Appeal bid after bungle resulted in time in jail

A South Otago man spent nearly nine months in prison because of a police botch-up. Now he wants to appeal his convictions.

Police raided the 40-year-old’s home in June last year after the armed offenders squad (AOS) was called in, but the Independent Police Conduct Authority (IPCA) found it was “based on a significant misunderstanding” of the Search and Surveillance Act.

Such was the seriousness of the calamity, it resulted in police issuing a practice note nationwide for staff to better understand the law.

The man whose house was unlawfully searched — referred to in documents as “Mr X” — was sentenced to 17 months’ jail at the end of last year.

He told the Otago Daily Times it was a “big relief” to finally be vindicated.

The police originally said the visit to the man’s home was for the execution of a “preplanned” search warrant.

“I’m wanting to get the truth out there,” he said.

“People need to really be aware of the police and their tactics.”

Serving his first jail term was “a big learning curve”, the man said, and as soon as he got the IPCA decision he sought legal advice about a potential appeal.

Police arrived at his Kaitangata home on June 21 last year to arrest him over violence allegedly committed earlier that week.

Mr X did not come to the door when officers knocked, nor when one called through a window that he was under arrest.

When he appeared at the front door with an axe handle, police retreated and called for back-up in the form of the AOS.

Mr X continued to sit tight and armed officers stormed the property, arresting him before the property was searched.

Police were invited by the IPCA to review their actions.

They decided they did nothing wrong, and that their actions were justified under the Search and Surveillance Act.

The authority disagreed.

If police have reasonable grounds to believe a person will leave an address to avoid arrest or may destroy, conceal, alter or damage evidence, the Act allows them immediate entry.

That was not the case here, the authority ruled.

Mr X, a former law student, told the ODT he asked to see a search warrant as soon as police arrived.

“When they said they didn’t need one, I knew there was something fishy going on,” he said.

He was eventually convicted of two charges of assault, possessing an offensive weapon, threatening language and resisting police — part of a plea deal he said he took to avoid a potentially harsher sentence following trial.

University of Otago law lecturer Dr Anna High said improperly obtained evidence through an unlawful search was not automatically rejected by the court.

It required “a balancing exercise” by a judge who would consider all factors including the seriousness of the offending, the importance of the evidence and flagrancy of the breach of privacy.

Without knowing exactly what was seized and how it was used in court, Dr High said it was difficult to assess the prospects of Mr X’s appeal.

 

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