Fake arrest puts cases in jeopardy
More than 20 prosecutions are in peril over revelations an undercover police officer underwent a fake prosecution to bolster his criminal credentials.
The police ploy, uncovered as part of the prosecution of Auckland man Phillip Schubert, has been linked to the prosecution of multiple members of the Nelson-based Red Devils Motorcycle Club.
Lawyers at the High Court in Nelson yesterday applied to have drugs, firearms and participation in a criminal group charges against Red Devils members dropped.
They argued police had abused the court process by conducting the fake prosecution of an undercover officer known by the assumed name Michael Wiremu Wilson.
Wilson had infiltrated the gang and was arrested and charged with possessing equipment to cultivate cannabis, without the knowledge of Nelson District Court staff or judges where he appeared.
In Auckland today, Schubert's defence counsel Eb Leary consented to wait on the Nelson court's ruling in his effort to obtain disclosure that detail the police actions.
Schubert, a senior Hells Angels member, is charged with one count of offering to supply methamphetamine.
Leary will likely make the same abuse of process argument once he has received disclosure.
Schubert is also one of 25 people fighting the charge of being at an illegal bar at the Red Devils Nelson clubhouse in August 2010.
A further eight are fighting more serious charges of running the bar.
The drugs, firearms and conspiracy charges all stem from Operation Explorer, a police investigation with Wilson at its heart.
Undercover arrest 'for protection'
In Nelson yesterday, the senior police officer who signed off the police ploy, National Crime Manager Detective Superintendent Rodney Drew, said the arrest of an undercover police officer was rare but "it does happen".
Drew said strict police policies existed for carrying out such a prosecution, and it was necessary to get it signed off by the Chief District Court Judge.
He knew of one other arrest of an undercover agent in similar circumstances in 2002, but it was possible there were other cases.
Drew said he had ordered a review of the police policy for arresting undercover agents in orchestrated scenarios, pending the outcome of the current case.
The court heard that Wilson and another undercover officer, who was posing as his de facto partner, were in the process of shifting to the Nelson region.
Drew said the orchestrated arrest of Wilson was necessary for his protection, as he had been threatened by a gang member. It was also necessary to enhance his appearance of criminality.
Chief District Court Judge Russell Johnson, who has since died, approved the fake prosecution in a meeting that lasted five minutes.
The judge knew that the prosecution was false, but did not know details of who the undercover agent was or where he was working.
Drew said he could have provided the answers to those questions if Judge Johnson had asked.
He said Wilson was to plead guilty straight away after he was arrested though another officer testified that Wilson went through the motions of defencding the charge.
Detective Sergeant John Mackie, who was involved in supervising the undercover operation, told the court that Red Devils members recommended Wilson see a lawyer they knew, who advised him to defend the matter. Wilson went along with this to maintain his cover and even failed to appear in court twice to enhance his credibility. Warrants were issued for his arrest.
Under cross-examination by lawyer Pip Hall, Drew said Wilson was challenged by Red Devils member Michael Tulouna on May 4.
In keeping with police policy, he declined to say if Tulouna was a paid police informant, even though Tulouna had since died.
Drew said he was satisfied the threat from Tulouna was genuine and Wilson was under a ''constant current of suspicion'' from the gang's members.
Asked if he considered whether police were involved in conspiring to pervert the course of justice, Drew said he was satisfied that police were acting in good faith and in accordance with police policy, and if there were any issues, they would be examined in court.
The charges against Wilson were eventually withdrawn when police wound up the operation against the Red Devils in March last year.
The application in the High Court at Nelson continues today.