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A chance sighting of a hookah in the back of a sailor’s car sparked an extensive investigation into drug crimes within the military. But the first cell phone searches conducted by investigators were found to be illegal fishing expeditions and torpedoed more than two dozen drug charges. George Block reports.
It was a mild morning in August 2017 when two members of the military police walking past the Devonport Naval Base in Auckland saw something suspicious in the back of a sailor’s car.
They confronted and questioned the owner of the car.
The man, who has name deletion, admitted that the item discovered by Master Warrant Officer at Arms Richard Mathers was a bong and that there was cannabis in his car.
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The military police managed to obtain permission from their commanding officer, Lieutenant Commander Damien Gibbs, to search him, his car and his cabin.
Along with the bong and the “plant-like material believed to be cannabis,” they found a knife, a grinder and an empty box of synthetic urine, which was used to pass drug tests.
They also took possession of his cell phone, according to documents from the Court of Appeals of the Court Martial.
What followed was an email exchange between senior military police officer Allen Coates and Gibbs, which a judge would later describe as “troubling.”
Coates told Gibbs that investigators were looking for evidence related to drug crimes and asked permission to send the sailor’s phone to an electronic crime lab for analysis.
“I have good reason to believe that (the sailor) has been using his mobile phone to contact his friends regarding the purchase of drugs and drug paraphernalia,” he wrote.
“We have evidence showing that you obtain cannabis from your colleagues, and in our experience, it is commonplace for drug users to use their cell phones to communicate their purchases.”
Exactly what evidence did the military police have to prove that the sailor had obtained cannabis from colleagues was not specified.
“There may also be intelligence that could help identify other criminals.”
Gibbs responded briefly via email, granting permission, but did not question Coates’ suggestion that the sailor was obtaining drugs from his comrades.
David White / Stuff
Devonport Naval Base, where military police saw drug paraphernalia in a sailor’s car in 2017.
The phone was duly sent to an electronic crime lab at Trentham Military Camp in Upper Hutt for analysis.
The evidence from that search was the early catalyst for Operation Waikato, an investigation into the acquisition, supply and use of illegal drugs among military personnel, particularly members of the Royal New Zealand Navy.
Among the accused was another sailor, known as A in court rulings, who also has name suppression.
He faced seven charges under the Armed Forces Discipline Act, based solely on evidence obtained from the first sailor’s cell phone, related to the offer to supply a class B controlled drug.
His case came before Judge Duncan Harvey at a hearing on November 5, 2018, but did not advance to a court martial trial as an unimpressed Judge Harvey declared the evidence inadmissible.
He was concerned about the comments from Chief of Military Police Coates when he requested permission to search the sailor’s cell phone and the lack of further questioning by Lieutenant Commander Gibbs after Coates did not provide the basis for his claims.
The commanding officer faced reasonable evidence to suggest that the sailor had committed two offenses against the Drug Abuse Act, Judge Harvey said, but there was nothing else that gave him reason to suspect that or any other person would have committed any other crime.
Judge Harvey called the search a “fishing expedition” and both illegal and unreasonable.
The Crown unsuccessfully appealed to the Court of Appeal of the Court Martial. Judge Peter Churchman and Judges John Billington and David McGregor heard the appeal on February 20, 2019.
“We agree with the judge that the only reason for this search was to participate in a fishing expedition,” says the sentence. “The search was illegal and the evidence derived from it was improperly obtained.”
Last week on September 29, just over three years after the bong sighting, another sailor appeared at a pre-trial hearing, this time before New Zealand Chief Judge of the Court Martial Kevin Riordan.
Able (propulsion) marine technician Odin Robinson was among those identified following the illegal search of the sailor’s phone.
He faced 19 charges related to the use, supply, acquisition and attempted acquisition of MDMA, a controlled class B drug, and one for careless driving.
Two of Robinson’s cell phones were seized by military police on November 27, 2017, but it took nearly three years to get to court.
