Commissioner of Police v Novikov

[2025] NZHC 1503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-740

[2025] NZHC 1503

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

OLEG VLADIMIROVICH NOVIKOV

First Respondent

ANDREY TKACHENKO
Second Respondent

CARSPOT LIMITED
Third Respondent

SELL YOUR CAR LIMITED
Fourth Respondent

VLADIMIR NOVIKOV

Fifth Respondent

Hearing:	4 June 2024
Appearances:	M Harborow and A Wilson for Applicant K Hogan for Second Respondent
Judgment:	4 June 2025

ORAL JUDGMENT OF BECROFT J

Solicitors/Counsel:

Meredith Connell, Auckland C Morris, Auckland

K Hogan, Barrister, Auckland

COMMISSIONER OF POLICE v NOVIKOV [2025] NZHC 1503 [4 June 2025]

The order before the Court

[1]                 Before me today is a previously made order that the second-named respondent, Mr Andrey Tkachenko, “shall be examined by the Court … concerning the nature and location of [one missing commercial vehicle] and the keys for 50 commercial vehicles

…”

[2]                 This order was made on 2 May 2025 under s 35(c) of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[3]                 The issue is what is meant by the words “be examined by the court” and what process is envisaged by the order. Counsel have made brief and helpful submissions. I rule as follows.

Background

[4]                 The short background is that Mr Tkachenko is one of five respondents said to be part of an international syndicate comprising parties based in New Zealand and Japan. The syndicate is alleged to have imported 303 motor vehicles from Japan between March 2020 and March 2024. At least 252 of those vehicles were identified as having altered odometers and forged export certificates.

[5]                 The order was obtained to enable examination of the second defendant as to the location of a missing Nissan Atlas unregistered motor vehicle and as to 41 missing ignition keys for commercial vehicles, named in a schedule, which had been previously seized by the Commissioner of Police (the Commissioner).

The law

[6]Section 35(c) provides as follows:

35 Types of further order

Without limiting the generality of section 34(1), a court may, on an application under section 33(1), make 1 or more of the following further orders in relation to restrained property:

…

(c) an order for any person (including, without limitation, the respondent) to be examined by the court or the registrar of the court concerning the nature and location of any restrained property:

…

[7]                 That order is one of a suite of orders under s 35, the authority for which arises under ss 33 and 34 of the Act.

[8]                 The orders, including this s 35(c) order, must be in respect of “the restrained property”. There is no issue with that here. The cars and the keys are accepted as being restrained property.

[9]                 Mr Harborow, for the Commissioner, emphasises that what is sought here falls squarely within the ambit of s 35(c) as the Commissioner wants to know the nature and location of the defined restrained property.

[10]              I note that what Mr Harborow submits is the parallel procedure under s 107 of the Act, could also have been available. In Mr Harborow’s view, a s 107 “examination” by the Commissioner is primarily to assist the Commissioner in supporting a conclusion that certain property is tainted or there has been unlawful benefit. Usually, in Mr Harborow’s view, the s 107 application would occur later in the process than the s 35 order that has been granted here.

[11]              I also note that the order obtained here was not one for examination to be conducted by the registrar, but by the court. Mr Harborow’s view is that it was sought because that avenue—that is examination by the court—has borne considerable fruit in the past and it is generally, for that reason, preferred by the Commissioner.

Issue: How is the examination to be carried out?

[12]              On its face, the section specifically provides for any person—here Mr Tkachenko “… to be examined by the court or the registrar of the court …”. Counsel were unable to point to any cases as to the meaning of that provision.

[13]              I was a little uncertain as to how that examination should be carried out. The leading New Zealand text on the issue, Proceeds of Crime Law in New Zealand,1 does not resolve the issue as to the mechanics, or the procedure, for carrying out the order.

[14]              On one literal meaning of the provision, it is the court or the registrar who examines the person. The word court (with the registrar as the other alternative) perhaps suggests it is the Judge that carries out the examination.

