Man walks after warrant botch-up
No-one is taking responsibility for a man with sexual images of children walking free from court after evidence against him was ruled “unlawful and unreasonable”.
The Auckland man, who has name suppression, was discharged at the Manukau District Court on 18 counts of child pornography and bestiality this month after evidence collected against him was ruled inadmissible by the Court of Appeal because police applied for, and were granted, a search warrant under the wrong act.
Police started investigating the Bucklands Beach man in August 2007 after Interpol in Vienna alerted them that New Zealanders had downloaded photos and videos containing child pornography. The man was among them.
On October 2, 2007, police were granted a warrant under the Summary Proceedings Act to search the premises of internet service provider Ihug within a month. Vodafone had bought the company and responded to the warrant on November 27, 2007 - outside the allowed time period - by providing police with the man's ISP customer account details.
Based on that information, police then applied for a second search warrant under the Films, Videos and Classification Act, which they used to search the man's Bucklands Beach home on April 16, 2008. They seized a computer and found a number of objectionable images and videos on the computer and related hard drives. However, none of the images related to the information given by Interpol.
Despite finding sexual images of children, the warrants were ruled “unlawful and unreasonable” on July 4 by the Court of Appeal as the first warrant was obtained under the wrong act, and the second was based on information recovered under the first warrant.
It's not the first time police have botched cases before the courts. In 2011, evidence gathered in the anti-terror raids in the Ureweras was ruled “illegal” after police surveillance was deemed unlawful. And in June, a High Court judge ruled search warrants used to seize property from Megaupload founder Kim Dotcom's Coatesville property were “invalid”.
Police Association president Greg O'Connor said that when police were searching for evidence, they “usually” applied for a warrant under the Summary Proceedings Act.
“There are some technical parts of the law where we have to use the other acts and clearly this is one of them. The most important thing about this is to learn from our mistakes.”
O'Connor said communication between police about “remarkable cases” was good in that they featured in a weekly staff magazine - and he was “sure” this was a case which would be discussed.
Police issue about 40,000 search warrants each year that are authorised by judicial officers. The vast majority remain unchallenged.
“On some occasions the warrants are challenged and the courts find the warrants invalid for reasons of form or substance,” covert operations manager, Detective Inspector Paul Berry, said. “In some of these cases the decisions are reached when the judiciary interprets the law in a way that was unanticipated by police. On other occasions we get it wrong."
Berry said the Urewera, Dotcom and the child pornography cases were “different” and “do not reflect systemic failure by police”.
However, Police Minister Anne Tolley - who deemed it inappropriate to comment on court decisions - said it was “wrong to talk about mistakes” and effectively blamed judicial officers.
“Police put the best evidence forward and warrants must first be signed off by a district court judge,” she said.
Chief District Court Judge Jan Doogue would not comment. Neither would the Crown Law Office.
Opposition police spokesman Kris Faafoi said frontline police resources were being increasingly stretched due to the National Government's push to make savings with the police budget.
- © Fairfax NZ News
Should we raise the retirement age?