Abuse of procedure shows total misunderstanding of the courts' function.
For the free-wheeling detectives on American television shows, the ends always seem to justify the means. The capture and conviction of a criminal is all-important, over-riding any doubts about the methods used to achieve that. It appears the Police Association's Greg O'Connor may have been watching rather too many of these fantasy-laden programmes. How else to explain his extraordinary comment that a judge's decision to throw out charges against 21 people associated with a Nelson motorcycle gang was a "slap in the face" for an undercover officer involved in the case? In fact, so comprehensively were normal procedures abused during Operation Explorer that Justice Simon France's trenchant ruling should be the catalyst for further inquiries into the police's conduct.
Read the full judgement
The abuse began when police bosses became concerned that the undercover officer, known in the Red Devils motorcycle gang as Michael Wiremu Wilson, was about to be exposed. To strengthen his credibility, the police arranged for a fake search warrant of his lock-up in which they had placed apparently stolen equipment and drug paraphernalia. Police forged an illegible signature of a court deputy registrar and arrested Wilson. He appeared several times before judges who all believed they were dealing with a genuine case.
Two officers, Detective Superintendent Rod Drew and Senior Sergeant Warren Olsson, had visited the then Chief District Court Judge, Russell Johnston, and believed they had his permission to go through with the ruse. Justice France found, however, that a letter they had given to Judge Johnston was "wholly inadequate" to alert him to the realities of what was involved. Equally, the police claimed to be following a protocol for false charge scenarios that did not then exist. One was written afterwards to reflect the police perception of what had now been established as a result of this visit, the first ever to a chief judge. "When one realises the protocol is a fiction, the inadequacy of the letter [to Judge Johnston] becomes obvious," Justice France says.
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He adds that the police were guilty of "a significant deceit" in not seeking legal advice about their activities. This traversed the initial use of a false warrant, the plan to lay false charges using a constable swearing on oath suspicion of a crime he knew not to have occurred, the obligations of disclosure to Judge Johnston if he was to be approached, the appropriateness of seeking to do this by meeting him in his chambers, and the correctness of using the court's processes as an investigative aid.
Perhaps the most alarming aspect of the police conduct lies in the misunderstanding of the courts' function. They are not a collaborator in criminal investigations. As Justice France says: "It is no function of the court to facilitate a police investigation by lending its processes to the false creation of street credibility. The court is independent, and sworn to treat all who come before it equally and without favour."
The police actions were doubtless well-intentioned. But if any slaps in the face have been delivered, they are to members of the judiciary and public confidence in the integrity of the justice system. So much so that Operation Explorer must be the subject of an Independent Police Conduct Authority inquiry. More immediately, the Police Commissioner must offer a reassurance that steps have been taken to ensure such misconduct is not repeated. And any thought of appealing against Justice France's ruling should be forgotten. Taking that course would add insult to injury.