[15]              I take the view that the provision must mean that the court or the registrar ensures the proper conduct of the examination, or “supervises” it. The examination itself and the relevant questions are to be put by counsel. That is the approach favoured by counsel here. That is the approach which I will adopt.

[16]              In my view, that is the only principled approach to interpreting s 35(c) and to ensuring that the purposes of the Act are furthered.

[17]I note the following reasons in support of this interpretation:

(a)First, it would be inappropriate for a Judge (or a registrar) to ask questions designed to elicit admissible evidence and to have sole responsibility for the examination. That would constitute a Judge or registrar involving themselves in the “fray”—that is the evidence gathering process. It would be to jettison the gown of a Judge, for the robe of an advocate.

(b)Second, it cannot have been envisaged that the Judge or registrar prepare and ask their own questions and embark on a fully fledged examination of a person. I only need to state that proposition for it to become self-evidently inappropriate and wrong in principle. Indeed, Mr Harborow said today it would be “ludicrous”. I agree.

1      Dr Heather McKenzie Proceeds of Crime Law in New Zealand (LexisNexis, Wellington, 2015).

(c)Third, if it is contemplated that the Judge or registrar would simply ask pre-prepared questions on behalf of counsel, that, too, in my view, is inappropriate. Judges are not usually cyphers through which all questions and cross-examination are funnelled.

[18]              In my view, for all those reasons, and in order to make sense of the provision, it must be that the evidence gathering process is controlled and supervised by the court. In that sense, it constitutes an “examination by the court”. The actual examination the questioning and its content and flow, is thereby “delegated” to properly prepared and briefed counsel.

[19]I am fortified in my view by two other statutory provisions in the Act:

(a)In s 35(e)(iii), in referring to an examination order relating to the Official Assignee, the words “…before the Official Assignee” (emphasis added) are used. In my view, that would have been a preferable word to use in s 35(c). The use of “before” in s 35(e)(iii) is presumably deliberate. However, in my view, it does not set up a different situation, in contradistinction to that envisaged in s 35(c). Rather, it points to how the examination in s 35(c) is to be carried out— that is, before the court or the registrar. That said, both counsel agreed that the phraseology of s 35(c), without the word “before”, is somewhat confusing, misleading, and indeed a little baffling.

(b)Section 166 of the Act which sets out more provisions regarding the admissibility of evidence given during an examination, in subsection (1), uses the words (emphasis added):

(a)    any person is examined before a court, or a registrar of a court, or the Official Assignee, pursuant to an order made under this Act; or

…

Again, the word “before” is used. It is plainly referring to examinations which include s 35(c) orders, and points strongly towards those examination being before the court or the registrar.

[20]              Therefore, use of the word “before” both in respect of the Official Assignee examination and in respect of s 166, in my view, convey what is meant by s 35(c)— that is an examination before a court or a registrar.

[21]On that basis I proceed today.

Role of Judge

[22]              On that interpretation, the Judge’s role is to provide supervision and control as is ordinarily the case when a witness gives evidence. That will involve, amongst other things:

(a)ensuring that the witness is properly and carefully appraised of the nature of the examination and the relevant statutory obligations;

(b)maintaining control and ensuring proper administration of the oath or affirmation;

(c)ensuring that only admissible and comprehensible questions are asked; and

(d)ensuring there is no element of oppression;

[23]              I note s 36 of the Act, which makes clear that it is not an excuse for a person to refuse to answer any question on the ground that to do so could, or would, tend to incriminate that person or subject them to any penalty or forfeiture. The Judge may need to be explain this.

[24]              Similarly, s 36(3) provides that the person must be given the reasonable opportunity to arrange for a lawyer to accompany the person. A Judge would need to confirm that opportunity had been provided.

[25]              Presumably, on the approach I take, the court has access to all its usual powers, even contempt.

Conclusion

[26]              I simply document this discussion with counsel and record my formal ruling. My conclusion makes plain that which is probably accepted as self-evident and obvious.

Becroft J