Judge's rebuke spurs police inquiry

By CATHERINE MASTERS and EUGENE BINGHAM

The police have launched an internal investigation after a High Court judge criticised officers for a "disturbing" attempt to conceal their failure to read a kidnapping suspect his legal rights.

The suspect had complained that he had not been given a caution and advised of his rights. Police swore under oath he had, but Justice John Laurenson said he did not believe it had been given.

One of the officers investigating the alleged kidnapping of a Chinese woman last May was Detective Sergeant Ivan Trethowen, the crime co-ordinator for Auckland City.

He has since been transferred to Kumeu at the rank of sergeant, but police spokesman Jayson Rhodes said the move was not connected to issues raised in court.

"The comments by the judge prompted an immediate internal investigation by police, which is still ongoing and has been referred to the Police Complaints Authority," said Mr Rhodes.

"When the investigation is complete and depending on the outcome, then the district commander for North Shore/Waitakere/Rodney [Roger Carson] will be in a position to review the sergeant's situation."

Mr Trethowen declined to comment in detail and referred questions to Mr Rhodes.

Tao Zhu and another man were charged with kidnapping but the trial last month collapsed when the alleged victim's evidence was questioned. Mr Zhu was discharged and allowed to go free.

Before the case got to trial, Justice Laurenson had ruled that an admission and other information given by Mr Zhu in early interviews with the police were inadmissible.

He said irregularities had resulted in evidence being produced in court which incorrectly stated the accused had received a caution and been advised of the Bill of Rights.

There had also been a failure to accept Mr Zhu was not readily able to understand English and a "deliberate attempt" to ignore his rights at the outset in the interests of finding the victim.

Although sympathetic to the fact that Mr Trethowen had been under a great deal of pressure and that finding the victim had been paramount that day, Justice Laurenson said the rights to silence and legal advice were fundamental safeguards in the criminal justice system.

The initial failure could be excused if the police had accepted that incriminating evidence would not be admissible, but the steps which followed, apparently to justify its inclusion, were disturbing and "quite unacceptable".

If the defence counsel had not identified the irregularities there would have been no reason to exclude any of the accused's admissions and "this would have amounted to nothing less than a miscarriage of justice".

The ruling says the Chinese woman had telephoned a friend in Christchurch saying she had been kidnapped and arranging for $10,000 to be paid to her captors. She used a cellphone registered to Mr Zhu.

The friend called the Christchurch police and the information was passed on to Auckland officers, who obtained a search warrant for a house in Northcote where they found Mr Zhu and his cellphone.

Mr Zhu was interviewed there and again at the Auckland Central police station, where he was read his rights and the interview videotaped.

But Mr Zhu complained he was not cautioned at the outset and this had tainted the later video interview.

The alleged kidnapping had taken place on May 21 but on May 22 Mr Trethowen prepared a job sheet which made no reference to the Bill of Rights and caution.

A sworn court document said that when at the Northcote house Mr Zhu was read his rights and told he had the right to consult a lawyer.

But no record was made by Mr Trethowen when compiling his notebook and there was no reference to it in the job sheet.

"It is not unreasonable to accept that he might well have forgotten to note in his notebook that the caution and Bill of Rights had been given, and then add this, as he said, at the end of his shift when reviewing entries made during the day."

But the judge said he believed the note was not made at the end of Mr Trethowen's shift because it would presumably have been included in the job sheet prepared by him the next day from his notebook.

"I can see no other explanation other than it was added well after May 21, 2003, and I am left with no alternative but to conclude it was done in an attempt to disguise the true position. I cannot see any basis on which it could be excused."

Auckland University senior law lecturer Scott Optican said the case raised several issues, including whether the police could legitimately dispense with their obligations under the Bill of Rights in a life-and-death or emergency situation.

It also showed that the High Court would come down hard on police when breaches of the bill were covered up.