Raid on Red Devils 'unlawful' - judge
Police used "unlawful and unnecessary" force to chainsaw their way into the Red Devils' Nelson headquarters and obtained evidence improperly by breaching the defendants' rights, a judge has found.
Judge Chris Tuohy yesterday threw out charges against 28 guests found at a party at the gang's clubrooms during a raid in August 2010 under the Sale of Liquor Act.
A lawyer acting for some of the defendants likened the police expectations to the raid on MegaUpload founder Kim Dotcom's Auckland mansion.
In the Red Devils case, Judge Tuohy ruled, after a hearing in June, that evidence gained by police during the search was not admissible, due to the way it was gained.
"The whole of the police evidence on these minor charges was improperly obtained through a series of breaches of the defendants' rights, some of which were significant infringements," he said in his written decision.
"In those circumstances, a credible system of justice demands the exclusion of evidence, and I rule accordingly."
Red Devils members still face charges of managing an illegal bar at the clubrooms as a result of the raid.
The former Nelson Bays area commander, Inspector Brian McGurk, was the police officer in charge of the raid.
Mr McGurk said yesterday police acknowledged Judge Tuohy's decision but could not comment further, as more serious charges related to the matter were before the court.
Fifty police, including officers from Christchurch and members of the armed offenders squad, were involved in the raid on the Natalie St clubrooms in August 2010.
Police cut down sections of a high wooden fence with a chainsaw to gain access to the property - about the same time, other officers entered through the main gate.
They searched the property, locating several items indicating that liquor was being sold on the premises. A small amount of drugs was also found.
In his decision, Judge Tuohy found that the search was unreasonable in several ways, including the way police entered the property and the fact that the guests were detained "in a yard in the cold in the early hours of the morning under armed guard".
Guests also had cash taken from them. Judge Tuohy said there was no good reason to believe it was connected with the sale of liquor.
He also ruled that the personal searches of the defendants were unreasonable.
Judge Tuohy said the raid was carried out by police "in good faith", and was probably the only option for police to determine if the headquarters was being used for the illegal sale of liquor.
"However, it could have been carried out effectively without any breach of the defendants' rights."
He said he had no doubt that the manner in which police raided the property was chosen to protect police officers. However, there was no evidence that it was necessary to avoid such danger.
A police witness said there was a "mention" of a possible firearm at the property, but no firearms were found.
Police said they chose to enter the property by chainsaw to overcome resistance and to ensure evidence was not destroyed, but "the urgency factor does not really apply to the circumstances of this case", Judge Tuohy said.
He said there was no resistance from the occupants, and a short delay would not have made any real difference to the preservation of evidence, as the task of destroying bars, tills and liquor bottles would be more time-consuming than getting rid of drugs.
Lawyer Steven Rollo, who represented a number of the defendants, said yesterday outside court the judge's decision showed police had gone to the Red Devils' headquarters with a set of expectations that were not met.
He said their actions were the same reason why police were having a hard time over the raid on alleged internet pirater Dotcom's Auckland mansion, due to the over-the-top manner in which they executed their duty.
Mr Rollo said the chainsawing of the fence to gain entry, the use of armed police, and the fact that some people had minor amounts of cash taken from them and were made to wait for three hours outside on a winter night on minor charges showed police had not acted reasonably.
Those who had their charges dismissed were: Mark Henry Allport, Allan Peter Begg, Desmond Robert Black, Geoffrey Brittain, David Paul Kenneth Bruning, Danielle Laree Couper, Clyde Anthony Cowley, Jordan John Daly, Matthew Donaldson, Odile Maria Gibbs, Monique Elizabeth Gifford, Grant Roy Hayward, Nathan Waka Paul Hemana, Karl Phillip Holloway, Anna Heloise Horgan, Douglas Arthur Jay, Hayley Joanne Kirkwood, Robert Gerald Meredith, Peter John O'Connor, Gregory Jon Page, Dwaine Riley, Glyn Patrick Rutledge, Renee Frances Parata Salter, Christopher Ian Schaab, Philip Ernest Shubert, Allison Louise Stevenson, Peter Richard Tasker and Donovan Bruce Wood.
Red Devils members were arrested in a separate series of raids in March last year, and they face a range of charges, including drug and firearm offences.
An application by their lawyers to have those charges thrown out is still before the High Court.
- © Fairfax NZ News
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