Commissioner of Police v Taikoko [2018] NZHC 2373 (10 September 2018)

Last Updated: 17 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-159 [2018] NZHC 2373

UNDER	the Criminal Proceeds (Recovery) Act 2009
BETWEEN	COMMISSIONER OF POLICE Applicant
AND	JOSEPH TAIKOKO Respondent

Hearing:	On the papers
Counsel:	K Hogan for the Applicant T Clee for the Respondent
Judgment:	10 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 10 September 2018 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:..............................

Counsel/Solicitors:

Kayes Fletcher Walker, Manukau T Clee, Barrister, Auckland

COMMISSIONER OF POLICE v TAIKOKO [2018] NZHC 2373 [10 September 2018]

Introduction

[1] The Commissioner seeks asset forfeiture orders in respect of the following property:

2011 Harley Davidson motorbike, registration B3LEU (Harley B3) 2010 Harley Davidson motorbike, registration B5MAP (Harley B5) 2009 Harley Davidson motorbike, registration B9KRN (Harley B9) Cadillac motor vehicle, registration HKA 995¹ (the Cadillac)
2007 Chrysler motor vehicle, registration KCS24 (the Chrysler)

[2] On 27 August 2018 counsel for Mr Taikoko filed a memorandum recording the Commissioner’s abandonment of an application in respect of certain other property and the fact that in respect of Harley B3, Harley B5, Harley B9, the Cadillac and Chrysler no opposition had been or would be filed.

[3] In an earlier memorandum, dated 29 June 2018, counsel advised that the only vehicle Mr Taikoko opposed forfeiture orders in respect of was the Chrysler but no subsequent notice of opposition was filed in that respect.

[4] Both counsel for the Commissioner and for Mr Taikoko invite a decision on the papers.

Discussion

Tainted property?

[5] I am satisfied on the balance of probabilities that each of Harley B3, Harley B5, Harley B9, the Cadillac and the Chrysler are tainted property; that is they have been wholly or in part:

1. The application refers to the vehicle as a 1984 model as does its registration. The photographs exhibited to the Commissioner’s affidavit in support depict a 1964 model.
   • (a) acquired as a result of significant criminal activity; and/or

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

[6] Mr Taikoko’s significant criminal activity is evidenced by the following:

(a) The affidavit of Detective Sergeant Anderson deposing to supply of methamphetamine of up to one kilogram at a time to Lucky Campbell in Gisborne and Mr Taikoko’s management of a drug dealing operation in Auckland.

(b) Mr Taikoko’s lack of legitimate income, in particular:

(i) the fact that his only declared income since 2011 has been a Minsitry of Social Development benefit which stopped on 11 November 2016; and

(ii) his company, F 1st Limited has declared no income or filed any GST returns.

(c) Cash deposits into Mr Taikoko’s bank accounts and his acquisition of high value items in particular:

(i) a deposit of $247,752.00 in cash to his personal and company accounts since 3 May 2017.

(ii) $91,450 spent on vehicles subject to the application; and

(iii) $51,633.00 spent at Turners Car Auctions, Manurewa Dollar Dealers and Otahuhu Dollar Dealers.

[7] In several recent decisions, the Courts have emphasised the probative value of large cash transactions in establishing criminal activity. In Commissioner of Police v

Antolik, Downs J observed that cash is “an atypical 21^st Century phenomenon”.² Likewise in Commissioner of Police v Dryland the Court of Appeal noted that:³

Significant criminal activity, involving a large cash transaction, is the only likely option if the money was not lawfully earned.

And in Commissioner of Police v de Wys the Court of Appeal similarly observed that if cash sums cannot be adequately explained this will tend to support an inference that the cash has been sourced from illegitimate or criminal activity.⁴

[8] In the present case there is no credible explanation by the respondent identifying a legitimate source of the monies he used to acquire the relevant assets or which resulted in the cash deposits. Indeed, in the absence of any opposition and supporting affidavit there is no formal explanation at all. At the time of his arrest on 8 February 2018 Mr Taikoko did tell Police that he had purchased the motorbikes using funds from an insurance pay out. However, inquiries have established that such pay out occurred on 19 October 2017, which post-dates acquisition of each of the Harley B3, B5 and B9 motorcycles.

[9] I am therefore satisfied that each of the assets is tainted property.

Absence of restraint for one year

[10] The Commissioner draws the Court’s attention to s 50(4) of the Criminal Proceeds (Recovery) Act 2009:

(4) Despite subsection (1), the Court may not make an 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

² Commissioner of Police v Antolik [2016] NZHC 2649 at [30].

³ Commissioner of Police v Dryland [2013] NZCA 247 at [34].

⁴ Commissioner of Police v de Wys [2016] NZCA 634 at [71].

(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.

