The
Court of Appeal referenced medieval law and Magna
Carta when allowing Maketu Mongrel Mob member Valentine Barclay Nicholas challenge a proceeds-of-crime forfeiture order over land claimed to be of
cultural and spiritual significance.
A 2016 High Court order
confiscated five properties owned by Nicholas at Maketu in the Bay of Plenty together
with cash and motor vehicles following police evidence of drug supply and money
laundering with profits assessed in excess of $1.17 million. Police do not have to prove any crime has
been committed when seizing property under the Criminal Proceeds (Recovery)
Act. It is for suspected criminals to
prove seized assets were not purchased with proceeds of crime. At the High Court confiscation hearing Nicholas
argued, without success, that large sums of money in bank accounts were
gambling winnings and that the police assessment of $1.17 million gained from
criminal activity was wrong. Nicholas
said four of the five properties confiscated were his whanau’s ancestral land. Confiscation was unduly harsh, he said.
Magna
Carta is part of New Zealand law, said the Court of Appeal,
with its general protection of property rights against seizure by the state. Questions of forfeiture were referred back to
the High Court in respect of 633 Maketu Road and Whakamarama. Nicholas said the Whakamarama land holding is
ancestral land, originally belonging to his paternal grandfather’s hapu. Nicholas became the registered owner not by
reason of any purchase but by Maori Land Court administrative convenience following
1967 legislation redrawing ownership of Maori land titles. The property at 633 Maketu Road is the
Nicholas family home. He says this is
the whanau’s papakainga. Multiple
generations live on site. The placenta
of newborn has been buried there.
The other Nicholas
properties remain forfeit, the Court of Appeal ruled. Number 631 Maketu Road operates as Mongrel
Mob headquarters, the police say.
Nicholas says it is a gym and workshop.
Number 634 Maketu Road is a rental owned by Nicholas.
Nicholas
v. Commissioner of Police – Court of Appeal (19.10.17)
17.140