Mr Big strikes again ...

Tawera Wichman was caught using a "Mr Big" undercover trap. The Supreme Court (narrowly) said that this was OK - but that there are still problems with how the Police can mount such operations. And now I can tell you all this freely and openly.

As can (finally) now be reported, Tawera Wichman has been jailed for 3 years, 10 months for shaking his 11 month old son, Teegan Tairoa-Wichman, to death some seven years ago. What has been kept out of the news until now is that Wichman only was arrested and charged back in May 2013 after the police ran a long and involved "Mr Big" sting on him. That sting resulted in him confessing to causing the child's death - a statement that then went all the way to the Supreme Court in order to determine if it ought to be allowed into court as evidence.

I'll come to that Supreme Court decision in due course, but before then there's a few matters that Wichman's sentencing (and consequent lifting of non-publication orders that had been in place regarding the case) enable to be clarified. First, and most obviously, the lifting of these orders means I don't have to resort to cryptic hints like this, or teasing endings like this, when discussing the matter. Instead, I can talk about it openly.

Second, the reporting of Wichman helps to put in context the High Court's decision last month to lift non-publication orders on the use of the Mr Big technique to convict Kamal Reddy. As outlined in the RNZ report on that case,

The Crown and the police wanted the undercover operation suppressed to retain its efficacy. That was opposed by the media, including RNZ, on the grounds that trials should be held in public and the people of New Zealand had a right to know what the police were doing in their name.

What we (as in, the Court and reporters and various others with inside knowledge) knew at that time was that the Supreme Court's Wichman decision was going to be made public in the not-too-distant future. (The Crown and the police accepted that this was the case - it didn't even try to have the Supreme Court's decision kept permanently secret). And that decision contains very fulsome descriptions of just how the Mr Big investigative technique operates. Which made the High Court judge's decision a heck of a lot easier - for what's the point in suppressing information about how "Mr Big" was used in Reddy when it'll all be out in the open in the near future anyway?

Third, the fact Wichman eventually plead guilty to manslaughter helps to alleviate some of the concerns about how the Mr Big ruse was used against him. Specifically, I (and two of the five Supreme Court judges) had real concerns about the reliability of Wichman's original confession to the crime.

Here's how the NZ Herald describes the crucial part of the operation:

In a secretly recorded interview in a Dunedin apartment - the southern location carefully chosen to isolate Wichman - [Mr Big] told Wichman the gang lived by rules valuing honesty and trust.

He told him he knew about his troubles with the police but that he could fix the problem and didn't care what Wichman had done.

He wanted Wichman on gang duty permanently but needed reassurances before a big job in Melbourne.

He was told there was no pressure to stay if he didn't want to but [play acting] bent cop "CJ" had checked him out and found something about the "death of a kid".

Wichman started to, slowly, come clean, although at first he stuck to the story he'd told police - that he shook the child because she had had a choking fit and stopped breathing and he was trying to resuscitate her.

"My daughter got um sick, she, she got hurt, you know. Someone hurt her and ah yeah ah, the night that um I found out about it all, um, I was looking after the kids and ah she, she stopped breathing right next to me and I had to perform CPR on her."

He told [Mr Big] about CYF involvement with the twins before the discussion moved to rugby league and other people.

Then came the clincher. [Mr Big] again spoke about the organisation's values and said if Wichman made any mistakes, he needed to say.

But he said Wichman didn't have to if he wasn't comfortable.

As the conversation slowly developed, [Mr Big] said he had a medical report about Teegan that CJ gave him.

Wichman slowly opened up, admitting giving Teegan a "pretty good shake" on March 4, 2009, and one time before that. He said he did so because she was crying and he couldn't comfort her.

Wichman continued, saying he'd not been totally frank to the police. He was upset and [Mr Big] gave him a tissue.

Wichman apologised for lying to [Mr Big] initially and thanked him for the chance to confide.

Note what is missing from this account. There is nothing to independently corroborate what Wichman says happened (as opposed to the Kamal Reddy case, where he not only confessed to murder but then led the police straight to where the bodies were buried.) And also note that Wichman said he had killed the child only after it was clear "Mr Big" didn't really believe his earlier denials. And also note the incentives on Wichman to tell "Mr Big" what it seems "Mr Big" really wants to hear - entry into a criminal gang that offers both respect and financial benefits, as well as possible help from the (play acting) corrupt cop to make the ongoing police interest in the case disappear. Whereas if he keeps denying things and "Mr Big" keeps thinking he's lying, then he's out on his ear.

So I'm relieved that Wichman's prison sentence is the result of his pleading guilty, rather than having a jury convict him pretty much on the sole basis of a confession obtained in such circumstances.

Finally, there's that Supreme Court decision on whether confessions obtained by Mr Big ruses ought to be allowed to be used as evidence at all. Unfortunately, I can't really do justice to it here - for one thing it runs to a mammoth 350 pages (yes - you read that right). For another, there's 3 separate judgments involved;

  • 3 judges agreeing that Wichman's confession in particular, and such confessions generally, can be used (but still may be excluded in specific cases),
  • two separate dissents setting out at great length (but with different emphasis) why Wichman's confession in particular (and perhaps all such confessions generally) shouldn't be able to be used.

[Update: This story does a good job of summarising the case's journey through the courts.]

But there is one point from the majority judgment - the one allowing Wichman's confession in as evidence - that I do want to quote. It comes from near the end of that judgment, after the those three judges consider the general "propriety" of using the "Mr Big" technique against Wichman. While they were happy with how it was used in his case, they sounded this important warning (paras 126-127):

Experience has shown that there is potential for undercover operations to go awry, particularly where and undercover officer becomes a part of the life of a suspect or the associate of a suspect in respects that are very intrusive. Such operations may have detrimental effects on the suspect. There has been much controversy as to this in the United Kingdom particularly where male undercover officers have formed long-term sexual relationships with female members of the group under investigation which in some instances have resulted in children. A similar situation (involving sexual relationships but not children) has arisen in New Zealand. There are also ... different issues ... as to the nature of the steps taken to avert suspicion of ... undercover officers. Human nature being what it is, the police officers who design and run undercover operations are likely to be primarily focused on securing a successful outcome and there is an associated risk, which has sometimes crystallised, that other important and countervailing considerations are not sufficiently taken into account.

The case by case approach which this Court must take in relation to the appropriateness of particular police practices is not well suited to the establishment of general guidelines as to the circumstances in which a particular investigatory technique is deployed. It is of note that court sanction in the form of a warrant is required for police investigations which are far less intrusive than a Mr Big operation. Against that background there may be some sense in devising a system (perhaps involving the courts) under which criteria for the deployment of such techniques are developed and perhaps for some form of supervision (perhaps in the form of a warrant process) to ensure that such considerations are properly weighed, where a proposed operation will be intrusive and may have damaging effects as far as the suspect is concerned.

Let's see whether the executive branch hears this message and looks to create the sorts of legislative safeguards that are suggested.