Unlawful search sinks drugs case
A chance sighting of a bong in the back of a sailor’s car sparked a sprawling investigation into drug offending within the military. But early cellphone searches by investigators were found to be unlawful fishing expeditions, and torpedoed more than two d
It was a mild August morning in 2017 when two members of the military police strolling Auckland’s Devonport Naval Base saw something suspicious in the back of a sailor’s car.
They confronted and questioned the car’s owner. The man, who has name suppression, admitted the item spotted by Warrant Officer Master at Arms Richard Mathers was a bong and that there was cannabis in his car.
The military police successfully sought permission from his commanding officer, Lieutenant Commander Damien Gibbs, to search him, his car and his cabin.
Along with the bong and ‘‘plant-like material believed to be cannabis’’ they found a knife, grinder and an empty box of synthetic urine, used to pass drug tests. They also came into possession of his cellphone, according to Court Martial Appeal Court documents.
What followed was an email exchange between Leading Military Policeman Allen Coates and Gibbs, which a judge would later describe as ‘‘troubling’’.
Coates told Gibbs that investigators were looking for evidence relating to drug offences and sought permission to send the sailor’s phone to an electronic crime laboratory for analysis.
‘‘I have good reason to believe ( the sailor) has been using his mobile phone to contact his friends regarding the purchasing of drugs and drug paraphernalia,’’ he wrote. ‘‘We have evidence that proves that he obtains cannabis from colleagues and in our experience it is common place for drug users to use their cellphones to communicate purchases.’’
Exactly what evidence the military policeman had to prove the sailor had obtained cannabis from colleagues was unspecified. ‘‘There may also be intelligence that could assist in the identification of other offenders.’’
Gibbs replied briefly by email, granting permission, but did not interrogate Coates’ suggestion the sailor was getting drugs from his comrades.
The phone was duly sent to an electronic crime lab at the Trentham Military Camp in Upper Hutt for analysis.
Evidence from that search was the early catalyst for Operation Waikato, an investigation into the procurement, supply and use of illegal drugs among military personnel, particularly members of the Royal New Zealand Navy.
Among the people charged was another sailor, known as A in court judgments, who also has name suppression.
He faced seven charges under the Armed Forces Discipline Act, based solely on evidence gleaned from the first sailor’s cellphone, relating to offering to supply a class B controlled drug.
His case came before Judge Duncan Harvey on November 5, 2018, but did not progress to be tried at court martial as an unimpressed Judge Harvey ruled the evidence inadmissible.
He was troubled by Leading Military Policeman Coates’ comments when asking for permission to search the sailor’s cellphone and the lack of further questioning by Lieutenant Commander Gibbs following Coates’ failure to expound on the basis for his claims.
The commanding officer was confronted with reasonable evidence to suggest the sailor had committed two Misuse of Drugs
Act offences, Judge Harvey said, but there was nothing else to give him grounds to suspect he or anyone else had committed any other offence.
Judge Harvey deemed the search a ‘‘fishing expedition’’ and both unlawful and unreasonable.
The Crown unsuccessfully appealed to the
Court Martial Appeal Court. Justice Peter Churchman and Judges John Billington and David McGregor heard the appeal on February 20, 2019.
‘‘We agree with the Judge that the only reason for this search was to engage in a fishing expedition,’’ the judgment said. ‘‘The search was unlawful, and the evidence derived from it improperly obtained.’’
Last week, on September 29, just over three years after the sighting of the bong, another sailor appeared at a pre- trial hearing, this time before Chief Judge of the Court Martial of New Zealand Kevin Riordan.
Able Marine Technician (Propulsion) Odin Robinson was among those identified following the unlawful search of the sailor’s phone.
He faced 19 charges related to the use, supply, procurement and attempted procurement of the class B controlled drug MDMA, and one of careless driving.
Military police seized two of Robinson’s cellphones on November 27, 2017, but it took nearly three years to come to court.