Judge Riordan said in his written judgment that while there could be good reasons for parts of that delay, such as Covid-19, it seemed “an extraordinary period of time for this matter to hang over the defendants.”
Senior Prosecutor Rob Goguel accepted that the evidence from Robinson’s phones was “improperly obtained” because it was tainted by the previous illegal search of the sailor’s phone, but argued that excluding the evidence would be disproportionate to the level of incorrectness.
Robinson’s attorney, Melinda Mason, who also represented the First Sailor on his successful appeal, argued that the search for Robinson’s phones was illegal and that the evidence was irretrievably tainted because it stemmed from a search already declared improper and illegal.
Chris Weissenborn / Supplied
Sailors from the Royal New Zealand Navy lower a white insignia in 2013. (File photo)
Again in question was a request from the military police to a commanding officer seeking authority to search Robinson’s cell phones, this time on the HMNZS Te Mana frigate on which he served.
Judge Riordan described the request as a “rare document” indicating that Robinson had used cannabis and possibly supplied LSD, a class A drug that carries much more severe penalties than cannabis. The app included evidence of text conversations, including a message from a third party to the first sailor. stating that he would need to approach Robinson to get “acid” (LSD) pills.
“Brother, you have to go through Odin for the team, brother,” the text message read.
However, an exchange between the sailor and Robinson cast doubt on the reliability of the third party’s claim.
Robinson denied in text messages that he was a supplier of “sid” (LSD) or “budz” (cannabis) before the sailor said that the third party was drunk and “having a thread”.
Judge Riordan found that the evidence given to the commanding officer was the “weakest justification” for a search under the Armed Forces Discipline Act that he had seen.
The military police’s request to the senior officer was based on shaky foundations, the judge said.
Simon maude / Things
Robinson previously served aboard the Royal New Zealand Navy frigate HMNZS Te Mana.
In any event, he found, the search was even less justifiable than the one conducted on the sailor’s phone.
If the Crown’s case would be based entirely on tainted evidence, greater care was required early in the investigation, Judge Riordan said.
It found the evidence from Robinson’s phones to be inadmissible and, again, the case did not advance to court martial.
Robinson, 27, spent about two and a half years on paid Navy leave.
Talking to Stuff She maintained her innocence and said she wanted to use her story to help others.
“It has been a journey.”
While suspended, Robinson studied and became a personal trainer before starting his own business in that field. He competed in bodybuilding competitions and Brazilian Jiu Jitsu tournaments, he was an extra on the Netflix series. Deadlands and started a charity, Unite Aotearoa, to help feed and clothe the less fortunate and homeless.
Robinson said there should be consequences for those involved in the failed searches, but he wasn’t sure whether he would seek compensation.
“I think someone must be held accountable.”
Supplied / Stuff
Able marine technician (propulsion) Odin Robinson, before the Operation Waikato saga, photographed on the Champs-Elysees in Paris before the start of a 2016 Bastille Day parade.
Robinson is back in service but no longer serves on the frigate Te Mana, instead working off the coast of Devonport Naval Base.
On Thursday, all his charges were officially dropped and the Crown confirmed that it would not appeal the decision.
A spokeswoman for the New Zealand Defense Force did not immediately reveal how much was spent on Operation Waikato, instead saying the question should be treated as a request from the Official Information Act (OIA), which allows 20 business days to respond. .
Operation Waikato does not appear to have been completely unsuccessful.
It led to guilty findings and administrative actions for several staff members, the spokeswoman said, although details of these again were not immediately released.
Following the decision of the Court-Martial Court of Appeals regarding the Sailor A case, the defense force “adapted” its search procedures, the spokeswoman said.
The big changes were a time limit on searches for electronic devices (limiting how far back researchers could look) and requiring legal advice for such searches, he said.
No member of the military police was disciplined or sanctioned as a result of their actions during Operation Waikato, although they received additional training.
The spokeswoman repeatedly emphasized that the courts found that the searches were not deliberately inappropriate or made in bad faith.
As such, the defense force was not considering compensation or apologies to those involved, he said.
