COMMISSIONER OF POLICE v AFAKASI & ORS [2015] NZHC 123

COMMISSIONER OF POLICE v AFAKASI & ORS [2015] NZHC 123 [9 February 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-7207[2015] NZHC 123UNDER the Criminal Proceeds (Recovery) Act2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND HENRY AFAKASIFirst RespondentZEBULIN DAVORENSecond RespondentKAINUI (BEN) KAUKASIThird RespondentLOIS CARNACHANFourth RespondentVADI TOBIAFifth Respondent.contHearing: 9 February 2015Counsel: K E Hogan for the ApplicantNo appearance by or on behalf of Mr Fetu or interested partiesJudgment: 9 February 2015ORAL JUDGMENT OF MUIR JSolicitors: Crown Solicitor, AucklandCopy to: Mr FetuJORDAN IOANESixth RespondentTINO LAVEASeventh RespondentJOHN FETUEighth Respondent[1] The Commissioner seeks asset forfeiture orders pursuant to s 50 of theCriminal Proceeds (Recovery) Act 2009 ("the Act") in relation to the followingvehicles:(a) 2008 Holden HSV Utility registration EGU312;(b) 2001 BMW 330CI motor vehicle, registration DLW895;(c) 2001 Harley Davidson motorcycle, registration A9DYZ;(d) 2000 LVVT Road Rage motorcycle, registration A4JAA;(e) 1999 Honda VTR motorcycle, registration 43YYD; and(f) 2003 Harley Davidson VRod motorcycle, unregistered but with a VIN number 1HD1HAZ4X3K841582.[2] The application has a long history. It was last before Toogood J on 3 December 2014. In advance of that call Mr Ryan, counsel for Mr Fetu and parties interested in the first four vehicles identified above, advised that his clients no longer opposed the applications for forfeiture orders. Regrettably, immediately before the last call it was identified that Mr Fetu having been bankrupted, the position of the Official Assignee would need to be established.[3] In the result, the matter was adjourned for hearing in today's Duty Judge list.Mr Ryan was present at the earlier call and is therefore fully aware of today's date. Iam advised by Ms Hogan that communications with him in the intervening period leave no doubt as to his knowledge the matter would be called today and that theCommissioner would be advancing it's application dated 19 December 2012 forforfeiture orders.[4] Ms Hogan appropriately advised the Court that, as a result of the lacuna involving the Commissioner, Mr Ryan had expressed a possible intention to maintain opposition to forfeiture orders but no appearance has been made by him today.[5] In those circumstances I regard it as appropriate to dispose of theCommissioner's applications.[6] The parties who initially filed notices of opposition to the Commissioner'sapplications expressing an interest in the four vehicles were:(a) Teuila Ropati in respect of the Holden Utility;(b) Finau Toilalo in respect of the BMW330CI;(c) Inoke Tupou in respect of the Harley Davidson A9DYZ; and(d) Faith Young in respect of the Road Rage motor cycle.Asset forfeiture orders – the legislative position[7] Pursuant to s 50(1) of the Act, if the Court is satisfied on the balance of probabilities that the property is tainted property, the Court must make an assets forfeiture order in respect of that property. The phrase "tainted property" is definedin s 5(1) of the Act as:Any property that has wholly or in part, been either:(a) acquired as a result of significant criminal activity; or(b) directly or indirectly derived from significant criminal activity.[8] "Tainted property" in turn is defined to include:Any property that has been acquired as a result of, or directly or indirectly derived from more than one activity if at least one of those activities is a significant criminal activity.[9] "Significant criminal activity" is defined in s 6 of the Act as:An activity engaged in by a person that if proceeded against as a criminal offence would amount to offending;(a) that consists of or includes, one or more offences punishable by a maximum term of imprisonment of five years or more; or(b) from which property, proceeds or benefits to the value of $30,000 or more had directly or indirectly been acquired or derived.[10] In terms of s 50(4) of the Act an asset forfeiture order shall not be made in relation to property that no person has claimed an interest in unless a prior restraining order has been made and has been in place for at least one year. I note that restraining orders were made by Katz J on 11 April 2013.The evidence[11] In her submissions Ms Hogan summarises the evidence that Mr Fetu owned or effectively controlled the six vehicles subject to the forfeiture application and the evidence that they are tainted property. In relation to the former she makes the point that this evidence is typically advanced in relation to coincident profit forfeiture orders and that ownership or effective control is not of itself a prerequisite for a s 50 order. That evidence in relation to ownership/control was contained in:(a) The affidavit of Detective Allan's of 18 December 2012, in particular paras 2.2, 4.3, 4.4 and 4.5;(b) The affidavit of Reece Jones dated 17 January 2014 in relation to sale of the Holden Utility to Mr Fetu; and(c) The affidavit of Detective Allan dated 21 January 2014 in which he discredits the interested parties' affidavits.