Judge Riordan said in his written judgment that while there might be good reasons for parts of that delay, such as Covid-19, it seemed ‘‘an extraordinary length of time for this matter to be hanging over the accused’’.
Prosecutor Major Rob Goguel accepted the evidence from Robinson’s phones was ‘‘ inappropriately obtained’’ because it was tainted by the earlier unlawful search of the sailor’s phone but argued that excluding the evidence would be disproportionate to the level of impropriety.
Robinson’s lawyer Melinda Mason, who also represented the first sailor in his successful appeal, argued the search of Robinson’s phones was unlawful and that the evidence was irrecoverably tainted because it derived from a search already ruled improper and unlawful.
Again at issue was a request from the military police to a commanding officer seeking authority to search Robinson’s cellphones, this time on frigate HMNZS Te Mana on which he served.
Judge Riordan described the application as a ‘‘ sparse document’’ stating Robinson had used cannabis and possibly supplied LSD, a class A drug carrying much stiffer penalties than cannabis. The application included evidence of text conversations, including a mess
age from a third party to the first sailor stating he would need to approach Robinson to get tabs of ‘‘ acid’’ (LSD).
‘‘Bro u have to go through Odin for the gear bro,’’ the text message said.
However, an exchange between the sailor and Robinson cast doubt on the reliability of the third party’s claim. Robinson denied in text messages he was a supplier of ‘‘sid’’ (LSD) or ‘‘budz’’ (cannabis) before the sailor said the third party was drunk and ‘‘ having a yarn’’.
Judge Riordan found the evidence given to the commanding officer was the ‘‘most slender justification’’ for a search under the Armed Forces Discipline Act he had seen. The application by the military police to the top officer was based on unstable foundations, the judge said.
He found that, if anything, the search was even less justifiable than that undertaken on the sailor’s phone
If the Crown’s case was to rely entirely on tainted evidence, greater care was required early in the investigation, Judge Riordan said.
He deemed the evidence from Robinson’s phones inadmissible and the case again did not progress to trial at court-martial.
Robinson, 27, spent about twoand- a- half years on paid leave from the Navy. Speaking to the Sunday Star-Times hemaintained his innocence and said he wanted to use his story to help others. ‘‘It’s been a journey.’’ While suspended, Robinson studied and became a personal trainer before starting his own business in that field. He competed in bodybuilding competitions and Brazilian Jiu Jitsu tournaments, was an extra in the Netflix series Deadlands and started a charity, Unite Aotearoa,
to help feed and clothe the less fortunate and homeless.
Robinson said there should be consequences for those involved in the botched searches but was undecided on whether he would seek compensation.
‘‘I think someone needs to be held accountable.’’
Robinson is back on duty but no longer serves on the frigate Te Mana, instead working on shore at Devonport Naval Base.
On Thursday, all of his charges were officially withdrawn and the Crown confirmed it would not appeal the decision.
An NZ Defence Force spokeswoman would not immediately reveal how much was spent on Operation Waikato, instead saying the question would need to be treated as an Official Information Act (OIA) request, which allows 20 working days to respond.
Operation Waikato does not appear to have been wholly unsuccessful.
It led to guilty findings and administrative action for a number of personnel, the spokeswoman said, though details of these were again not immediately forthcoming.
Following the decision from the Court Martial Appeal Court regarding Sailor A’s case, the defence force ‘‘ adapted’’ its search procedures, the spokeswoman said.
The big changes were a time limit on electronic device searches (limiting how far back investigators could look) and requiring legal advice for such searches, she said.
No members of the military police were disciplined or sanctioned as a result of their actions during Operation Waikato, though they did receive further training.
The spokeswoman repeatedly emphasised that the courts found the searches were not deliberately improper or conducted in bad faith.
As such, the defence force was considering neither compensation nor apologies to those involved, she said.
‘‘The only reason for this search was to engage in a fishing expedition.’’ Court Martial Appeal Court judgment