Two judges have caned MPI over conduct in a six-year investigation, reports Phil Taylor
An investigation into suspected "large scale fishing fraud" has collapsed following a ruling that a raid involving the Armed Offenders Squad that found evidence stashed in a sewer pipe was illegal.
The Ministry for Primary Industries laid 100 charges under the Fisheries Act based on torn documents found in a sewer breather pipe at the home of Auckland fish dealer Brett Edwards. Also seized was $72,730 cash.
But the charges were dismissed in May after a ruling that the raid was "complete overkill" and a "gross" breach of the New Zealand Bill of Rights.
The decision came three years after charges from the raid were laid and almost six years after MPI began Operation Partridge targeting Edwards.
A year after applying for access to the court file, the Herald can report that two judges have been scathing of MPI's conduct, prompting the ministry to improve staff training.
MPI was found to have ignored the law, been "high-handed", "exceptionally economical with the truth", insensitive or callous towards the target of its investigation and failed to own up to its errors.
Judge Raoul Neave said the conduct suggested that "insufficient attention is paid to ensuring that the enforcement officers are properly schooled as to the way in which they should be exercising their powers".
Edwards, his advisers and the court were misled and money seized during the raid was held unlawfully.
Judge Neave said that officials had clearly not believed the explanation for the source of the money which had included that $26,000 was won betting on the family's racehorse.
"They took the view that the money was illicitly obtained and were determined not to return it."
In the ruling that sank the case, Manukau District Court judge Anna Johns found that a raid of adjoining properties on Mangere's rural fringe, belonging to Edwards and his parents, breached the New Zealand Bill of Rights Act.
Johns also found that Edwards and others were improperly detained.
"This was in my view a deliberate tactic adopted by MPI and not a mistake or misunderstanding," she said.
It is a significant black eye for MPI which has come under considerable scrutiny recently for its performance regarding fishing, animal welfare, the Kiwifruit PSA virus and Mycoplasma bovis.
MPI declined a request to provide a senior official for interview but said in a statement that it recognised it got "procedural matters" wrong.
"A level of inexperience was evident in the way this operation was handled," MPI Compliance Director Stephanie Rowe said. It had since introduced formal search and seizure training and continued to emphasise to staff the importance of exercising statutory powers properly.
Rowe said current practice ensured big investigations are appropriately staffed and serious fraud matters concluded as soon as possible.
She said Operation Partridge was appropriate because it involved allegations "of large scale fraud of the quota system" and Edwards and an associated company were convicted "of serious offences under the Fisheries Act" as a result of the undercover phase.
After a plea bargain, Edwards admitted three charges of buying 720 kilograms of "purported blackmarket fish" from undercover officers during a 12-month period. But he claims he was misled into thinking that ended all matters and was shocked when charges based on the sewer documents were laid.
Edwards appealed a decision to give the Herald access to the full court file. His lawyer, David Jones, QC, argued it would be unfair to publish the sewer documents and MPI's 76-page analysis of them because this evidence will now never be tested in court.
But the broad story of Operation Partridge can be told. It began in July 2012 with a tip that Edwards was allegedly involved in illegal sales of fish and unregistered slaughtering of farm animals.
Following the undercover sting, MPI involved the police Assets Recovery Unit when search warrants were executed on September 19, 2013.
As licensed firearms were likely to be at the properties, the police decided to involve the Armed Offenders Squad and bring the raid forward two hours to 7am.
The court heard that the first the householders knew of the raid was when children in the house saw police with automatic rifles approaching.
The party of about 30 included eight members of the Armed Offenders Squad, asset recovery officers, a dog handler and dog trained to detect cash, plus fisheries investigators and animal welfare staff.
The bulk of the money found was "hidden under drawers and dressers" in Edwards' bedroom, according to evidence filed in court by Philip Tasker, the MPI investigator in charge of Operation Partridge.
Also seized was what became known as "the sewer documents" - 23 wet and torn pieces of paper or dockets. According to a statement filed with the court, they were seen in the sewer breather pipe by an investigator while he was outside having a break hours after the raid began.
The documents formed the basis of charges laid almost two years later.
Charged with 20 counts each of having "obtained a benefit knowingly selling or otherwise dealing in fish in breach of the Fisheries Act" were Edwards, his company Mangere Bulk Seafoods, Carole Shorrock, a manager of the company, and Tauranga fisherman Roger Rawlinson and the Rawlinson family-owned RMD Marine, suppliers of fish to Edwards.
Edwards first attempted to have the charges dismissed in 2016 claiming abuse of process by MPI. While the ministry's attitude and approach "left a lot to be desired", Judge Neave ruled it was insufficient to stay charges, "which at this point in time I have to assume were properly brought on the basis of sufficient evidence".
Fifteen months later, Judge Johns ruled that the raid breached Bill of Rights Act provisions guaranteeing freedom from unreasonable search and seizure and that evidence collected was, therefore, inadmissible.
MPI has decided not to appeal. Edwards has not sought costs. His lawyer was unable to confirm whether the seized cash has been returned.
A third of $72,730 cash seized during an investigation into "suspected large scale fraud of the fishing quota management system" was said to be from racing punts.
According to court documents, Brett Edwards said $26,000 was from two bets in June 2013 on a trotter he co-owns and trains named Dauntless.
The winning bets were said to be $1000 to win at 20:1 and $1000 for a place at 6:1.
Dauntless is now an 11-year-old bay gelding with a moderate record, having raced 102 times for seven wins.
Edwards was fined $500 by racing authorities for excessive use of the whip on the horse last December. He struck the horse 25 times inside the last 400 metres, according to the Racing Integrity Unit, when no more than 10 strikes is permitted. The horse finished a close second.
Fisheries officers were told that the rest of the cash came from Edwards' fish business, the return of a $15,000 house deposit and $20,000 accumulated over time by his son from selling firewood and used golf balls.
Ministry for Primary Industries
Oversees New Zealand's fishing, forestry, biosecurity and food safety interests.
Formed by a merger of MAF and MFish and the NZ Food Safety Authority four months before Operation Partridge began.
July 2012: Tip received alleging Brett Edwards is selling non-quota fish and slaughtering animals unregulated.
September 2013: Search warrants executed at Edwards family homes and business. Torn documents in sewer pipe and $72,730 cash seized.
April 2014: Edwards charged with illegal fish dealing with undercover officers.
September 2014: Edwards pleads guilty to three charges on the understanding it will end all Operation Partridge matters, sentenced to community detention.
October 2014: Search warrant on fishing company RMD Marine and other Tauranga addresses.
May 2015: Edwards served with new Fisheries Act charges based on the sewer documents.
October 2016: Application for stay of charges because of abuse of process.
February 2017: Judge Raoul Neave doesn't grant stay but is scathing of MPI's conduct.
May 2018: Judge Anna Johns rules the search was unreasonable and "the sewer documents" inadmissible. All charges are dismissed.