An Invercargill man should find out on Monday whether he must
return CDs given to him by the police, which contained
information he was not entitled to have.
Accountant David Christopher Payne (42) should also find out
then whether he must surrender his laptop and other computer
equipment so a forensic examiner can see whether he still has
copies of the information.
The Crown is seeking court orders for the return of the CDs
and the examination of his computer equipment. After a
two-hour hearing in the Invercargill District Court yesterday
afternoon, Judge Kevin Phillips reserved his decision and
said he would try to give it on Monday. Payne had had the
information for ''quite some time'' and there was no need for
him to make an immediate decision, Judge Phillips said.
Payne is one of seven Queenstown and Southland men facing
drugs charges as a result of last year's Operation Canary
police investigation. When they requested Operation Canary
information under the evidence discovery process, six
received paper files but Payne was given computer discs,
Sarah McKenzie, appearing for the Crown, said yesterday.
There were hundreds of files, many of which had sections
blacked out to keep information such as the names of police
informants confidential. But Payne discovered that if he
copied a censored page into a word document, he could
backtrack through the police editing and read the information
which had been blacked out, Ms McKenzie said.
It was accepted Payne had not committed any criminal offence.
He was asked to return the disks but said he would not unless
there was a court order, she said. An application for a court
order was lodged on February 8. However, an amended order was
filed on Thursday when it became clear Payne had talked to
The Southland Times about how he had been able to read the
censored information, Ms McKenzie said.
The article said the police had ''blundered'' by handing over
censored documents which could be easily restored. Although
he was not named in the article, the Crown was satisfied it
was him because he was the only person who had been given
discs, Ms McKenzie said. The amended order sought the
examination of Payne's computers and hard drive.
''The Crown is aware he has made copies of the discs. We
believe he may have provided others with the discs he has
created. He may have provided them to his co-accused, but we
don't know that.''
The amended application also sought the return of any
Operation Canary information held by the co-accused and
Fairfax Newspapers, publishers of The Southland Times. The
Crown was satisfied all paper files held by the co-accused
had been returned to the police and no copies had been kept,
Ms McKenzie said. Fairfax had indicated it would return any
information it held if the court order was granted. For
Payne, counsel David Slater said, while Payne accepted he had
information police never intended him to have, he (Mr Slater)
did not believe the district court had any legislative basis
from which to order the return of the discs or an examination
of his client's computer.
''The remedy lies under the Evidence Act. It is that my
client cannot use any of the information he has been given
... mistakenly or erroneously in any court proceedings.''
Judge Phillips, Ms McKenzie and Mr Slater all agreed a High
Court judge would have the power to make such orders. Ms
McKenzie said a High Court judge would be in Invercargill
next week and the Crown had already made inquiries about an
urgent hearing should Judge Phillips decide he could not rule
on the application. Judge Phillips said while he might not
have the legislative power to rule on the application, he had
''inherent powers'' under the District Court Act which
allowed him to make any orders pertaining to cases before the
Ms McKenzie said she believed Judge Phillips had legislative
powers under three sections of the Evidence Act which allowed
judges to make ''the necessary directions'' to protect
confidential or privileged information connected with a case.