelling to an unveiling and had borrowed the bike from a friend. Detective Collins also referred to a transcript of the conversation between the respondent and an associate which discusses the motorcycle and the motorcycle being transferred to Auckland where it would be cheaper for the respondent to pick up.

[6]    Detective Collins’ affidavit also confirms that Mr Sitaleki (the registered owner of the motorcycle) was born on 11 May 2001 and has no driver’s licence and no criminal history. However, he resides at an Auckland address with this brother who is an associate of the Comancheros Motorcycle Gang.

[7]    The affidavit records that on 9 December 2023, the brother of the registered proprietor of the motorcycle was stopped while riding the motorcycle and stated that the motorcycle belonged to a friend and that he was borrowing it.

[8]    In the same month the motorcycle was again stopped in Auckland and the rider identified as a Comanchero gang associate and a friend of the brother of the registered proprietor of the motorcycle.

[9]    The applicant seeks orders under ss 21 and 22 of the Act to restrain the motorcycle and alleges that either, the motorcycle is an “unlawful benefit” under s 7 of the Act or a material benefit from significant criminal activity under s 5A of the Act.

[10]   In support of the application being made without notice, the applicant says this is necessary to prevent concealment, disposal or erosion of the equity in the motorcycle.

[11]   Because the motorcycle is a depreciating asset, the applicant seeks an order under s 35(e)(v) of the Act for it to be sold and the proceeds held in the Official Assignee’s interest bearing account.

[12]   The affidavit also provides information as to the income and financial circumstances of the respondent and his partner and, on the basis of the calculations set out in the affidavit, expresses the view that the respondents’ declared income is insufficient to support their lifestyle.

[13]   The affidavit also refers to the respondent having pleaded guilty to and having been convicted of two criminal offences and sentenced in the District Court in Nelson to four years’ in prison on a charge of possessing methamphetamine for supply and two years’ six months’ imprisonment, concurrent, on a charge of conspiring to deal with methamphetamine. That sentencing took place on 16 April 2024.

The law

[14]   The Court of Appeal in the case of Vincent v Commissioner of Police1 explained the nature and purpose of restraining orders. They are effectively interim orders of limited duration and may be made without notice. The purpose of restraining orders is to preserve property while the Crown is gathering evidence to support an application for forfeiture. A forfeiture application is a separate procedure, and the Court cannot make a forfeiture order unless it is satisfied, on the balance of probabilities, that the relevant property is tainted property.

[15]   When considering a restraining order, the Court must be satisfied that there are reasonable grounds to believe that the property is tainted property or that the relevant person unlawfully benefited from significant criminal activity. The Judge is not

1      Vincent v Commissioner of NZ Police [2013] NZCA 412.

required to make a finding that the relevant property is tainted property or that the particular person did, in fact, unlawfully benefit from signification criminal activity.

[16]   This Court in Commissioner of New Zealand Police v Needham2 explained that the belief that the Court is required to form in relation to a restraining order, may be based on a wide range of evidence that would not be admissible at the stage where forfeiture orders are considered, let alone at a criminal trial.

Analysis

[17]   I have concluded that there are reasonable grounds to believe that the motorcycle is either tainted property or that the respondent has unlawfully benefited from significant criminal activity. The factors justifying that conclusion are the respondent’s membership of the Comancheros Motorcycle Gang; his pleas of guilty to the two serious methamphetamine related offences; the information that would indicate that his declared income is insufficient to support his lifestyle and the gang connection between the registered proprietor of the motorcycle, his brother, and the respondent.

[18]   I am satisfied that this has been an appropriate case for the application to be made without notice and I note the information in the memorandum of counsel which indicates that if the without notice application is granted, an on-notice application will follow within seven days.

[19]   I am also satisfied that this is an appropriate case for the Court to invoke s 17A of the Act and treat the respondent as having an interest in the motorcycle in question because he has effective control over it.

Outcome

[20]   The applicant is authorised to proceed on a without notice basis in respect of the present applications. A restraining order is issued in respect of the motorcycle referred to in para 1.

2      Commissioner of NZ Police v Needham [2022] NZHC 470.

[21]   I make an order under s 17A of the Act that the respondent has effective control over the motorcycle.

[22]   I leave for resolution once an on notice restraining order application has been filed, the question of whether or not an order for sale under s 35(e)(v) should be made.

Churchman J