Watchdog says arrest illegal

Michael Gregory and his father, Stan, are still waiting for justice after eight years and having to bring a private prosecution. Photo / Herald on Sunday

A police officer who arrested and pepper-sprayed an innocent man acted illegally, according to a police watchdog.

Police broke into Michael Gregory's home, emptied a can of pepper spray into his eyes and arrested him for crimes he didn't commit. The charges were later dropped, but only after his father hired a private investigator.

Now the Independent Police Conduct Authority has upheld an internal disciplinary report which ruled that the arrest was unlawful; any physical evidence obtained at the scene was inadmissible in court; the use of pepper spray was unnecessary and Mr Gregory's detention was unlawful.

The report also criticised officers for a lack of leadership and failing to investigate the burglary properly.

Despite the critical report, no charges were laid and no disciplinary action taken against the officers involved in Michael Gregory's arrest.

So his father Stan Gregory filed a private prosecution in 2006 against the four police officers and the Attorney-General.

Three years on, the case has yet to go to trial. Mr Gregory wanted the case to be heard by judge and jury, which the Crown opposed. Weekend Herald inquiries have found that the Crown has spent nearly $140,000 of taxpayers' money to deny him a trial by jury.

The Police Association also paid barrister Todd Simmonds to represent the four police officers.

Now, the Supreme Court has dismissed Mr Gregory's appeal against an earlier decision of the Court of Appeal.

The Court of Appeal agreed with solicitor Mark Davies, acting on behalf of the Attorney-General, that a jury would be unable to grapple with the difficult points of law in the case.

The civil proceedings will now be heard by a judge alone in the High Court at Auckland in September, a decision that has devastated the father and son, who have spent $120,000 on the case.

"I'm so frustrated how the legal system in our country has been so determined to look after its own," said Stan Gregory.

Police and court documents obtained by the Weekend Herald have found discrepancies in the story of the officer at the centre of the case.

According to the internal police inquiry filed to the IPCA, Constable Thomas Gollan first said he had entered the house through a window, resulting in an altercation with Mr Gregory and the use of the pepper spray.

Now, defence submissions to the civil case say Mr Gregory resisted arrest at the window, so Mr Gollan sprayed him.

The disciplinary report concluded the arrest, use of pepper spray and detention of Michael Gregory were unlawful. But submissions filed by the defence say Mr Gregory resisted arrest at the window, so Mr Gollan pepper-sprayed him and then climbed through the window, wrestled with him and handcuffed him.

Lawyers for the police and the Attorney-General have successfully opposed the police report being used as evidence in the civil case.

FIGHT FOR JUSTICE

June 2001: Police arrest Michael Gregory on suspicion of burglary. The charges are later dropped.
August 2002: Internal police report finds officers acted illegally in arrest and pepper spraying of Mr Gregory.
September 2006: Father Stan Gregory takes a private prosecution against police.
March 2009: IPCA upholds the critical internal police report.
March 2009: Supreme Court rules that trial to be heard by judge alone.
September 2009: Private prosecution to take place.