Commissioner of Police

[2025] NZHC 2114

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-000149

[2025] NZHC 2114

IN THE MATTER OF

An application pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

LIVAI SAKEO WAQAIRAWAQA

Defendant

Hearing:

On the papers

Counsel:

A J Gordon for the Applicant

A C Cresswell for the Defendant

Judgment:

30 July 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 30 July 2025 at 4PM

…………………………………………….

Deputy Registrar

Solicitors:

Gordon Pilditch, Rotorua

Counsel:
A Cresswell, Barrister, Auckland

COMMISSIONER OF POLICE v WAQAIRAWAQA [2025] NZHC 2114 [30 July 2025]

Introduction

[1]    The Commissioner of Police seeks type 1 assets forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 against Livai Waqairawaqa. The orders sought concern cash totalling $38,360.90, a gold necklace and gang pendant, and

$20,801.89 cash from the sale of a 2018 Ford Ranger (the Property) — all of which is attributed to Mr Waqairawaqa.

[2]    On 24 July 2025, Ms Cresswell for Mr Waqairawaqa filed a memorandum confirming her client concedes the application and does not oppose forfeiture.

Procedural background

[3]    Following a jury trial, Mr Waqairawaqa was convicted on 19 September 2024 of conspiring to supply one kilogram of methamphetamine (valued between $140,000 and $150,000) and of supplying 28 grams of methamphetamine (valued between

$6,000 and $8,000). On 13 November 2024, Judge J Bergseng sentenced him to four years and four months’ imprisonment for that offending.

[4]    On 4 April 2025, with consent of both parties, van Bohemen J made restraining orders in respect of the Property and an order for the sale of the Ford Ranger.1

[5]    On 28 July 2025, Ms Gordon for the Commissioner filed a memorandum requesting that the matter be dealt with on the papers or be set down for formal proof. Later that day, I confirmed that the application would be dealt with on the papers.

Legal Principles

[6]    If I am satisfied on the balance of probabilities that the Property is “tainted” then I must make the type 1 assets forfeiture orders sought.2 “Tainted property” means any property that is wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity.3 In turn, “significant criminal activity”

1     Commissioner of Police v Waqairawaqa HC Rotorua CIV-2024-463-149, 4 April 2025 (Minute of van Bohemen J).

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

3     Criminal Proceeds (Recovery) Act 2009, s 5(1).

includes engaging in an activity which, if proceeded against as a criminal offence, would amount to offending punishable by a maximum term of imprisonment of at least five years.4

[7]    Inferences can be drawn from established criminal activity, disparity between assets and legitimate income, and a lack of credible explanation.5 The courts readily infer that criminal activity took place over a greater period of time than that proved beyond reasonable doubt in a criminal proceeding, and involvement in criminal activity and their unlawful benefit may be proved with circumstantial evidence such as the possession of large sums of unexplained cash.6

Discussion

[8]    In summary, I am satisfied that the evidence adduced by the Commissioner establishes on the balance of probabilities that the Property is “tainted”. In which case, I must grant the type 1 assets forfeiture orders sought.

[9] I accept Mr Waqairawaqa’s convictions as conclusive proof he committed the offences outlined above at [3].7 Furthermore, the supporting affidavits provide compelling evidence of further methamphetamine offending. This brings the total quantum of methamphetamine to a conservative estimate of $368,000. Given the maximum penalties set out in the Misuse of Drugs Act 1975, the methamphetamine offending qualifies as significant criminal activity under s 6 of the Criminal Proceeds (Recovery) Act 2009.

[10]   Inland Revenue records show Mr Waqairawaqa’s declared average net income between 2018 to 2024 was $24,800.70 per annum. I accept that his declared income would have likely been insufficient to accumulate the Property. Whereas the evidence showed that Mr Waqairawaqa received alternative undeclared sources of income from what appears to be significant criminal activity.

4      Criminal Proceeds (Recovery) Act 2009, s 6(1)(a).

5     Hayward v Commissioner of Police [2014] NZCA 624 at [39]–[42]; and Commissioner of Police v Dryland [2013] NZCA 247 at [34]–[39].

6     Hayward, above n 3; and Commissioner of Police v de Wys [2016] NZCA 634.

7     Evidence Act 2006, s 47.

[11]   For example, between 1 August 2017 and 18 December 2023, he received approximately $97,609.49 in cash deposits to his bank accounts and in unidentified and undeclared direct credits. Mr Waqairawaqa also paid cash for high end assets, including the Ford Ranger, Harley Davidson motorcycle, and gold necklace and pendant. This suggests he had access to further large sums of undeclared and unexplained cash — which is consistent with cash-intensive criminal activity such as methamphetamine offending.

[12]   On the balance of probabilities, I infer from Mr Waqairawaqa’s established and likely methamphetamine offending, the disparity between the Property and his legitimate declared income, the lack of credible explanation and the circumstantial evidence such as his possession of large sums of unexplained cash, that the Property was wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity. It is therefore “tainted property” under the Act.

Decision

[13]The application is granted.

[14]Type 1 assets forfeiture orders per s 50 of the Act are now issued in respect of:

(a)cash totalling $38,360.90;

(b)a gold necklace and gang pendant; and

(c)$20,801.89 cash from the sale of a 2018 Ford Ranger Wildtrak vehicle with the registration QNC579 — formally registered as LKT831 and BULANS.

Harvey J