Legal doubt on immunity and on who was at fault

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 errors.

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 investigation.

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.

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