Damages for illegal police search denied
The owners of a Motueka storage facility at the centre of a fake police search have ‘‘failed as much as, if not more than, they have succeeded’’ in a claim over damages, a judge has said.
Two plaintiffs – the owner of the facility and his company – brought a High Court claim against the attorney-general following an illegal search at a storage unit which was part of a facility owned and operated by them.
It related to a botched undercover operation by Nelson police against the Red Devils gang, which began in 2009, and involved an undercover officer renting a unit at the storage facility, as police thought the owner had gang connections.
In order to bolster the credibility of the undercover officer, police executed a ‘‘search warrant’’ of the unit, which contained cannabisgrowing equipment, laptop computers that were made to look stolen, and other equipment that supported the officer’s back story.
The ‘‘search’’ led to the fake arrest of the officer and false charges being laid, all of which the courts ruled as serious misconduct by the police.
Charges against people connected to the gang had to be dropped, stays of prosecution were granted, and eventually the case against the Red Devils was thrown out entirely.
The owner of the storage unit, whose identity is protected, sued over issues of deceit and trespass and for alleged breaches of the Bill of Rights Act, seeking thousands of dollars in damages related to six courses of action arising from the illegal search.
However, in a written judgment given by High Court Justice Rebecca Ellis on May 8, the owner was awarded just $131.28 compensation.
He had asked for ‘‘economic loss’’ damages of $1000, but the judge did not find the loss amounted to that.
‘‘He said that what he had lost was the money he would have been paid for the three hours’ work which he was unable to do due to being deceitfully called away,’’ Judge Ellis said.
‘‘His evidence was that he was paid $35 per hour for this work, and that he should also be reimbursed for the petrol used in travelling back to the units . . . There was no challenge to that evidence, and it follows that he is entitled to compensation in the amount of $131.28.’’
However, Justice Ellis did not find that the owner reached the threshold for requiring ‘‘exemplary damages’’ of $20,000, as it had not been established that the police intended to cause him economic harm.
Police, while mistaken in carrying out a fake search warrant, acted in good faith, believing they were justified, and the deception had not been intended to cause loss to the plaintiff, the judge said.
Police had expected him to be on site when they arrived to conduct the search, and there was no evidence to suggest police knew that in calling him back to open the unit, it would be anything more than a ‘‘minor and passing inconvenience’’.
The owner sought $7000 for being ‘‘arbitrarily detained’’, given the search was fake, but Justice Ellis said there was no real ‘‘detention’’, as no suggestion was made that had he not stayed, there would be any penalty.
The owner made a $29,000 claim for trespass, but Justice Ellis said that because the unit had been hired by a police officer who had given permission for the ‘‘search’’, the police had right of entry. A $27,000 claim over an ‘‘unreasonable search’’ under the Bill of Rights Act was also dismissed.
As to costs, Justice Ellis said it seemed that the plaintiffs ‘‘have failed as much as, if not more than, they have succeeded’’, and costs should lie where they fall. If there was a disagreement with that, memoranda could be filed within 10 working days.