Another eye-opening trial, subject to suppression orders, played out last week in the Auckland High Court which should eventually affirm lawful guidelines as to how police conduct search warrants on lawyers’ offices.
The five day civil trial in A v Police had a barrister suing police on several grounds, including unlawful detainment and illegal search of an Auckland firm of solicitors and barristers chambers sharing downtown offices.
Police represented, when obtaining the District Court search warrant in July 2016, they would have the solicitor targeted in their investigation present for the search or, alternatively, a lawyer present from the District Law Society. Section 143 of the Search and Surveillance Act 2012 requires the lawyer or a lawyer representative to be present during executions of searches on lawyers’ offices in order to claim client privilege or interim client privilege on seized documents where applicable. Neither were present upon execution of the search. Police executed their search with no lawyer present.
Current Detective Superintendent in charge of criminal investigations in New Zealand Iain Chapman headed the five person search team, which included a forensic accountant. Police were operating on a tip that conveyance of a real property had occurred, with the seller’s signature witnessed a solicitor of the firm despite the seller being out of the country.
Three law firms were snared in the investigation.
During the trial NZ Police Detective-Superintendent Chapman testified all lawyers with the law firm searched under warrant were treated as ‘witnesses’ because he considered the prospect of a person fraudulently representing himself as the property owner to be more likely than the alternative scenario; a lawyer being in on the fraudulent transference. But he testified he held open that the solicitor and possibly her legal assistant and immediate superior were ‘suspects’. Chapman’s two immediate subordinates in the search had earlier testified they considered the solicitor and others in the firm suspects because the subject solicitor had invoked her right not to talk to police without being informed of their line of questioning.
The police investigator testified it is not her practice to provide information on line of questions ahead of interview, even for witnesses. Her police superior admitted to later making a Law Society complaint against the lawyer-plaintiff – who was not subject of the police investigation – because he questioned the validity of the police warrant and “was not cooperative” in the search.
It was revealed in evidence the other two law firms provided documents Police had requested of them without warrant or question, with one of the firms likely breaching their client’s legal privilege. Detective Inspector Jackie Horner and Detective Investigator Jill Holland testified invocation of the right not to speak to police was the catalyst for obtaining the search warrant from the third firm. Both said they expect lawyers in particular to not invoke their right to silence unless they “have something to hide”.
All police witnesses admitted to not having a lawyer present despite this being a requirement the police represented they would adhere to when obtaining the search warrant. Detective-Superintendent Chapman stated he considered the legal assistant to the solicitor targeted in the search fulfilled this legal requirement of lawyer representation but was shaky on specifics. In cross-examination, he admitted his introduction to the assistant included reading him his legal rights to silence and to a lawyer.
Chapman did admit to a learning curve, testified he would conduct the search differently today and said he was not the one who obtained the warrant. Detective Inspector Holland, who obtained the warrant, testified she had contacted the Law Society to supply a lawyer for the search but that the Law Society had declined to provide one despite the legal requirement of s143 which compelled them to do so. Inspector Holland admitted her detailed notes contained no record of the attempt. When pressed she said she spoke with “Ian” from the Law Society but she could not recall a surname or date for this inquiry.
During the search Detective Inspector Horner was captured on video refusing to provide the name of the lawyer who police represented would be present during the search. She is shown telling the claimant “find out yourself” and then blocking the camera with a piece of paper and walking away when he responded it is her duty to advise.
Video featured prominently in the case, with multiple video feeds of participants to the court and cell phone videos of the search itself. Video included Detective Superintendent Chapman advising the claimant lawyer of his rights when he showed up mid-search and then stating he was being detained, twice.
In court testimony, Chapman stated he had said this because the lawyer was not cooperating with his attempt to explain the warrant. Chapman eventually admitted he was concerned the barrister plaintiff “might talk to others in the office and tell them not to cooperate” with Police, which led to his rights warning and intent to restrict the plaintiff’s movements.
He stated the lawyer had not taken his claim of detention seriously and had subsequently given his agreement to the police search when he said “get on with your search”. This, Chapman said, was sufficient in his mind to overcome any legal requirement that a lawyer representative be present.
Chapman added he called off the search when a High Court judge made an interim direction police attend the court upon an urgent challenge of the warrant. By this time he conceded the documents police sought had been obtained, except for a trust ledger.
