Duo accused of fraud challenge search warrant
Two men accused of fraud in relation to the sale of building materials complained to police about people gathering outside their Hutt Valley home, but ended up being arrested themselves.
They have challenged the way a search warrant was issued on an oral application on the day they intended leaving the Wellington area.
At the High Court in Wellington on Monday the lawyer for the two men, whose names are suppressed, said that on March 11 they had rung police about some kind of protest or vigilante action taking place outside their home.
The men’s lawyer, Mike Lennard, said when police arrived they arrested the two men and demanded the keys to the property. Then police made an oral application to an “issuing officer” for a search warrant. An issuing officer can be a judge, justice of the peace, community magistrate or a court registrar or deputy registrar.
Earlier that day three people had complained to police about not receiving building materials after making at least part-payment. The two men who were shareholders in the company had packed up their belongings and were about to leave the house. They say items that had nothing to do with their business were seized and they want the personal ones returned.
Police returned a small number of items, and the men offered to give police access to the business items in a different form.
In criminal court proceedings the men are accused of obtaining just over $135,000 by deception and have pleaded not guilty.
But Lennard said there were layers of quite difficult commercial law involved.
On any view of it there was an issue about whether it was really a commercial dispute.
Something like low level vigilante action was being taken against them, they decided to put the company into liquidation and thought that would only increase the level of disgruntlement against them, so they decidedtoleave.
Police saw the moving vans, the empty house and thought that they had to move quickly but they should have taken a couple of hours to write an application for a search warrant, he said. Instead it was done orally and it was imprecise, Lennard said. The warrant should have been only for items related to the company.
They were the ones who called the police that afternoon and that should have shown they were willing to cooperate, Lennard said.
Lawyer Kate Whiting, for the Attorney-General, said it was an urgent situation, with police receiving multiple complaints and the two men packing up to leave.
Police acted lawfully and reasonably, she said. In the circumstances an oral application was needed. Police couldn’t take the word of defendants about what items were relevant, she said.
Reading the warrants as a whole the items able to be seized were identified precisely enough, Whiting said.
Both sides were clear the warrants related only to company material, but it was reasonable for police to believe company information would also be on personal devices.
Another lawyer for the attorney-general, Rosa Gavey, said that while the search warrants were being challenged the electronic devices still had not been searched. Any irrelevant material would be returned as soon as possible.
Justice Christine decision.
Grice reserved her