High Court Justice Christian Whata yesterday highlighted an
''oddity'' linked to ACC's leading role in investigations
during which search warrants were issued for the homes of two
Dunedin ACC claimants.
The claimants, Bruce Van Essen and Jason Patterson, are suing
the Attorney-general and two private investigators, Peter
Gibbons and Graeme Scott, for damages relating to searches of
their homes in 2006, saying they were ''unlawful and
unreasonable''. The private investigators were engaged by ACC
to investigate possible fraud, but no charges were laid after
the search warrants were executed and both claimants have
since continued to receive ACC payments.
Last month, the Attorney-general, through counsel Fergus
Sinclair, accepted the warrants were unlawful and contained
But Mr Sinclair submitted the police were legally immune from
having to pay damages as they had acted in good faith, and it
was up to the plaintiffs to prove otherwise.
A hearing into the matters, which began last month, resumed
yesterday in the High Court at Dunedin. It is due to end
today after closing arguments from respective parties. The
case has thrown into sharp relief a series of process-related
concerns involving the police role in seeking ''third party''
search warrants for investigations on behalf of other Crown
agencies, in this case the ACC.
Also featuring prominently during yesterday's hearing were
questions about exactly who was at fault and who should have
immunity from damages if something went wrong.
David Robinson, appearing for Mr Scott and Mr Gibbons, said
they enjoyed, by law, immunity as assistants to the police
during the respective searches.
And they were also entitled to an indemnity for any costs
arising from this role. It had been the police that had
approved seeking the search warrants, sworn out the relevant
affidavits, and played the lead role during the searches and
in seizing evidence from the premises that were searched.
But Justice Whata said it was an ''oddity in this case'' that
it had actually been the ACC that had been ''driving'' the
And at that time Mr Robinson's clients had been undertaking
contract work for ACC.
To call them agents of the police was ''almost contrary'' to
the facts, he said.
He later emphasised he had not yet taken a final view on all
the relevant facts.
But the judge asked whether ''part of the problem'' was that
the police had ''ended up being agents of the ACC'', when
they should have been exercising an ''independent function''.
Mr Robinson said it was ''unfortunate'' ACC was not
represented at the hearing, and noted that ''a lot of the
difficulties'' had arisen from a source not represented by
any of the witnesses before the court.
A former police liaison officer said earlier that he had been
''apprehensive about being involved'' in an ACC-related
search warrant investigation in December 2006 after an
earlier ACC-related case, in September, and involving Mr Van
Essen, had led to an earlier complaint.
Detective Matthew Preece, then Constable Preece, had been
based in the CIB-linked police inquiry office.
Under cross-examination from Michael Starling, for the
plaintiffs, Det Preece said he had told his supervising
sergeant: ''I didn't want to do it.''
Det Preece would have preferred if ACC had laid a complaint
with police and police had then investigated and made their
own decision whether to prosecute.
But his sergeant had told him to take part.
Mr Starling asked about the process whereby a search warrant
involving Mr Patterson's home was obtained through a senior
official at the court.
Det Preece said he had not noticed at the time that the
official had not signed the search warrant, although he had
clearly agreed to issue it.
It would have been ''very, very unwise'' to proceed with
executing a search warrant if he had known the document had
not been signed.
But, in this case, he had not realised until later that a
signature was absent.