Commissioner of Police v O'Sullivan

[2025] NZHC 2882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001777

[2025] NZHC 2882

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

MARTIN JOHN PIPER

First Respondent

TROY KAKAU
Second Respondent

SHANNON HONETUHI RAYNER
Third Respondent

AND

LISA MAY O’SULLIVAN

First Interested Party

TRADIN POST LTD
Second Interested Party

ANZ BANK NEW ZEALAND LTD

Third Interested Party

Hearing:

25 September 2025

Counsel:

R W Jensen and L J Clay for Applicant

N T C Batts and A L McMillan for First Respondent and First Interested Party

Judgment:

2 October 2025

JUDGMENT OF BREWER J

This judgment was delivered by me on 2 October 2025 at 9.30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v PIPER [2025] NZHC 2882 [2 October 2025]

[1]    The applicant (the Commissioner) has applied for civil forfeiture orders. A two-day hearing is scheduled for November 2025.

[2]    An issue has arisen as to how one of the Commissioner’s proposed witnesses, Mr Kakau, may give his evidence. The Commissioner wants Mr Kakau to give evidence at the trial. The first respondent and the first interested party argue that the law does not permit that unless Mr Kakau is examined as to his evidence before the start of the trial.

[3]    Mr Kakau was examined compulsorily by the Commissioner pursuant to an examination order made pursuant to s 107 of the Criminal Proceeds (Recovery) Act 2009 (the Act). It is an offence, prescribed by s 152 of the Act, for a person against whom an examination order was made to make a statement pursuant to the order which the person knows is false or misleading in a material particular.

[4]    The Commissioner’s application for civil forfeiture orders is by way of originating application. Rule 19.13 of the High Court Rules 2016 (the Rules) provides that in a proceeding commenced by originating application, evidence may be taken orally on oath if the court, on application before or at the hearing, so directs. However, usually1 the evidence at the hearing of an originating application is by affidavit.2 Deponents can be produced for cross-examination.3

[5]    In this case, the Commissioner wanted Mr Kakau to confirm the truth and accuracy of the transcript of his compulsory examination by affidavit. Mr Kakau has refused. Accordingly, the Commissioner has applied pursuant to r 9.75 for an order directing Mr Kakau to appear and be examined on oath. Rule 9.75 provides:

(1)If a person having information relevant to a proceeding or an interlocutory application refuses to make an affidavit as to that information, a party may apply for an order directing the person to appear and be examined on oath before the court, or any person the court appoints, as to that information.

1      High Court Rules 2016, rr 7.20, 7.25 and 19.10.

2      Stills v McCormack [2023] NZHC 702 at [72].

3      Rule 19.14.

(2)The court may—

(a)make any orders the court thinks just for the attendance of that person before the court, or before the person named in the order, for the purpose of being examined, and for the production of any documents specified in the order; and

(b)impose any terms the court thinks just, as to the examination and the costs of and incidental to the application and examination.

[6]    Mr Piper, the first respondent, and Ms O’Sullivan, the first interested party, consent to the application but on the condition that the examination take place prior to the hearing of the substantive application. It is submitted on their behalf that r 9.75 does not permit an examination to take place during the hearing itself.

[7]    The first respondent and the first interested party rely on Andrew J’s decision in this Court in Commissioner of Police v Doyle.4 In that case, the Commissioner, who had a hearsay statement from a witness, proposed to avoid the hearsay provisions of the Evidence Act 2006 by calling the witness so that he could be cross-examined. Justice Andrew ruled this could not be done, noting “the rules do not permit simply making them available for cross-examination in circumstances where they have not filed affidavits themselves and where r 9.75 is not invoked”.5

[8]However, Andrew J later said:6

It may be that, in principle, r 9.75 could be available to the Commissioner. However, the rule only applies where there has been a refusal to make an affidavit and there would of course need to be an evidential basis for the Court to come to that conclusion.

[9]    Mr Batts for the first respondent and the first interested party submits that the Commissioner has an obligation to file only admissible evidence in support of the substantive application in accordance with r 9.76. This is the rule that prescribes the form and contents of affidavits.7

4      Commissioner of Police v Doyle [2023] NZHC 2911.

5 At [19].

6 At [22].

7      Mr Batts also relies on the High Court decision in Jones v New Zealand Bloodstock Finance Leasing Ltd [2023] NZHC 572. I do not consider this case is pertinent because it addresses requiring a reluctant deponent to appear at an interlocutory hearing to set aside a bankruptcy notice.

Discussion

[10]I think this matter is quite straightforward.

[11]   First, r 9.75 confers a broad discretion. There is no reason to limit the discretion so that the examination of a person who refuses to make an affidavit cannot take place at the substantive hearing if the interests of justice are in favour of that course.

[12]   One reason why the interests of justice might require the examination to take place before the substantive hearing is if the reluctant deponent has not disclosed what their evidence will be. The opposing party is entitled to know in advance, with reasonable assurance, the evidence to which it will have to respond. In this case, that is not an issue since the transcript of Mr Kakau’s statement, taken under compulsion and the truthfulness for which he is criminally responsible, has been disclosed.

[13]   The Commissioner, having invoked r 9.75, intends to call Mr Kakau as a witness and ask him to confirm under oath the truthfulness of the account he gave in the compulsory examination. Mr Kakau will then be available for cross-examination. There is nothing against the interests of justice in this proposed procedure.

[14]   In any event, and contrary to the submissions I heard, the originating application procedure does not limit evidence to witnesses who have given affidavits. Rule 19.13 makes this clear. In the circumstances I have set out, an application by the Commissioner under r 19.13 for Mr Kakau’s evidence to be taken orally on oath at the hearing would likely be granted.

Decision

[15]The Commissioner’s application is granted.

Brewer J

Solicitors:

Pollett Legal Ltd (Tauranga) for Applicant

Molloy Batts (Auckland) for First Respondent and First Interested Party