Judge to rule on Red Devils charges

01:15, Jul 13 2012

A judge will rule next month whether the Red Devil Motorcycle club will go to trial after revelations an undercover officer was falsely prosecuted to infiltrate the gang.

''It (the false prosecution) strikes at the rule of law, and in my submission, in a pretty fundamental way,'' lawyer Pip Hall said yesterday.

Mr Hall was speaking on the second day of a pre-trial hearing in the High Court at Nelson for 21 people arrested in a police operation targeting the Red Devils.

Lawyers want the drug, firearm and conspiracy to take part in an organised group charges thrown out, arguing that police abused the judicial process when they arrested the undercover officer known by the assumed name Michael Wiremu Wilson.

Wilson infiltrated the gang and was arrested and charged with equipment to cultivate cannabis, without the knowledge of Nelson police prosecutors and Nelson District Court staff or judges.

Police have argued the staged arrest and prosecution of Wilson was necessary as he had been threatened and it was needed to enhance his perceived criminality to infiltrate the gang.

Justice Simon France reserved his decision on the application yesterday.

His decision could mean the case is thrown out or that evidence police gained after the false prosecution of Wilson might not be admissible in court. The Crown case relies heavily on this evidence.

On Monday police national crime manager Superintendent Rodney Drew said that the false arrest of an undercover agent was rare, but it did happen. He knew of one other arrest of an undercover officer in 2002.

There was strict police policy and this included police getting permission from the Chief District Court Judge, he said.

Mr Drew, New Zealand's highest ranking detective who signed off the police ploy, said police had ordered a review of the policy for arresting undercover agents as a result of this case.

However, Mr Hall argued the timing of Wilson's arrest was important and raised questions about the police process. Wilson was arrested on May 29 but police had searched a storage unit Wilson rented in Motueka a day or so before his arrest to find the equipment, Mr Hall said.

Police did not seek permission from the Chief District Court Judge to undertake the false prosecution until May 31.

''The process was well engaged by the time permission was sought,'' Mr Hall said.

Wilson was supposed to plead guilty straight away.

Instead he appeared in the Nelson District Court on June 14 and was eventually remanded to a status hearing on November 11 after a club member recommended he use a specific lawyer.

Wilson failed to appear and warrants for his arrest were issued. Police used his failure to appear to enhance his credibility.

The false judicial documents made by police for the arrest and prosecution broke the law and should not be excused, Mr Hall said.

''It was all part and parcel of an orchestrated scenario, how far should the police be permitted to use documents .... to create scenarios? In my submission it's beyond the scope of proper police conduct and by a big margin.''

The aim of the arrest was to enhance the credentials of the undercover officer in the eyes of the club so he could get further evidence for the police investigation. Bby the time of the orchestrated arrest police did not have a lot of evidence on the club, he said.

Police had not sought legal advice on the false arrest and the fact they had approval from the Chief District Court Judge did not stop it from being an abuse of the court process, Mr Hall said.

Crown prosecutor Jackson Webber said the crown was not seeking to sanitise what the police had done.

Mr Drew had edxplained the police policy for the orchestrated arrest of undercover agents had been around for over 10 years.

Police had created the false prosecution in good faith and sought permission from the chief district court judge, Mr Webber said.

He did not believe police actions warranted the ''extreme remedy'' of the charges being thrown out.

Lawyers for the Crown and defence yesterday also argued that the 21 defendants should be tried together.

The court heard there would be at least 14 lawyers present for the 10 week trial if it goes ahead.

There is not a court room big enough in Nelson to hold a trial of this size.

The police ploy, was uncovered as part of the prosecution of Auckland man Phillip Schubert who was arrested in the operation targeting the Red Devils.

In Auckland yesterday, Schubert's defence counsel Eb Leary consented to wait on the Nelson High 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.