Two Dunedin ACC claimants seeking damages over the wrongful
search of their homes should receive a ''substantial amount''
of compensation, their counsel told the High Court at Dunedin
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 police 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.
In December, the Attorney-general, through counsel Fergus
Sinclair, accepted the warrants were unlawful and contained
errors. Mr Sinclair said in his closing yesterday the Crown
agreed the plaintiffs were entitled to a declaration that the
Bill of Rights Act had been breached, but should not receive
any damages because police had not acted in ''bad faith''.
Counsel for Mr Van Essen and Mr Patterson, Michael Starling
said the searches constituted a serious breach of a
''fundamental right'' and therefore the plaintiffs should be
awarded a ''substantial amount of damages''.
''We have a right to not have our houses arbitrarily searched
by the police.''
Mr Starling also argued that police, by failing to follow
their own procedures, had acted in bad faith.
''There is no point in having policies and procedures in
place ... when you just ignore them.''
High Court Justice Christian Whata questioned whether this
qualified as bad faith, saying: ''Isn't that otherwise known
as gross recklessness, rather than bad faith?''Mr Starling
said the failure of police officers down the chain of command
to fulfil their duty and act as ''checks and balances'' was
worse than recklessness and constituted bad faith.
David Robinson, appearing for Mr Scott and Mr Gibbons, said
there was a ''high threshold'' for bad faith, which could not
be applied to the sequence of errors made by police in both
Bad faith implied a ''deliberate dereliction of duty'' or
''dishonesty'' which was not evident in either case, he said.
He also questioned the credibility of the plaintiffs and said
it was reasonable to conclude from the evidence gathered that
they had been working while receiving ACC payments.
He said Mr Scott and Mr Gibbons had immunity, by law, as
assistants to the police during the respective searches. Any
costs awarded should be taken on by the Attorney-general as
police were the lead agents in the search.
Junior counsel for the Attorney-general Peter Marshall said a
declaration the Bill of Rights Act had been breached was the
appropriate action for the court to take.
In the absence of there being any bad faith, there was no
need for damages as the ''breaches were relatively minor'',
Justice Whata reserved his decision.