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Joshua Karl Bell’s charges of assaulting a police constable and resisting a police constable were dismissed by a judge, after it was found the warrant to arrest him had been unlawfully issued.
An assault case has been thrown out of the courts in Hamilton on account of a police officer’s misleading search warrant application.
And it’s a ruling that a top city lawyer has deemed significant, as it shows that if police overstep, there are consequences.
Joshua Karl Bell, 24, of Glenfield, had been facing charges of assaulting a police constable and resisting a police constable, which were laid following an incident that allegedly happened on November 10, 2021.
Bell had come to the police’s attention in relation to another matter involving a protection order – an issue which has since been resolved outside of the criminal courts.
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His police charges were the subject of a hearing in the Hamilton District Court on June 13, at which Bell – through his counsel Jesse Lang – successfully challenged the admissibility of evidence in the case against him.
Judge Simon Menzies found an affidavit earlier lodged in court by Constable Trevor McMorran presented a misleading impression that a warrant to arrest Bell was necessary, because all other lines of inquiry had been exhausted.
They had not, the judge decided.
This was because important details were not included in the affidavit, such as the fact Bell had offered to make a voluntary appearance at the Hamilton Police Station, and had spoken with and offered to meet the constable – however that did not suit the constable’s timetable.
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Barrister Roger Laybourn: “It is an important reminder that the integrity of the court process must be vigorously protected as an important foundation of our democracy.”
An offer had also been made through Bell’s lawyer to arrange a meeting.
However, in his affidavit, McMorran had stated that Bell had “refused to go to the police station at an appropriate time to deal with the matter”.
McMorran also stated he believed Bell was “actively avoiding arrest” and that Bell “is a flight risk … [because] he had booked flights to leave New Zealand in late November 2021”.
Judge Menzies’ view was made clear in his ruling: The constable should not have sought a judicial order simply because he could not organise a meeting.
He found that the policeman had opportunities to meet with the defendant but did not include these facts in the affidavit that had been accepted at face value by the court staff member who issued the warrant to arrest.
Menzies said there was merit in the defence argument that “to a large degree by omission, the picture presented by the affirmation of the constable was not an accurate one, or was a distorted picture of the true circumstances, which has in turn obviously influenced the decision-maker in the issue of the warrant.”
“I have come to the conclusion that the warrant was unlawfully issued … [however] I would not accept that there is evidence in front of me to suggest that it was deliberate or in bad faith.”
In any event, Bell lived at home with his parents. A legally-binding summons could easily have been served on either of them before the decision was made to obtain a warrant.
Hamilton barrister Roger Laybourn had examined Menzies’ decision, and reckoned it constituted a good lesson for the police.
“The issuing of a warrant to arrest must be made on legitimate grounds because it involves taking away a citizen’s civil liberties of privacy and freedom from detention.
“Accordingly, a complete and accurate picture must be presented in an affidavit, which is a sworn document that carries extra weight – and it is assumed that a court can rely on the accuracy of the contents.
“This case is important because it shows that the police have responsibilities that come with their powers that can impinge on the rights of citizens, and that there are consequences if they do not live up to those standards.”
It was not possible to judge whether the incident was an isolated one, Laybourn said.
“But it is an important reminder that the integrity of the court process must be vigorously protected as an important foundation of our democracy.”
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