A major New Zealand crime figure has been acquitted of aiding or encouraging a $20 million meth import scheme that was orchestrated by two of his trusted henchmen from prison cells next to his own.
The gang boss, who still can’t be identified for legal reasons, appeared in Auckland District Court via audio-video feed today, less than two weeks after closing addresses in his judge-alone trial.
Judge Belinda Sellars had initially scheduled a date for mid-October to announce her decision, but the hearing was rescheduled due to her quick verdict.
Today’s appearance lasted less than five minutes, with the judge informing the defendant directly that she had found him not guilty of all three charges: importing and possessing methamphetamine for supply – both of which carry a potential punishment of up to life imprisonment – and a lesser charge of participating in an organised criminal group.
“Thank you, your honour. Thank you, your honour,” the defendant repeated before pausing to put both hands over his face then exhale deeply.
The gang boss’ celebration over the legal victory was somewhat muted. He remains in prison for a previous drug trafficking conviction.
The judge did not recite her reasons for her decision, instead distributing a 22-page written decision to lawyers and media.
Prosecutors had acknowledged from the outset of the trial last month that their case was entirely circumstantial.
The defendant’s underlings had earlier pleaded guilty to the scheme, which involved smuggling roughly 200kg of the drug into New Zealand secreted inside farming equipment. They did not, however, implicate their leader.
Investigators found nothing of interest during a search of the boss’ prison cell and he was not mentioned in encrypted messaging app chats in which others outside prison were instructed how to handle the illicit shipment.
But prosecutors Henry Steele and Dennis Dow argued the judge could reach an “obvious and irresistible inference” that the defendant was also involved after considering four factors.
There was his leadership role, his proximity to the guilty underlings, his earlier authorship of a plan to tax all gang members’ proceeds from criminal underworld schemes and CCTV of him doing a chair dance soon after it appeared – erroneously, it would turn out – that the import had successfully evaded the attention of authorities.
Prison security footage played repeatedly during the trial showed the two lower-ranking gang members, who spent most of their days by the leader’s side, ducking into a cell on the day the farm equipment was delivered to a safe house. The leader, meanwhile, continued to play chess on a prison courtyard picnic bench.
Timestamps on the CCTV and encrypted messages matched up, showing the associates’ time in the cell was spent typing out orders via a smartphone that had been smuggled into the prison.
The messages ceased after the last piece of farm equipment arrived. At that point, the plan seemed to have gone off without a hitch. It wouldn’t be until later that day, when police swooped in, that some of those involved would realise the safe house had been under surveillance the whole time.
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.
So was the dance to celebrate a massive financial windfall for the gang?
Defence lawyer Ron Mansfield KC strongly disagreed that would be a safe assumption.
It could have just as easily been to celebrate an impressive chess move or a response to ribbing from his underling, he said, describing his client as always outgoing and animated.
“None of these inferences are available,” Mansfield told the judge during his closing address. “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.”
He also downplayed prosecutors’ assertions that it would be highly unlikely for the boss to be ignorant of the scheme given his strong leadership role and his taxation mandate. A gang decree in the defendant’s handwriting spelt out how “major players” within the gang would be taxed 5% for all criminal proceeds and lesser members would be taxed 10%.
By that calculation, the gang as a whole stood to potentially receive roughly $1 million if the import was a success. That could then be allocated towards things like legal defence funds, bolstering gun caches and supporting the families of imprisoned members, the prosecutors noted.
As the leader of the group, the defendant would need to know when the next major boost of cash was expected to arrive, the prosecutors argued.
But Mansfield argued that theory failed to take into account that the leader would have been eligible for parole soon around the time of the import. He had every reason to want to stay straight so he could see his family again, the defence lawyer argued.
The Crown case, he argued, lacked “any evidential foundation” that could lead to finding the leader guilty beyond a reasonable doubt.
In her written decision, Judge Sellars said she accepted that “objectively viewed an importation of 200kg of can only be described as ‘significant’” for the gang. But she was not convinced the two underlings required approval from the boss.
“There is no reference in the machine gig chat to a third senior person who must be consulted or advised,” she noted. “Whilst it could be argued that could be a result of the parties trying to protect a senior person, I note that the ... messages were encrypted and the participants in the conversation do not appear to speak in a guarded or coded way.”
She recalled one of the underlings taking charge, telling others via the chat group at one point: “I’m gonna write the plan real soon.”
The internal taxing system created by the defendant does not overcome “the lack of evidence about the genesis of the importation”, she said.
She also questioned why there was no CCTV footage showing the defendant worried or acting otherwise unusually the next morning after the police raid, when it would have been obvious to all involved due to the sudden silence in the encrypted chat group that something had gone wrong.
“... His demeanour as depicted in the CCTV appears to remain consistent,” the judge wrote. “There is nothing to indicate disappointment or concern.
“The Crown argues this is because such failures are simply part of the business. However, on the Crown case if [the defendant] ‘rejoices’ when he learns of the importation’s apparent success, one would logically expect some reaction to its failure.”
As for the chair dance that received so much scrutiny, the judge said it was understandable why it stuck out to police so much that it led to him being charged. But it did not appear to be especially unusual behaviour when footage from the three days prior was also reviewed, she said.
Judge Sellars emphasised in her decision that she endeavoured to put aside any feelings of prejudice or sympathy.
“I note that this is particularly important in this case due to [the defendant’s] involvement and position in the [gang],” she said.
The Crown, she recalled, had essentially urged her to “apply common sense”.
“The facts and circumstances raise a high degree of suspicion,” she agreed.
“However, I have found the weight of this evidence is limited given the alternative inferences available,” the judge concluded. “Just because ‘there is no good reason’ why [the defendant] would not have been told about the importation and good reasons why he would have been told, I cannot leap to an assumption that he was told from the evidence before me.
“I cannot infer [his] knowledge from the available evidence to the standard of beyond a reasonable doubt.”
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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