OPINION: The decision of Justice Simon France to throw out a prosecution against 21 members of the Red Devils motorcycle gang in Nelson because of what the judge found to be misconduct by police officers in an undercover operation is a sharp rebuke to police.
While acquitting police of bad faith and accepting "without question" that they had at no stage intended to mislead, the judge nonetheless found the officers, including a very senior detective superintendent, had engaged in conduct that amounted to an abuse of the processes of the court.
In what appears to be a rather harsh observation, he also found that the police belief that they had a sign-off from a District Court judge for their actions involved "a significant measure of recklessness".
That the judge thought the misconduct warranted allowing 21 members of what police had alleged was an organised criminal group to walk free indicates the seriousness with which he viewed it. But the judgment also raises as many serious questions as it attempts to answer - about the conduct of police undercover operations in particular and, more generally, about the appropriate judicial response to any police misconduct that may occur.
Police are said to be considering the judgment. Given its implications, it is undoubtedly one that should be put before a higher court.
The case appears to be unique in New Zealand. It arose because police believed the Red Devils aspired to become a chapter of the Hell's Angels, a gang whose chapters overseas are notorious for their involvement in large-scale dealing in hard drugs. An undercover officer was assigned to infiltrate the gang and, to allay the gang's suspicions about him, police brought a criminal charge against him. This involved the concoction of a false search warrant and the later deception of counsel and judges as the matter proceeded.
There is no doubt that the procedure skirted the edges of what is permissible and that no doubt was why the officer in charge of the case involved the then Chief District Court Judge before going ahead.
Justice France found that that judge (who is now dead) was not adequately informed about the operation but, because he appears to have raised no questions, the police belief they had his approval is an understandable one.
They would also have been reinforced in their belief that what they were doing was allowable because a procedure allowing undercover officers to be charged under false names has long existed, although as the judgment points out there is no statutory authority permitting it.
Murkiness of this kind is unsatisfactory. The increasing sophistication of criminal activity requires increasingly sophisticated techniques to combat it. But the boundaries should be clear and not have to be sorted out by trial judges second-guessing after the fact.
Having found the misconduct, Justice France also decided that, to protect the integrity of court processes, the entire case had to be dismissed. This is despite no-one being seriously misled in any material way and no defendant's rights being infringed. It is a deeply unpalatable result.
Whether it is appropriate that, because of police failures, defendants should go free without the charges against them being properly tested is, to say the least, arguable. It was not an open-and-shut judgment in this case in the High Court and it too deserves the careful scrutiny of a higher court.
- © Fairfax NZ News