He was ultimately charged with 87 offences, with charges laid in stages over several months. The Crown later withdrew 24 charges.
His lawyer, Mitch Whitford, applied in April to have all remaining charges dismissed.
Weak identification evidence
The case unravelled after Whitford challenged search warrants used by police.
Judge Farish found the warrant application relied largely on a statement from a police officer who identified the alleged offender in CCTV images as a “close match” to Clarke based on an earlier prisoner photograph.
However, the officer was not called as a witness and had not provided a formal statement.
The court did not know what previous dealings the officer had with Clarke, how well he knew him, or exactly what material he had been shown before making the identification.
Problems with search warrants
Police also relied on a blue jacket, distinctive shoes and bolt cutters visible in the CCTV footage. Clarke was wearing matching clothing and had bolt cutters in his possession when he was arrested.
But while those items could have linked Clarke to the offending, Judge Farish noted that the offender’s face could not be seen clearly in the footage and ultimately found the evidence was insufficient to establish that he was the person on CCTV.
She also identified problems with the information police relied on to connect Clarke to a Christchurch property searched as part of the investigation.
There was no information about who owned the address, who lived there or what type of property it was.
Judge Jane Farish said there were wider issues as the search warrant was “deficient”. Photo / One News
The court later heard that multiple people were living there.
Judge Farish found there was insufficient evidence to justify a warrant for the address.
While there was a basis to search Clarke’s phone, there was insufficient evidence for the judicial officer to reasonably conclude that Clarke was the man in the CCTV images, she said.
The Crown later conceded it could not argue that the evidence should be admitted, given what it described as a “litany of errors”.
Judge Farish ruled the evidence inadmissible.
That left the prosecution without enough evidence to proceed on 33 charges because the CCTV material provided the only potential link between Clarke and the alleged offending.
She dismissed those charges.
Disclosure failures
Judge Farish also identified serious disclosure issues.
During a hearing, it became apparent that police had failed to disclose an application for one of the search warrants.
The only document provided to the defence and Crown had been a copy of the cellphone warrant.
When the judge asked court staff to locate the missing warrant application, it was found in less than five minutes.
Police had previously indicated they could not find the document, did not have it and believed it was being stored offsite.
Judge Farish found those explanations were incorrect.
Questions over arrest
Three charges remained after the warrant evidence was excluded.
However, Judge Farish said there were also issues surrounding Clarke’s arrest.
A police officer had seen Clarke riding a bicycle and understood he might be a suspect in the thefts.
The officer stopped him and asked for his name.
After Clarke identified himself as Matthew, he was arrested for receiving stolen goods.
No receiving charge was ever filed because police lacked sufficient evidence.
“So, one queries as to why Mr Clarke at that stage was arrested because there was no basis other than suspicion that he may well have been involved in these multiple bike thefts,” Judge Farish said.
The Crown later decided not to pursue the remaining charges.
The judge agreed.
“Mr Clarke has now been in custody for 12 months, and there is some issue as to whether the police had the ability to stop and arrest him,” she said.
“If there are issues in relation to that, then obviously the evidence that flows from that is inadmissible.”
Police would have been better placed to continue surveillance rather than arrest Clarke when they did.
“The best opportunity would have been to keep Mr Clarke under surveillance, identify him stealing a bicycle, arrest him, seize his phone and then search it.
“That would have given them ample information to apply for a search warrant, and the evidence would have all been admissible.
“Unfortunately, we are not in that position.”
She discharged Clarke on the remaining charges and told him he was free to go.
In a statement to NZME, Inspector Glenda Barnaby, Christchurch metro area prevention manager, said police had made a procedural error that was not identified until the court reviewed the case documents.
“We acknowledge and accept the court’s decision.”
Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently, he was editor of the Hauraki-Coromandel Post, based in Whangamatā. He was previously deputy editor of the Cook Islands News.
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