‘Sloppy’ police in $1m drug battle
A Taupo hunter who got off cannabis growing charges due to ‘‘sloppy’’ police work is fighting to keep $1 million in assets in a landmark case before the Supreme Court.
Karl Marwood was let off a charge of growing and supplying cannabis after a court ruled that a warrant used by police to search his house was ‘‘unlawfully’’ obtained.
Police are now going after Marwood’s assets under the Proceeds of Crimes Act, which allows them to apply to seize assets where there is evidence someone has benefited from ‘‘significant criminal activity’’ even if they have been discharged, or if charges were never laid.
Marwood’s lawyer, Mark Ryan, is arguing the evidence of criminal activity should be ruled inadmissable because the warrant used to search the court breached his rights and was already ruled ‘‘unlawful’’.
Marwood was arrested in July 2010 after a police officer swore an affidavit in support of an application for a search warrant of Marwood’s home.
The officer swore that a third party had received a phone call on his home phone. The man’s phone number was similar to that of the Taupo Police Station.
The caller asked whether he was speaking with ‘‘the police’’. The man replied ‘‘yes’’, mistakenly thinking that the caller was from the police.
The caller told the man: ‘‘I can’t tell you who I am ... Karl has marijuana plants growing on the back of the property.’’
The man then reported the phone call to police.
Police found that Marwood has previous convictions for growing and supplying cannabis, and used the phone conversation as the basis for a search warrant which was signed by a justice of the peace. When police searched the home on July 6, 2010 they found thousands of germinating seeds, growing plants, and nearly 3kg of dried cannabis.
Marwood, and another person were present at the time. When arrested both made ‘‘incriminating admissions’’ to police. Only Marwood was charged.
However, before Marwood’s case went to trial his lawyer successfully argued that the search warrant police used was unlawful.
Judge Josephine Bouchier ruled that the application for the warrant ‘‘was flawed because it established a suspicion of offending only’’, and police failed to inquire about the reliability of the information. I believe the case, if we are successful, will confirm that Courts in New Zealand have the jurisdiction to rule evidence inadmissible in civil proceedings on the grounds that the evidence was improperly obtained.
Although she found police had not acted in bad faith, their actions were ‘‘sloppy’’.
Superintendent Andy McGregor said the police officer who applied for the warrant was still employed by police.
‘‘Police are unable due to employment reasons outline any specifics of action taken,’’ he said.
McGregor added that when police received an adverse comment about their work from the course, the matter was dealt with as a performance issue.
Despite the criminal case being thrown out, police pursued a civil case under the Criminal Proceeds of Recovery Act 2009. The application alleged Marwood, another person and a trust each received $334,130 from the criminal activity. They also applied to seize Marwood’s home, together with two cars and money in two bank accounts.
In August 2014, a judge found that the evidence had already been excluded ‘‘for good reason’’ in the criminal case against Marwood, and to use it in the civil case breached Marwood’s rights.
Police appealed the decision in the Court of Appeal in December 2015, where the court overturned the High Court decision and ruled the evidence was able to be used in the civil case.
Ryan, who fought the case in the Supreme Court last month in attempt to overturn the appeal decision, said if successful the case would set a precedent in New Zealand law.
‘‘I believe the case, if we are successful, will confirm that Courts in New Zealand have the jurisdiction to rule evidence inadmissible in civil proceedings on the grounds that the evidence was improperly obtained.’’
The Supreme Court has not yet made a ruling on whether to overturn the appeal.
Marwood declined to comment.