Police have admitted there were things they should have done
better to ensure the validity of search warrants used to
search the homes of two Dunedin ACC claimants.
The claimants Bruce Van Essen and Jason Patterson are suing
the Attorney-general and two private investigators for
damages relating to searches of their homes in 2006, saying
they were ''unlawful and unreasonable''.
Mr Van Essen and Mr Patterson also allege police were in
breach of the Bill of Rights Act when they searched their
homes and that they acted in an improper manner and
maliciously towards them.
The searches resulted from investigations by the private
investigators, who were engaged by ACC to inquire into the
possibility both men were fraudulently receiving income
without telling ACC.
Earlier this week, the Attorney-general, through counsel
Fergus Sinclair, accepted the warrants were unlawful and
contained errors.
Three of four sworn police officers to give evidence did so
on the third day of a civil trial before Justice Christian
Whata in the High Court at Dunedin yesterday.
Mr Sinclair started the day by ending his opening submissions
with a reminder that it was accepted the warrants were
unlawful and the central issue now was whether police were
legally immune from having to pay damages, which, he
submitted, they would be if they had acted in good faith.
The Crown believed they had, and it was up to the plaintiffs
to prove otherwise, he said.
The first witness was Detective Senior Sergeant Kallum
Croudis, the officer in charge of the Dunedin CIB, including
the inquiries team, members of which prepared the affidavits
for the search warrants based on information provided to ACC
from the private detectives Peter Gibbons, in Mr Van Essen's
case, and Graeme Scott, in Mr Patterson's case.
Det Snr Sgt Croudis said he had absolute confidence in
everything he and his staff had done.
However, he admitted he had erred in making Constable Andrew
Henderson the liaison for ACC investigators seeking to obtain
search warrants through the police, when he knew Mr Gibbons,
a former Dunedin police detective and the ACC's main
contracted fraud investigator in Dunedin, was Const
Henderson's father-in-law.
He said he had made the decision because he was confident
both men were professional and experienced, and that any
conflict could be managed by two ranks of command and
supervision above Const Henderson.
''In hindsight, I was probably wrong.''
Under cross-examination from counsel for Mr Van Essen,
Michael Starling, who is also representing Mr Patterson, Det
Snr Sgt Croudis explained he received search warrant
applications from outside agencies with enforcement powers
first, including the affidavits they had drafted.
He assessed and prioritised them, sometimes providing advice
or remedial instruction, and then forwarded the documents to
the inquiries team.
Mr Starling asked him if he thought, then, that he had been
negligent in forwarding the application relating to the
search warrant for Mr Van Essen's home without a single
question, even though the draft affidavit supplied did not
identify the offence Mr Van Essen was alleged to have
committed.
''... your dealing with the draft document shows at the very
least negligence on your part, and shows bad faith on your
part'', Mr Starling said.
''You passed on a document when it was your job to assess and
prioritise it. The document did not disclose an offence, but
because it came from a former colleague you passed it along
the line.''
Det Snr Sgt Croudis said he ''totally refuted'' the
suggestion.
On the face of it the material in the affidavit indicated a
crime had been done, so he passed it on.
It was the constable's responsibility make sure the grounds
for a search were bona fide and the document was completed to
the standard required by the court.
''I do not accept at any stage there was bad faith, or
negligence.''
Sergeant Sheldon Kindley, the officer in charge of the
inquiries team, accepted in his brief of evidence that he
should have reviewed the affidavits prepared by his staff for
the search warrants himself before they were presented to the
court.
He had not reviewed the Van Essen affidavit because he felt
he did not have the same knowledge of the facts and their
background as Const Henderson.
He could not recollect if he had reviewed the Patterson
affidavit, which was prepared by Const Matt Preece.
However, he denied, on cross-examination from Mr Starling,
that it was his responsibility to check search warrants were
signed by the court before they were executed. That was the
responsibility of the officer who had sworn the affidavit,
and it would be impractical if all warrants had to be checked
by a senior officer before execution.
The search warrant for the search on Mr Patterson's home was
later found not to have been signed by the court registrar.
Const Henderson said he had not acknowledged his relationship
with Mr Gibbons in swearing the affidavit for the Van Essen
search because he had not thought it relevant.
He was relying on Mr Gibbons' experience and professionalism
as a former police officer, not their personal relationship.
The cross-examination of Const Henderson will continue today.
