Could a jailed gang leader’s happy dance – caught on prison yard CCTV – help prove his involvement in a $20 million meth import scheme?
That is one of the questions an Auckland District Court judge has been tasked with deciding after a trial that concluded this week in which the defendant insisted he knew nothing of the massive importation.
The judge will also have to decide if his claim of ignorance is credible.
Two other gang associates, imprisoned in the same unit as the boss and seen on CCTV spending large portions of each day by his side, have admitted to having orchestrated the import using smuggled cellphones. They did not implicate their leader when pleading guilty.
The defendant, whose name and gang affiliation cannot yet be identified for legal reasons, has been described as a major figure in the criminal underworld.
“Just know whatever you say goes,” he wrote in an intercepted letter from prison to an overseas criminal – the only person thought to rank above him. “New Zealand is under my command and I’m under yours.”
Prosecutors argued this week that it beggars belief he wouldn’t have known about and encouraged the nearly 200kg import, which arrived secreted inside farming equipment.
Lawyers Henry Steele and Dennis Dow pointed out the gang boss had earlier authored and implemented a policy for taxing 5-10% of members’ criminal earnings. As a result, the gang as a whole stood to gain roughly $1m in taxed profits had the drugs made it to the streets, the prosecutors alleged.
“I’ve put a system in place to protect our future and uprising wars in the underworld,” the defendant wrote in a handwritten draft of the policy before a final version was distributed to gang members on the outside via a smuggled cellphone.
“We are not getting any younger, but we need to get wiser and smart to adapt with the new police technology that they have in place.”
With his own extensive underworld experience, he boasted, he could “see moves before they are made”.
The tax would go towards a variety of projects in the “underworld” and “legal world”, he wrote, including legal fees, looking after the families of imprisoned members and bolstering the gang’s weapons arsenal.
Those who didn’t contribute after major scores would face fines and demotion within the gang.
Prosecutors acknowledged to Judge Belinda Sellars this week that their case is entirely circumstantial.
The boss did not appear in any of the encrypted chat groups, extracted from phones seized by police, that were dedicated to pulling off the scheme. And a search of the man’s prison cell uncovered nothing of relevance.
But they did have a piece of evidence that they said bolstered the “obvious and irresistible inference” of his involvement: CCTV footage from the prison yard showing what was characterised as a celebratory chair dance by the defendant within minutes of the drug-laden farm equipment’s arrival at a safe house.
CCTV footage showed the gang associates who admitted involvement going into a nearby cell as the boss continued to play chess on a picnic bench outside. Timestamps on the CCTV and encrypted messages matched up, showing the associates’ time in the cell was spent typing out orders to those on the outside tasked with receiving the farm equipment and dismantling it to extract the drugs.
The messages ceased after the last piece of farm equipment arrived, with the impression that all had gone according to plan. In actuality, it hadn’t. Undercover officers were monitoring the property, making plans to swoop in and make arrests later that day.
Twenty-three minutes after the last message, one of the two associates walked up to the defendant and appeared to briefly interrupt his chess game.
There’s no audio to the footage but he must have been telling the gang boss something along the lines of, “It’s done”, prosecutors speculated.
The boss shuffled his feet and playfully shadow-boxed in his seat as the other man, doing an exuberant jig of his own, walked away.
Defence lawyer Ron Mansfield, KC, however, pointed to multiple other times when the boss was seen to dance in his seat as he played chess. His client is a gregarious person prone to jaunty expressions, he said.
In any event, it’s too much of a stretch to treat the fleeting moment as anything of substance to the Crown’s case when he as easily could have been celebrating a deft chess move or responding to a joke, Mansfield argued.
The Crown’s case, focusing on the man’s leadership role, his authorship of the taxing plan and his dance, lacks “any evidential foundation” that could lead to finding him guilty beyond a reasonable doubt, Mansfield argued.
“None of these inferences are available,” he told the judge. “It just requires speculation that is untenable.
“We’re stretching the work of inferences here to the worst extreme, in my submission, and it shouldn’t be permitted. There needs to be real and reliable evidence, and there’s simply not.”
Mansfield said his client would have been up for parole soon at the time of the import and would have desperately wanted to return to his family, many of whom appeared in the court gallery during the closing remarks. That motivated him to stay clean, he said.
“You can’t just infer that because [he] was the president he wants to be included in offending while incarcerated,” Mansfield said, pointing out that the gang had designated another member to take charge on the outside while the leader was behind bars.
Just because the tax policy required money to be funnelled back into the gang after profits were realised, it can’t be assumed gang leadership would be involved in the planning stages of the many members’ myriad potential schemes, Mansfield argued.
“There’s no requirement of that at all,” he said, suggesting that the payments to the gang could be submitted on a no-questions-asked basis.
But prosecutors countered that the defence explanations of ignorance defy common sense, especially when considering the defendant spent every day imprisoned beside the two admittedly guilty underlings. And as leader, they said, “he needs to know where the cash flow is coming from”.
“It is inconceivable that he would not have been told,” Steele said. “There was no good reason not to tell him, and every reason to tell him.”
He pointed to the evidence a week earlier of gang expert Ray Sunkel, a former detective sergeant who oversaw the motorcycle gang unit in the National Organised Crime Group – a police speciality unit focused on long-term investigations of gangs.
“The president is the figurehead of the gang or the chapter,” said Sunkel, who left police in March after a 25-year career. “All decisions, good or bad, would usually go through the president.”
He guided the judge through a treasure trove of seized gang documents, many of which have never before been made public.
They included the gang structure and goals, as well as the duties of the top echelon lieutenants.
Sunkel said he had met with the defendant on numerous occasions as part of his previous police job.
“It’s clear that [the defendant] maintains the overall leadership role of the [gang] despite his incarceration,” he said. “It’s clear [he] is a strong and direct leader who is sure of what he wants.
“It is clear that his members defer to him.”
Among the documents submitted as evidence of the defendant’s continued leadership role was a recorded Christmas message that he directed to be distributed to all members.
“Growth is the only evidence of life, and we don’t grow when things are easy,” he said in the speech, which at some points took on the cadence of spoken word poetry.
“We grow when we are faced with challenges. That’s what makes life interesting: overcoming challenges. It’s what makes life meaningful.”
Prosecutors also pointed to a note in his handwriting discovered in a fellow gang member’s cell, which read in part: “Communication is key – making sure everybody is on the same page.”
The gang leader could face up to life imprisonment, with the new sentences stacked on top of his current one, if he is found guilty of the importation charges. He also faces a charge of participating in organised criminal activity, punishable by up to 10 years’ imprisonment.
Judge Sellars announced at the end of the week-long hearing that she would reserve her decision. A follow-up hearing to announce the verdict has been scheduled for October.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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