Homes built on Maori freehold land cannot be seized under proceeds of crime legislation even if built using ill-gotten gains, the High Court ruled.
In 2018, Jay Tarahini Kiwi, Vice-President of the Greazy Dogs motorcycle gang was sentenced to nine years imprisonment for methamphetamine dealing. The High Court subsequently ordered a property at 135 Kairua Road at Welcome Bay in Tauranga be forfeit as proceeds of crime. A nearby property at 224A Kairua Road was exempt from seizure; as Maori freehold land it came under exclusive jurisdiction of the Maori Land Court. The Te Ture Whenua Maori Act prohibits ownership passing to anyone other than those with a kinship connection to current Maori owners.
As part of their methamphetamine investigations, police investigated Jay Kiwi’s financial affairs. They identified his uncle, Warren Kiwi, had fallen behind in mortgage payments for 135 Kairua Road during 2015. With a mortgagee sale threatened, the property was sold to Jay Kiwi. Funding for the purchase materialised through John Aitken, former President of Greazy Dogs. Justice Katz ruled that Kiwi funded his purchase of 135 Kairua Road by laundering proceeds of his drug sales through a bank account controlled by a member of the Aitken family. The property was ‘tainted;’ purchased with the proceeds of crime and forfeit under the Criminal Proceeds (Recovery) Act. Kiwi purchased his uncle’s property at a considerable undervalue, paying some $102,000 for a property then having a rateable value of $227,000. The High Court was told his uncle has remained in occupation since the sale. Since 135 Kairua Road is held as general land, not Maori land, it is ‘property’ available for seizure as proceeds of crime.
Prior to his arrest, Kiwi was living at 224A Kairua Road. Phone calls previously intercepted by police identified Jay Kiwi as the person managing construction of a home at 224A Kairua Road. Police inquiries identified labour and materials for construction were commonly paid for with cash, in fifty dollar notes. Justice Katz ruled the home was ‘tainted,’ being funded with proceeds of crime. The house is built on Maori freehold land. As a fixture, the house forms part of the land. The Te Ture Whenua Act is designed to keep Maori land within Maori ownership. The effect of the Act is to prevent seizure of Maori freehold land as proceeds of crime, Justice Katz ruled. The High Court was told Maori Land Court records has title to 224A Kairua Road registered in the name of another of Jay Kiwi’s uncles, Graeme Kiwi. Graeme died in prison in 2017.
Commissioner of Police v. Kiwi – High Court (17.09.21)
21.157