Lawyers have condemned a move that saw a court fooled into prosecuting an undercover cop to boost his criminal standing.
Police are defending the move because of the dangerous nature of undercover work, but a leading barrister says it is an "an abuse of process hitherto unknown" in the legal system.
Documents show the fake prosecution was signed off in 2010 by Chief District Court Judge Russell Johnson, who has since died.
A police letter to Johnson, obtained by the Sunday Star-Times, says undercover officer Michael Wiremu Wilson, who infiltrated the Red Devils gang, was arrested in an "orchestrated scenario" on May 29 that year, a move necessary to protect his assumed identity and "ensure his continued safety, divert suspicion, and enhance the appearance of criminality".
The letter asks permission for the prosecution, but says because the agent is a policeman, he would have a "complete defence" under the Misuse of Drugs Act. But that act specifies no prosecution can start against an undercover officer, "except with the leave of the attorney-general".
Wilson had infiltrated the Nelson chapter of the Red Devils motorcycle gang, which has links to the Hell's Angels. He was charged with possession of equipment for cultivation of cannabis after a raid on a storage unit he was renting in Motueka.
Police national crime manager Detective Superintendent Rod Drew and Detective Senior Sergeant Warren Olsson met Johnson two days later, proposing the officer appear and plead guilty, with a conviction to be entered under his assumed identity.
Johnson agreed, but a police jobsheet noted he "did not want to know any identifying details of the agent or his court appearance".
Senior Auckland barrister Eb Leary said the whole thing was a "fabricated sham calculated to deceive the Nelson District Court, and therefore the judicial system".
He likened the case to "judicial misconduct", calling it "an abuse of process hitherto unknown in the New Zealand legal system", saying Johnson's stance that he did not want to know the details was "worse than turning a blind eye".
Wilson was arrested again in August 2010 after a raid on the Red Devils gang headquarters following a cage-fighting event. He was named in the Nelson Mail with dozens of others arrested, and was later charged with being found on unlicensed premises with an illegal bar. The newspaper reported a truck was needed to haul away the alcohol from the venue.
It is not known if police sought permission for the second court appearance, and it is understood the prosecutions were dropped after Wilson had made several appearances. None of the judges he appeared before was aware he was an undercover officer.
Criminal Bar Association acting vice-president Matthew Goodwin said he had never heard of such a thing in 21 years as a prosecutor or defence lawyer, and he questioned whether the police's own prosecution guidelines had been violated.
"I doubt whether that process is sanctioned by statute, which raises serious questions. We have concerns about a false prosecution being processed through the courts."
Goodwin said people should be prosecuted on a "principled basis".
"I don't think this would meet the police prosecution guidelines which require the police to have reliable evidence that a crime has been committed, because the police know the undercover officer would normally have a complete defence to the charge because of his role."
Police released a statement yesterday saying undercover operations were difficult and dangerous, and often targeted organised and violent criminal groups.
"We use a wide range of techniques to infiltrate such groups, and will not comment on the nature or number of those techniques. Police policy is clear - police will not deceive the judiciary. So, in the event of an undercover officer being charged with an offence, the courts will be informed in an appropriate way."
The Sunday Star-Times approached Minister for Courts Chester Borrows yesterday but he said through a spokesman he would "not be able to comment on the case in time for your story".
- © Fairfax NZ News
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