IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CIV-2023-441-64
[2024] NZHC 3469	

UNDER	the Criminal Proceeds (Recovery) Act 2009	
IN THE MATTER OF	an application under ss 21, 24 and 25	
BETWEEN	COMMISSIONER OF POLICE
Applicant	
AND	TUPORO MATATAI MARAROA
Respondent	

Hearing (by VMR):	18 November 2024	
Counsel:	M Mitchell for the Applicant	
Judgment:	20 November 2024	

JUDGMENT OF GWYN J
(Type 1 Assets Forfeiture Order)

[1]	The Commissioner of Police (Commissioner) has applied for an assets forfeiture order in relation to cash totalling $106,080 (cash), seized from the respondent’s vehicle in October 2023. The Commissioner advances that the cash is tainted property because it was directly or indirectly derived from significant criminal activity, namely cannabis dealing.

[2]	The  Commissioner  obtained   a   without   notice   restraining   order   on   15 November 2023 in relation to the cash.1 On 12 June 2024 Churchman J granted an on-notice restraining order.2

1	Commissioner of Police v Mararoa [2024] NZHC 3228.
2	Commissioner of Police v Mararoa HC Napier CIV-2023-441-64, 12 June 2024 (Minute of Churchman J).

COMMISSIONER OF POLICE v MARAROA [2024] NZHC 3469 [20 November 2024]

[3]	The respondent has disclaimed any knowledge of the cash and no other person has claimed an interest in it.

Applicable principles

[4]	The Commissioner’s application seeks a type 1 assets forfeiture order. An application for a type 1 assets forfeiture order is determined in accordance with s 50 of the Criminal Proceeds (Recovery) Act 2009 (Act). Section 50 provides:

50	Making type 1 assets forfeiture order

(1)  If, on an application for a type 1 assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make a type 1 assets forfeiture order in respect of that specific property.

…

(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.

[5]	The Commissioner sought to have the assets forfeiture order made when the matter was last called, before Grau J on 1 August 2024. The submission for the Commissioner was that s 50(4) does not apply in this case because that provision is to prevent forfeiture of property before a rightful owner can be identified, not to prevent forfeiture where an owner has been identified but chooses not to engage. Justice Grau did not accept that interpretation of s 50(4).3

[6]	Where the Court is satisfied on the balance of probabilities that specific property is tainted property, it must make an assets forfeiture order in respect of that

3	Commissioner of Police v Mararoa HC Napier CIV-2023-441-64, 1 August 2024 (Minute of Grau J) at [7].

property.4 “Tainted property” is defined in s 5 of the Act as meaning any property that has wholly, or in part, been:

(a)	acquired as a result of significant criminal activity; or

(b)	directly or indirectly derived from significant criminal activity.

[7]	Section 6 of the Act defines significant criminal activity, in turn, as meaning 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 of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.

The application

[8]	In light of Grau J’s decision, the matter came before me on 18 November 2024, being 12 months after the grant of the without notice restraining order in respect of the cash, on 15 November 2024. In the absence of any opposition to the Commissioner’s application it was considered on the papers.

Evidence

[9]	An affidavit dated 20 June 2024 was filed by Detective Shaun Kennard, setting out the evidential basis for the application.

Circumstances of the seizure of the cash

[10]	The respondent is described in the evidence for the Commissioner as a 19-year- old beneficiary who has no legitimate source of income that would explain his possession of the cash. He also has an association with the Rebels motorcycle gang.

4	Criminal Proceeds (Recovery) Act 2009, s 50(4).

[11]	In the early hours of the morning of 14 October 2023, the respondent was stopped by the Police travelling north on the Hawke’s Bay Expressway, near Hastings, in possession of 14 grams of cannabis and the $106,080 cash in the boot of his vehicle.

[12]	When questioned the respondent claimed not to have been aware of what was in his boot and said he did not know who the money belonged to. Shortly after being stopped by the Police, the respondent returned to Auckland having spent only a few hours in Hawke’s Bay. His cell phone records demonstrated that he was engaged in the sale of cannabis and also demonstrated that he had done three “there and back” trips to Hawke’s Bay from Auckland within the preceding 35-day period.

[13]	The Commissioner submits that such trips are consistent with the respondent either supplying bulk cannabis or being supplied with bulk cannabis, either of which possibility would explain the large quantity of cash in the boot of the vehicle.

Criminal proceedings

[14]	In the intervening period since the application came before Grau J, the respondent has pleaded guilty to, and been sentenced on, charges of selling cannabis, offering to sell cannabis and possession of cannabis.

Decision

[15]	The relevant standard of proof for forfeiture order applications is the balance of probabilities.5 The Commissioner must demonstrate that it is more likely than not that the criteria for forfeiture are satisfied in the particular case. That is, the Court is satisfied that it is more likely than not that the property has been derived to some degree from activity which, if proceeded against as a criminal offence, would be punishable by a maximum penalty of five years’ imprisonment.

[16]	In this case, the Commissioner seeks a forfeiture order on the basis that the cash found in the boot of the respondent’s vehicle is more likely than not to have been

5	Section 15.

derived from cannabis dealing which is an offence punishable by a maximum penalty of eight years’ imprisonment.6

Result

[17]	I am satisfied, in the absence of any legitimate explanation for the cash located in the boot of the respondent’s vehicle, the Commissioner has established this money was the proceeds of significant criminal activity relating to the supply of cannabis. The circumstances of Mr Mararoa’s arrest, including the cannabis found together with the cash in his car, and his cell phone records and travel movements, strongly support the conclusion that the large sum of cash found in his vehicle was derived from significant criminal activity. In the absence of Mr Mararoa having any other legitimate source of income that could account for the cash, there is no realistic or tenable explanation for its accumulation.

[18]	It follows that I am satisfied the cash in the sum of $106,080, which is the subject of the Commissioner’s application, is tainted property because it is the proceeds of Mr Mararoa’s significant criminal offending. Being satisfied that there are no other persons who may have an interest in the property, that the cash has been subject of a restraining order for at least one year, and there being no other outstanding claims to the money, an assets forfeiture order is made that the $106,080 cash located in Mr  Mararoa’s  vehicle  on  the  Hawke’s  Bay  Expressway  near  Hastings,  on  14 October 2023, is to vest in the Crown absolutely and to be in the Official Assignee’s custody and control.

Gwyn J

6	Misuse of Drugs Act 1975, s 6(1)(d) and (2).