Fake texter walks free after police ‘trick’ ruled out

A man who sent fictitious and distressing text messages to a woman has had his conviction for harassing her overturned because the police broke the law to arrest him.

Their "simple police investigatory trick" was deemed inadmissible.

The High Court judge who let him off condemned his behaviour and said he did not minimise the distress a campaign of fake messages had had on the woman.  He said he viewed it as something more sinister than a prank, anonymously targeting a woman.

But he ruled the police had committed the same offence in tracking him that the defendant had committed in the first place.

Police helping the woman, who complained of repeated false messages and orders of services to her home, texted the number from which a pizza had been ordered for her and pretended to be offering a prize of free movie passes. 

The fictitious texter answered with his name and address. When police visited his home, he denied any fake messaging, but when told by a sergeant about the movie ticket prize he slapped his forehead and exclaimed "I'm so dumb" before going to the station and making a full confession.

He was convicted of illegally using a telecommunications device, but appealed to the High Court that the police trick was the same offence he had been found guilty of because it "involved a fictitious representation." The subsequent head slapping confession was ruled inadmissible.

Justice Nicholas Davidson, in the High Court at Timaru, said the defendant, Richard Arthur James Crawford, had used a mobile phone to order two Domino's pizzas and garlic bread, giving the woman's address for delivery.

"The complainant has been the victim of a number of such 'prank orders' including a more serious occasion when a taxi was ordered, on instructions to take her to the hospital. There is no proof the appellant [Crawford] was responsible for those other incidents. On the present occasion the complainant decided enough was enough and involved the police."

She had obtained a mobile phone number from the pizza delivery man and tried calling it, as did police. Officers ran the number through their databases but could not identify the owner.

Then a sergeant decided to send the following text:

"Thanks for your continued support. You are the winner of two Movie Max 5 session passes to be used by 12/6/17. Text your name and address for the passes to be posted to you."

Justice Davidson said: "The appellant immediately replied with his name and address."

When police visited his house later and spoke to Crawford and his father, Crawford denied knowledge of the pizza order. But when the sergeant concerned said he was the "Movie Max guy", Crawford slapped his head said "I'm so dumb" and went with the officer to the police station "and made a full confession."

Crawford's appeal was on the admissibility of the confession. The district court judge had found the confession was improperly obtained after the sergeant accepted he had misused his phone to send a false message.

But that lower court judge had viewed Crawford slapping his head and saying "I'm so dumb" as "an entirely voluntary confession" made after he had been cautioned and the sergeant's trick had been exposed.

The district court judge ultimately concluded "by a narrow margin" that the confession was not "so closely linked to the sergeant's unlawful behaviour" that it should be excluded. The charge was proved and Crawford convicted.

On appeal to the High Court Crawford's lawyers argued he had been ambushed by the same offence he had been charged with. The police would have had other investigative techniques.

Justice Davidson's decision that the confession was inadmissible said: "There is a direct link between the trick and the appellant realising the game was up. The fictional message from the police fooled [Crawford]. When he said 'I'm so dumb' he in effect admitted his conduct and his confession followed. The trick, being the improper conduct, was his undoing. He had until then denied his involvement until he realised he had been tricked."

The judge said: "I understand the police actions, and there is a sinister element to the appellant's action. There is also inherent attraction in the narrative of someone like Mr Crawford 'getting a taste of his own medicine' and being undone by his own gullibility and greed."

But "a credible and effective system of justice cannot allow the police in their investigation of a criminal offence to engage in that or other unlawful behaviour, except where that is a necessary part of their work, for example, undercover. More is at stake here, being the way the police lawfully conduct their investigations."

He set aside Crawford's conviction, saying that should not minimise his behaviour. "The police officer's conduct was well intentioned but he needed to reflect on whether the line which marks impropriety would be crossed, and whether on balance it had to be, to identify the suspect and then to speak with him."

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