All 21 people caught in a botched police operation targeting the Red Devils face being charged again, and a retrial, after the Crown launched appeal proceedings yesterday.
Lawyer for some of the accused, Steven Rollo, of Christchurch, said the Crown was asking whether Justice Simon France was right to issue a stay of appeal against all 21.
Mr Rollo said he was "a bit surprised" by the Crown launching appeal proceedings, and his clients were disappointed.
"Obviously we are disappointed.
"The appeal cannot overturn the facts on which Justice France hung his decision, there is no argument about what police did in the course of the inquiry. The appeal simply asks whether Justice France was right to stay the proceedings as a consequence," Mr Rollo said.
Nelson lawyer Tony Bamford said this morning that the appeal proceedings were not unexpected, but were dragging out the matter for his clients.
He said nothing had changed for his clients and they currently had no charges before the court.
This could change if there was an appeal.
He said it was unlikely that appeal proceedings, if they went ahead, would be heard until next year.
The appeal proceedings come as police confirm an internal investigation into the Red Devils operation to establish if there were any issues of a criminal or disciplinary nature relating to the police involved.
The Independent Police Conduct Authority has also been notified as part of this process, a police spokesman said.
The spokesman said police were committed to ensuring the undercover programme operated in a way that puts offenders before the courts while operating within the law.
The investigation sits alongside a separate inquiry of the undercover programme by the national criminal investigations group. "This review will consider all relevant aspects of the undercover programme to ensure this situation does not happen again."
Mr Rollo said there was no doubt that police had breached the law, and a number of police should face charges.
Mr Bamford said the internal police investigation was a police matter, but the swearing of false information by police raised obvious legal questions.
The office of solicitor-general Mike Heron yesterday confirmed moves have begun to overturn the stay of proceedings ordered by Justice France last week.
Justice France ruled that police abused court processes by orchestrating the prosecution of undercover officer "Michael Wiremu Wilson", and by using a fake search warrant. All charges, which included drugs, firearms and gang-related offences, were thrown out.
Wilson infiltrated the Nelson-based Red Devils motorcycle club as part of Operation Explorer.
In the fallout, the stay also led to charges against senior Auckland Hells Angels member Phillip Schubert being thrown out.
Crown solicitors yesterday filed a notice in the High Court at Nelson which initiated the appeal.
Appeal court judges could order a retrial - leaving all 21 members and their associates once again facing the threat of arrest.
However, the possibility of criminal proceedings against police officers has not yet been ruled out, even though they could be called to appear as witnesses in the appeal.
In his decision, Justice France said it seemed "obvious" that at least some criminal offences had been committed and singled out the false search warrant and the swearing of the false charge.
However, he said it was his view the police involved had acted within inadequate processes, which were wider than the individual officers immediately involved.
- © Fairfax NZ News
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