Cop’s trick rules out conviction
The High Court has quashed the conviction of a pizza hoaxer caught out by a police trick.
First the Timaru District Court and now the High Court criticised the unlawful behaviour of Sergeant Greg Sutherland, of Timaru, in obtaining a confession by committing an offence.
Despite district court Judge Joanna Maze finding last November that Sutherland’s action in luring unemployed Timaru man Richard Arthur James Crawford, 21, into admitting his offending with the promise of free movie tickets, was unlawful, she convicted Crawford.
Crawford initially confessed to the police that he anonymously ordered Domino’s pizzas without paying, which were sent to aformer neighbour who had already been upset by fictitious and anonymous orders directed to her address.
Sutherland identified Crawford after sending a text message saying he had won movie passes.
This is the text Sutherland sent: ‘‘Thanks for your continued support. You are the winner of two Movie Max 5 session passes to be used by 12/6/17. Text your name and address for the passes to be posted to you.’’
When Crawford responded with his name and address, Sutherland went to his home and inquired about the fictitious pizza orders but Crawford denied any knowledge of such an order.
When the sergeant said he was ‘‘the Movie Max guy’’, Crawford slapped his head and said ‘‘I’m so dumb’’, accompanied Sutherland to the police station and made a full confession.
Convicting Crawford at a judgealone trial, Judge Maze said that despite Sutherland’s unlawful behaviour, given he identified himself as the author of the text message before Crawford confessed his guilt, she admitted the statement and found Crawford guilty ‘‘by a very narrow margin’’.
The successful appeal, heard by High Court Justice Nicholas Davidson, of Christchurch, centred on the admissibility of the evidence obtained by Sutherland by what Justice Davidson described as ‘‘a simple but effective investigatory trick’’.
In his judgment, Justice Davidson said the text to Crawford probably constituted an offence in itself because it involved a fictitious representation.
The issue, said the judge, was whether the confession the police elicited from Crawford was admissible.
Justice Davidson said Judge Maze had no difficulty finding Crawford’s confession was improperly obtained, saying that on his own evidence Sutherland had confessed to using ‘‘a telecommunications device knowingly giving a false message’’. But she declined to exclude it.
Crawford’s lawyer, Tim Jackson, argued on appeal that Judge Maze focused unduly on the level of deception or falsehood, and not enough on the fact the police, in getting the confession, committed the very offence for which Crawford was being investigated.
Jackson argued that the impropriety by the police was calculated and Crawford was ‘‘ambushed’’ in his own home.
A question for Justice Davidson was whether, on the facts, the exclusion of the evidence of Crawford’s confession was proportionate to the impropriety in obtaining it. The judge said there was no urgency and no danger to anyone, although the complainant wanted no more calls. He said the police action required some thought, and the words of the text were carefully considered for their desired effect.
He said it was ‘‘deceptive, simple and effective, and appealed to the gullibility and greed’’ of Crawford. ‘‘While this is offending of a low order in the broad scheme of criminal offending, as a matter of principle, a credible and effective system of justice cannot allow the police in their investigation of a criminal offence to engage in that or other unlawful behaviour, except where that is a necessary part of their work, for example, undercover.’’
Justice Davidson allowed Crawford’s appeal and set aside the conviction.