An "extremely serious" breach by police has led to the evidence of two witnesses being withheld from a jury in an Invercargill sex case.
The defendant, who was granted final name suppression, was later cleared of four sex offences, including one of rape, against two of his former babysitters in a trial before the Invercargill District Court this month.
It can now be revealed that a police botch meant the evidence of two other women was ruled inadmissible by the Court of Appeal before the trial.
Southern District crime manager, acting Superintendent Shona Low said she "acknowledged" the Court of Appeal's decision.
"Investigations are complex, and police must take into account a number of considerations, especially when there could be concerns for the safety and wellbeing of members of the public."
On September 10, 2020 Detective Jeremy Dix made what he called a "preventative visit" to the defendant’s house.
The case against the man was gaining momentum; an evidential interview had been completed with one complainant and another had been spoken to on the phone.
The defendant said Det Dix did not tell him the purpose of the visit but told him he had "nothing to worry about" and the police were trying to "protect" him.
The suspect asked if he could contact a lawyer and said he was told he could not, although the officer disputed that at a pre-trial hearing.
The defendant had a camera set up in his home in preparation for the visit and when Det Dix arrived he asked if he could record their conversation.
His request was declined because the detective said he was not comfortable being on camera.
"Quite what authority Detective Dix had to deny [the defendant] the right to videotape or record the visit, in [his] own home, has not been explained. That Detective Dix did so causes concern," the Court of Appeal decision said.
Det Dix asked the defendant to provide a list of all the girls who had babysat for him and their phone numbers.
He complied but later said he was "not happy" about handing over that information.
The contact details led to police finding a third complainant and a fourth woman who was set to give propensity evidence (not the subject of a charge but intended to prove the defendant’s ongoing course of conduct).
The court ruled that by the time of the home visit, Det Dix had enough evidence to charge him and so should have cautioned him.
"Detective Dix put [him] in the position of supplying information to the police without knowing he was to be charged in relation to the allegations made by Complainants one and two," the decision said.
"Breaches of that fundamental right should be viewed as extremely serious and the courts’ response should likewise be a serious one."
The court also highlighted the fact English was not the defendant’s first language and he relied on a translator at trial.
"To our mind, this emphasises his vulnerability and that the police should have been particularly cautious in their approach to him at the time of the visit," Justices Wylie, Thomas and Brewer said.
Despite Det Dix not taking any notes of the visit and acknowledging his memory of the event was unclear, Judge Kevin Phillps in the District Court preferred his evidence over the defendant’s.
The evidence obtained by police was ruled admissible but that was overturned on appeal following a hearing in June.
"We consider that the credibility of the justice system can be maintained only if the police are held to minimum standards, particularly when such important principles are involved," the Court of Appeal decision said.
"[The defendant] was effectively required to be his own betrayer. We are sufficiently concerned about the seriousness of the breach and the unfairness that we conclude the evidence obtained as a result should be ruled inadmissible."
Acting Superintendent Low said the case served as an important reminder around cautioning individuals who are under investigation.
Police did not respond to the Otago Daily Times' questions about whether the officers involved had faced disciplinary action or if the case had prompted any investigation or protocol changes.