[12] That evidence includes:(a) In relation to the Holden Utility that:(i) it was found at Mr Fetu's address;(ii) the keys and documents relating to the vehicle were inside that address;(iii) the registered owner of the vehicle (the sister of Mr Fetu'spartner) had left New Zealand for Melbourne six months before the vehicle was acquired in her name;(iv) Mr Fetu test drove the vehicle; and(v) The vehicle was purchased with cash bundled in a similar way to many located upon the termination of the Operation Jericho investigation.(b) In relation to the BMW;(i) that vehicle was found at Mr Fetu's address;(ii) the keys were inside the address;(iii) Mr Fetu's Head Hunters patch was in the boot of the car; and(iv) The registered owner, Mr Toilalo told the Police the vehicle was not his.(c) In relation to the Harley Davidson A9DYZ;(i) The vehicle was found at Mr Fetu's sister's address;(ii) The keys were inside the address proximate to Mr Fetu'sbelongings;(iii) Mr Fetu was the registered owner prior to Inoke Tupou;(iv) Mr Fetu was seen riding the motorcycle;(v) Mr Fetu's sister said the motorcycle belonged to Mr Fetu; and(vi) Following his arrest Mr Fetu was asked for keys to the motorcycle and said in response "Are they taking my motor bikes?". When he was further asked how many there were, hereplied "There were four".(d) In relation to the Road Rage motor cycle;(i) This was found at Mr Fetu's sister's address;(ii) The keys were inside the address proximate to Mr Fetu'sbelongings;(iii) Again Mr Fetu's sister said the motor cycle belonged to Mr Fetu and he himself acknowledged it did; and(iv) No evidence was filed by the registered owner (Faith Young) despite her notice of opposition.(e) In relation to the Honda motorcycle:(i) This was registered to a Johnathan Saunders who was servedwith the Commissioner's application (refer affidavit of servicedated 12 February 2013). Mr Saunders took no steps;(ii) Mr Fetu was seen by police to be riding the motorcycle on 12 February 2011;(iii) It was seized from Mr Fetu's sister's address;(iv) Mr Fetu's sister referred to it being Mr Fetu's motorcycle;(v) The keys were found with Mr Fetu's belongings; and(vi) The comments previously referred to by Mr Fetu at the time of his arrest.(f) In respect of the unregistered Harley Davidson motorcycle:(i) Mr Fetu was seen by police to be riding the motorcycle on 7 February 2012;(ii) The comments previously referred to at the time of Mr Fetu'sarrest; and(iii) The fact that no party has asserted any interest in it.[13] As to the primary issue before the Court, namely whether each of thesevehicles is, within the terms of s 50 "tainted property", I am satisfied that the Commissioner discharges, on the balance of probabilities basis, the onus on him. I do so for the following reasons:(a) The Inland Revenue Department has no record of any taxable income for Mr Fetu for the tax years ending 2006-2012;(b) On 16 December 2003 Mr Fetu was sentenced to a lengthy period of imprisonment and would not have been in a position to generate any legitimate income during that period of incarceration;(c) He holds no bank accounts;(d) The circumstances of the Holden Utility's acquisition with bundledcash was indicative of it being acquired with the proceeds of significant criminal activity, particularly given the fact that the money was bundled in the same way as other cash totalling $240,000 identified at the conclusion of the Operation Jericho investigation;(e) Mr Fetu was, in October 2014, convicted of dealing in high value controlled drugs, which such convictions were described byToogood J in his sentencing notes of 20 November 2014 as having been based on evidence he found particularly compelling; and(f) Neither Mr Fetu nor the interested parties have credibly asserted that the vehicles were otherwise acquired.Result[14] I make asset forfeiture orders pursuant to s 50 of the Act in respect of the six vehicles previously identified in this judgment. Such vehicles are to vest in theCrown absolutely and to be vested in the Official Assignee's custody and control.[15] I award costs on a 2B basis in favour of the Commissioner. If any issue arises in respect of the quantification of those costs a memorandum may be filed and the matter listed in the Duty Judge List accordingly.________________________________Muir J