Serious criminal charges of growing cannabis were thrown out because of a 'sloppy' search warrant application for police. But in a legal first in New Zealand, the evidence unlawfully obtained with the warrant was able to be used in civil case brought by police. Nearly nine years after an anonymous
Taupō man Karl Marwood paid police $241,000 in civil settlement despite cannabis charges being thrown out after 'sloppy' search warrant
Karl Marwood paid police $241,000 after unlawfully obtained evidence of cannabis in his property was allowed to be used in a civil case. Photo / Supplied
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The caller said "this is the police", to which the man replied "yes" because he thought the caller was a police officer.
The tipster said "Karl" has marijuana plants growing in the backyard of a specific Taupō address, then hung up.
At this point, the man who took the phone call realised the anonymous caller was asking if he was the police.
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He reported the phone call to the police, who made checks on the address which revealed Karl Marwood was living there.
Marwood also had historical convictions for the cultivation and possession of cannabis for sale.
On these grounds alone, the police were granted a search warrant. On raiding the address, police found 29 cannabis plants in a hidden room, as well as nearly 3kg of dried cannabis.
Marwood was charged but Judge Josephine Bouchier later ruled the anonymous tip established only suspicion of offending, not the "reasonable belief" threshold needed for police to obtain a search warrant.
The police made no further inquiries into the reliability of the tip.
As a result of the "sloppy" police work, the search warrant was ruled unlawful and any evidence obtained as a result was thrown out. The criminal case was discharged in May 2011.
Marwood's legal victory was short lived. The following year, the police took a case under the Criminal Proceeds Recovery Act. They alleged Marwood had made $334,130 from cultivating cannabis.
The law allows them to apply to the High Court to seize assets where there is evidence someone has profited from "significant criminal activity" - even if criminal charges had never been laid.
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These cases essentially force someone to prove how an asset was paid for and are determined on the "balance of probabilities" - the civil level of proof - rather than the criminal threshold "beyond reasonable doubt".
And while the police have been successful in seizing assets without securing criminal convictions, the Marwood case was different.
This was the first time the police had tried to win a civil case by using evidence which had previously been thrown out in a criminal case.
What followed was a legal battle which went all the way to the highest court in the land.
Because the application for the search warrant was "seriously deficient, Justice Mark Cooper found the search of Marwood's home was unlawful and a breach of the Bill of Rights Act.
The breach of Marwood's rights was serious enough for the cannabis evidence to be ruled inadmissible in the civil forfeiture case, the High Court judge ruled in August 2014.
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This was overturned by the Court of Appeal the following year,
Marwood had already "enjoyed the vindication" of the criminal case being thrown out, the Court of Appeal said, which was appropriate given the breach of the Bill of Rights.
But the panel of three senior judges ruled there was no jurisdiction for evidence ruled inadmissible in a criminal trial to also be excluded from a civil trial.
Even if there was, the Court of Appeal said it should not be exercised.
"A forfeiture order would simply return Mr Marwood to the same financially neutral position he would have been in but for his participation in significant criminal activity," wrote Justice Rhys Harrison.
"It would be contrary to public policy to allow Mr Marwood to retain the financial fruits of his crime where the evidence, even though improperly obtained, is nevertheless highly probative."
Marwood's lawyer Mark Ryan took the case to the Supreme Court where he hoped to set a precedent.
If successful, Ryan believed the Marwood appeal would confirm the courts did have jurisdiction to rule evidence inadmissible in civil proceedings if the evidence was improperly obtained.
He was right. And wrong.
The Supreme Court panel of five judges disagreed with the Court of Appeal on the point of jurisdiction, proving Ryan correct.
However, the panel of five judges said the real question was whether excluding improperly obtained evidence was proportionate to the breach of rights.
In this particular case, the Supreme Court said the conduct of the police was not a serious breach.
The "remedy" for the unlawful search was for Marwood to sue for damages which could be offset from the assets the Commissioner of Police wanted for forfeiture.
This was not to say improperly obtained evidence in a criminal prosecution could always be used in a civil forfeiture case. It would depend on a case-by-case basis and depend on the seriousness of the breach.
"So, if for example, the police have acted in bad faith, a judge may well conclude that the further vindication of exclusion of evidence in a [civil forfeiture] is required," the Supreme Court said.
In a separate judgment, Dame Sian Elias - the then Chief Justice - went further in criticising the Court of Appeal.
Stripping "unlawful benefit" was no better in justifying the admission of unlawfully obtained evidence than convicting the guilty, wrote Dame Sian.
"It could allow egregious breaches of rights to be overlooked or treated as spent in impact without proper consideration of rule of law considerations.
"It is, in my view, the sort of reasoning which is likely to prove slippery."
Despite the unsuccessful appeal, the Marwood case dragged on for nearly three more years until a settlement was reached the eve of trial this year.
In a deal signed off by Justice Matthew Palmer in July, Marwood agreed to pay $208,000 to the police.
This sum was in addition to the $33,027 raised from the sale of his cars restrained by the police.
As part of the agreement, Marwood got to keep his house in Taupō.
Nine years after the mistaken anonymous phone call, the case was finally over.
Detective Senior Sergeant Keith Kay, of the asset recovery unit, said the Criminal Proceeds (Recovery) Act was enacted in 2009 so that New Zealand Police could hold people to account so they do not benefit from proceeds of crime.
"The act is a crime fighting tool to be used to prevent crime. The act itself is specific in that assets can be forfeited with or without convictions and the Marwood case reinforces that position.
"This is an excellent result and in particular an excellent result for the Taupo community."
