Commissioner of Police v Fotu [2016] NZHC 577 (6 April 2016)

Last Updated: 27 December 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000434 [2016] NZHC 577

UNDER	the Criminal Proceeds (Recovery) Act 2009
BETWEEN	COMMISSIONER OF POLICE Applicant
AND	UATI JUNIOR FOTU Respondent

Hearing:	4 April 2016
Appearances:	E L Woolley for Applicant No appearance for Respondent
Judgment:	6 April 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 6 April 2016 at 3.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar

Date.............................

COMMISSIONER OF POLICE v FOTU [2016] NZHC 577 [6 April 2016]

Introduction

[1] The Commissioner applied for restraining, ancillary and civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009. The application had a first call in the duty judge list on 4 April 2016. There was no appearance for Mr Fotu and, being satisfied as to service, I allowed Ms Eastwood, for the Commissioner, to proceed with the application.¹

[2] Under s 50 this Court must make an assets forfeiture order if satisfied on the balance of probabilities that specific property is tainted property. Property is tainted property if it has wholly or partly been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.² I was satisfied as to these matters and made an assets forfeiture order as sought in paragraph 1(c) of the Commissioner’s application dated 10 March 2016: cash of
$78,915, cash of $18,295 and a Dodge motor vehicle registration number HYJ349 are to vest in the Crown absolutely and to be in the Official Assignee’s custody and control.

[3] For convenience, because of other matters waiting to be heard, the reasons for the order were to follow.

Reasons for order

[4] The grounds for the application were set out in affidavits by Detective Sergeant Espinosa and Detective Smith. Those affidavits disclose that Mr Fotu came to the attention of the Police in May 2015 as part of a wider investigation. Intercepted communications led the police officers to conclude that Mr Fotu was very likely dealing in methamphetamine. These communications included texts between Mr Fotu and an associate, Mr Zhu, following the arrest of a third man,

1. Mr Fotu was served in person on 18 March 2016. He told the officer serving him that his lawyer was Ms Pecotic but, when contacted, Ms Pecotic advised that she did not have instructions on this matter.
2. Criminal Proceeds (Recovery) Act 2009, s 5: “significant criminal activity” is defined as criminal activity that, if proceeded against as a criminal offence, would amount to offending that is or includes offences punishable by a maximum of five years’ imprisonment or more or from which property, proceeds or benefits of a value of $30,000 or more have been acquired.

which caused concern to Mr Fotu and Mr Zhu as to whether they themselves were exposed.

[5] It is alleged that subsequent intercepted communications showed the two making arrangements for Mr Fotu to purchase methamphetamine from Mr Zhu on three occasions. In addition, there were discussions regarding payment by Mr Fotu to Mr Zhu from previous methamphetamine dealing. Mr Fotu was arrested on 14 August 2015. It is alleged (based on intercepted communications) that the two had arranged to meet for the purpose of Mr Fotu buying methamphetamine and also paying Mr Zhu money he owed on previous deals. It is alleged that Mr Fotu was to pay Mr Zhu $74,000 for 6 ounces of methamphetamine and a further $10,000 as part payment of money owing. I accepted that, on the balance of probabilities, the intercepted communications did have these meanings.

[6] DS Espinosa’s affidavit describes Mr Fotu arriving at the agreed meeting place on Hobson St, Auckland at about 8 pm. Mr Zhu got into the car. Mr Fotu drove through the central city for a few minutes. Police officers stopped the car as it returned to Hobson Street and searched it. They found two bundles of cash hidden in a child’s car seat. The first contained $69,365 and the other $9,550. There was
$1,505 in Mr Fotu’s wallet. In his police interview Mr Fotu denied that the bundles of cash belonged to him. He said initially that he had met Mr Zhu for a drink and later that he had met him to buy cannabis.

[7] A subsequent search of Mr Fotu’s home address produced a pistol, ammunition, $18,295 cash, various items consistent with methamphetamine dealing and a Dodge motor vehicle.

[8] Mr Fotu is facing charges of conspiracy to supply methamphetamine, possession of methamphetamine for supply and firearms offences. He is on bail pending the trial which is to commence on 18 May 2016.

[9] Detective Smith’s affidavit canvasses financial aspects of the Commissioner’s case. These include the following. Mr Fotu had no explanation for the cash found at his property. IRD records for the years 2009 – 2012 show that Mr Fotu’s average
income, apparently from contracting work during those years, averaged $47,065 per annum. However, in 2013 his annual income was only $7,137. In 2014 his annual income from combined employment and ACC totalled $26,032.60. In 2015 his only income came from ACC, $602.64. Police enquiries have been unable to identify any bank accounts currently held or operated by Mr Fotu.

[10] Detective Smith provides evidence regarding the value of the Dodge and the circumstances of its acquisition by Mr Fotu. The Dodge is a 2015 Dodge Journey. Its as new value is $48,990. Mr Fotu was driving the vehicle on 9 April 2015 when he was stopped for speeding. However, the NZ Transport Agency certificate of particulars shows that he acquired title to it on 28 May 2015.

[11] Mr Fotu told the Police that he had purchased the Dodge for $10,000 with money he won at the casino. Sky City Casino’s records show that on 18 April 2015 Mr Fotu did win $9,340 at gaming machines but then lost $3,400 playing Blackjack. Moreover, this account is inconsistent with information the Police obtained as to the prior ownership of the vehicle.

[12] The previous owner of the Dodge was a Daniel Parsons who had purchased it from a motor vehicle dealer in March 2015 for $43,000 cash. Mr Parsons told the Police that Mr Fotu, whom he knew from playing rugby, agreed to buy the Dodge from him for $40,000 and gave him $17,000 as a deposit. The balance was supposed to be paid at $500 per week but Mr Fotu failed to make any payments.

[13] This arrangement is entirely unsubstantiated. There is no receipt for the cash deposit Mr Parsons says Mr Fotu gave him. There is no record of any agreement to pay the balance. And although Mr Parsons says that he lost a lot of the $17,000 at the casino on his way home, Sky City’s records show that he only used his card once when he opened his account on 22 March 2015 and lost $20. Despite being advised of his rights to register an interest in the car as a result of the outstanding balance Mr Parsons has taken no steps.
[14] Mr Fotu’s partner, Renee Greaves, claimed that even though the Dodge is registered in Mr Fotu’s name Mr Fotu had bought it for her in March for her birthday and it is therefore hers. She has not signalled any intention to claim an interest.

[15] In these circumstances, where Mr Fotu has not received legitimate income that would account for these assets and where there is evidence of his involvement in methamphetamine dealing, I was satisfied on the balance of probabilities that the Dodge and cash were tainted property, being the proceeds of drug dealing.








P Courtney J