[11] Restraining orders were first made in this case by Lang J on 5 February 2018. Therefore the requirements of s 50(4)(b) are not satisfied. Neither does the Commissioner advance his case on the basis of either of s 50(4)(a) or (c). Rather he says that the assets are not property that “no person has claimed an interest in”.

[12] I am satisfied that he is correct in that submission. I adopt a purposive construction of the section, namely that it is directed to the situation where the respondent has not claimed an interest in the assets concerned and where therefore it is appropriate to give an adequate opportunity for others to do so before the forfeiture order is made.

[13] In the present case the evidence establishes claims to an interest in each item of property by the respondent.

Harley B3

[14] On 14 December 2017 Mr Taikoko was stopped riding Harley B3 by Sergeant Robert Cato. Mr Taikoko told Sergeant Cato that he owned the motorbike. He has also been issued with seven traffic infringement notices while riding it and was the only person to have been ticketed in respect of it.

[15] During a search of Mr Taikoko’s home address on 8 February 2018 a receipt was located in Mr Taikoko’s name for purchase of the motorcycle on 18 July 2017 for
$20,800.

[16] On 21 February 2018 he told Police that he was in a position to tell them where “the Harleys” were.

[17] In contravention of the restraining order made by Lang J Mr Taikoko arranged on or about 25 July 2018 to transfer the registered ownership of Harley B3 to Ms Dillion Piungaura Tini. Ms Tini has expressly denied having any interest in the motorcycle. The previous registered owner of the motorcycle (Mr Mataio) has taken
no steps in the proceeding and Mr Mataio’s father has expressly denied that his son had any interest in the motorcycle.

Harley B5

[18] F 1st Limited, a company of which Mr Taikoko is the sole director and shareholder, became the registered owner of this motorcycle on 21 September 2017.

[19] On 10 February 2018 Mr Taikoko arranged to transfer the registered ownership of the motorcycle to Mr Rahul Nair. On 26 February 2018 Police seized the motorcycle from Mr Nair pursuant to Lang J’s restraining order and Mr Nair has taken no steps in this proceeding.

[20] I am likewise satisfied that the motorcycle was one in which Mr Taikoko claimed an interest at the time of the restraining order. Indeed, he claimed to have purchased this motorcycle (as with the other motorcycles) from an insurance pay-out he had received.

Harley B9

[21] This was purchased by F 1st Limited on 21 September 2017 from Cycle Spot. The purchase price was $17,500. Mr Taikoko traded another Harley Davidson motorcycle for $10,000 and paid an additional $7,500 in cash. Again, Mr Taikoko claimed to have purchased the motorcycle from an insurance pay out in his favour.

[22] On 18 March 2018 Mr Taikoko purported to transfer the registered ownership of the motorcycle to William Goodwin. Mr Goodwin disavowed ownership of it and the certificate of particulars indicates that it has subsequently been transferred to “persons unknown”.

[23] On 24 April 2018 the motorcycle was located in possession of Mr Lee Waerea, who has likewise disavowed ownership of it. It was at that time seized pursuant to Lang J’s restraining order.

The Cadillac

[24] F 1st Limited became the registered owner of the Cadillac on 12 August 2017, the vehicle having been purchased by Mr Taikoko from Mr Craig Holmes for $14,000 cash.

[25] On 13 September 2017 Mr Taikoko was issued with three traffic infringement notices while driving in the vehicle.

[26] On 23 November 2017 Mr Taikoko uploaded two photographs of the vehicle to his Facebook page.

[27] On 8 February 2018 he told Police the Cadillac was with a friend called “Luke” and on 21 February 2018 advised Police that he could tell them where it was located.

[28] On 25 July 2018 Mr Taikoko arranged to transfer the registered ownership of the vehicle to Ms Tini who has expressly denied having any interests in it.

[29] I am again satisfied that Mr Taikoko has claimed an interest in the vehicle for the purposes of s 50(4).

The Chrysler

[30] F 1st Limited became the registered owner of the Chrysler on 12 May 2017 after purchase by Mr Taikoko from a Mr Vikrant Pathania for between $14,000 or
$15,000 cash.

[31] On 8 February 2018 Police located the Chrysler at Mr Taikoko’s address and seized it. On that date Mr Taikoko said he purchased it “a couple of years ago when he was working for a mechanic”. That assertion was false as to timing.

[32] On 25 July 2018 Mr Taikoko purported to transfer the registered ownership of the Chrysler to Ms Tini, again in contravention of the restraining order. Ms Tini has expressly denied having any interest in the vehicle.
[33] Again, I am satisfied that Mr Taikoko has claimed an interest in it for the purposes of s 50(4).

Result

[34] I make asset forfeiture orders under s 50(4) of the Criminal Proceeds (Recovery) Act 2009 in respect of vehicles Harley B3, Harley B5, Harley B9, the Cadillac and the Chrysler.

Muir J