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Supreme Court says Red Devils gang case should have gone to trial

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  • Supreme Court says Red Devils gang case should have gone to trial




    The case against the former Red Devils motorcycle gang in Nelson should have gone to trial, according to New Zealand's highest court, h
    owever, the country's top judge has broken ranks with the Supreme Court, saying that allowing the trial to continue would be a "serious affront to the criminal justice system".

    The opinion of the Supreme Court and Chief Justice, Dame Sian Elias, is of no consequence now. The case against the Red Devils, known as Operation Explorer, is no more.In June last year, the High Court ruled that evidence for a majority of the 148 charges against the 21 defendants was improperly obtained by police. The Crown decided not to pursue the remaining charges and did not appeal the High Court ruling.

    The case was dropped and the defendants will not stand trial, however, the Supreme Court judgement might provide some vindication for the police investigation team, which was scolded by High Court judges Simon France and David Collins, for its handling of the undercover operation.

    The Supreme Court found that while the police misconduct was serious "this is not one of those rare cases where a stay should be granted". It agreed with the Court of Appeal decision in 2013, which overturned Justice France's stay, ruling that the link between the police misconduct and any trial was weak and public interest favoured a trial going ahead.

    Justices France and Collins both found serious fault with the police investigation, particularly the use of a fake warrant to arrest an undercover officer and the "bogus" prosecution in court. The scenario was to protect the undercover officer, who was under suspicion, and bolster his credibility within the gang. However, defence lawyers successfully argued that evidence for many of the charges would not have been obtained if not for the possibly criminal police misconduct.

    Writing on behalf of a majority of the Supreme Court last month, Justice Terence Arnold said such behaviour "is unacceptable and constitutes serious misconduct". "We well understand that the police face difficulties in investigating certain types of offending, including organised drug offending. But that cannot justify preparing and using bogus search warrants or bringing bogus prosecutions in the courts."

    However, he said there was no evidence that the police misconduct was systemic. "There was no bad faith, there is no likelihood of a repetition of the conduct at issue, the scenario simply facilitated the continued gathering of evidence of offending which occurred independently of the police misconduct."

    Justice Arnold said it would have been sufficient for the High Court to exclude evidence for the less serious charges and allow evidence for the more serious charges to be heard at trial. In contrast, Chief Justice Dame Sian said the stay ordered by Justice France in 2012 was "fully justified" and the Court of Appeal was wrong to overturn it.

    "What happened [in Operation Explorer] was inconsistent with minimum standards of criminal justice. To allow the trial to continue before a tribunal compromised in this way is a serious affront to the criminal justice system."


    Credit: Nelson Mail
    Attached Files

    • Q. C.
      #5
      Q. C. commented
      Editing a comment
      Originally posted by FairHearing
      Q.C., could you point to the judgment that concluded that "serious misconduct" is not a criminal act unless it is "systemic or conducted in bad faith"? If the judgment isn't on the Internet, can you post a copy by any chance? Thanks!
      FairHearing: Trevor John Momo Wilson v The Queen [2015] NZSC 189 (14 December 2015). See NZLII databases

    • FairHearing
      #6
      FairHearing commented
      Editing a comment
      Originally posted by Q. C.
      FairHearing: Trevor John Momo Wilson v The Queen [2015] NZSC 189 (14 December 2015). See NZLII databases
      I see, the quote isn't exact, that's why I couldn't find it. But the "systemic and ongoing problem" is good, in the sense that it applies to the SC itself. Do you know why Blanchard was on the panel? The hearing was on 7 July 2015. I am pretty sure he wasn't listed as a SC judge on the Ministry of Justice website at the time.

    • Q. C.
      #7
      Q. C. commented
      Editing a comment
      Originally posted by FairHearing
      ... Do you know why Blanchard was on the panel? The hearing was on 7 July 2015. I am pretty sure he wasn't listed as a SC judge on the Ministry of Justice website at the time.
      s. 23 of the Supreme Court Act allows the appointment of a retired SC judge to be appointed an acting SC Judge, if he is under 75 years old. Blanchard was most likely on the panel for that reason.
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