Court News

Week ending Wednesday, October 7, 2009

Operation Slush detective accused of bias
Detective work challenged in trial
Court allows change to interim Toa order

Operation Slush detective accused of bias

The lead police investigator of Operation Slush was being cross-examined by co-defendant and lawyer Norman George in the High Court yesterday.

George accused detective inspector Mark Franklin of being biased and not thorough during his inquiries.

“Did you ever consult with cabinet with their role of purchasing capital island machinery? Did you ever follow through the authority lines in terms of who does what?” George asked. “A minister of cabinet, a secretary of cabinet, maybe a senior lawyer who knows cabinet procedure – where did you establish the business of authority?”

Franklin said he made an effort to interview the financial secretary, public service commissioner and director of audit.

“People who have a good understanding of those principles,” Franklin said.

George asked why he didn’t get a base line of authority and why he didn’t get a flow chart of who does what.

“I put it to you that your case has been lopsided, that you gave too much authority to the outer islands like an aircraft flying on one wing.”

Franklin said it was common sense that those working on the island and who would work with the crusher were in the best position to make the decision of what machinery was needed.

Parts of Junior Areai-Enoka’s affidavit were read out in court. His statement was made while being interviewed by Franklin who would type his answers on to the computer.

Areai-Enoka stated that George told him whatever he did make sure it was “fireproof” – be secretive.

“Is that your word fireproof?” George asked.

Franklin said that was what he said and he typed it.

“Apart from what he said, did you orally get any secure collaborative evidence with Junior?”George said.

Franklin replied the court had heard the evidence of the witness and the documents.

The affidavit was further read in court where Areai-Enoka said he had a private conversation with George about the alleged plans to gain payments from the outer machinery purchasing. When questioned, Franklin said he got the impression the conversation took place at George’s ministerial office.

“At all times there was very little or no opportunity to set aside and have this secret conversation.”

Franklin said there was no time mentioned in the evidence, but no matter how busy people are, they had the opportunity to be alone if they wanted to be.

“The reality is we don’t have a date or a time. I interviewed him four years after the event and clearly nothing was written down because of his need to be secretive,” Franklin said.

“You don’t have a date, time or place – all you have is this man who has been convicted in the criminal court telling you this and you just accepted it?” George asked.

Franklin said he made inquiries and gave George an opportunity to answer questions.Further questioning was made about Franklin believing what Areai-Enoka said.

“So you consider Junior to be a truthful, honest and reliable witness,” George asked. Franklin said yes before he was accused of having “incredible low standards”.

“Twenty-seven years in the police criminal investigation branch, my view is that he was credible and through my subsequent inquiries I made,” he said.

“Even though he commited pergury in this trial?” George asked.

“Yes,” he replied.

Detective work challenged in trial

A documentary was screened last week as defence evidence during the Operation Slush trial.

Businessman Chris Vaile along with lawyer Norman George and former Atiu island secretary Chris Koronui are accused of a raft of conspiracy and corruption charges dating back from 1999 to 2002.

George submitted a TVNZ Sunday documentary as part of his cross-examination of detective inspector Mark Frank-lin.

It showed allegations of police bullying, inadequacies and not following proper procedure.

The documentary was of an investigation into the murder of Kathy Sheffield who died in Northland, New Zealand, in 1994. Franklin had been involved in the case.

Sheffield’s body was found in a shallow grave on her boyfriend Lawrence ‘Borrie’ Lloyd’s property in the Far North. He confessed and pleaded guilty to manslaughter saying he was too drunk to remember if he’d killed her or not. After spending seven years in jail he was released before the court of appeal ruling the police had the wrong man.

Lloyd’s nephew Noel Rogers confessed to the killing but a jury later found him not guilty.

The documentary showed a recorded phone call which had Franklin speaking with the victim’s mother.

Last week the Cook Islands Court heard how three police inquiries were needed with George accusing Franklin of inadequate investigating.

“I should make it clear I was never the officer in charge,” Franklin said.

He said during the time of the second investigation took place he was in the Cook Islands working on the Chambers homicide.

“When I returned my involvement was limited to sitting at my desk reading witness statements,” he said.

“Obviously the phone call was based on my assessment I had at hand at the time.”

George asked him if he had visited the crime scene or interviewed Lloyd.

Franklin replied his role was minimal repeating he wasn’t the officer in charge.

“What also came out (of the documentary) was the police method of taking statements,” George said. “You’ve taken a lot of statements, you would agree most were dominated by your own opinion?”

Franklin disagreed.

“Your interpretation of your events?”

Again the witness said, ‘no’.

George said that in the programme Lloyd says he was bullied by police to sign the confession. He asked whether that was one of the police’s tactics in order to gain a confession.

“In the 27 years I had in police, 24 years in criminal investigation, one thing I specialised in was police interviewing,” Franklin said.

He stated he was involved in pilot project for interviewing suspects where he was used for training purposes.

“I am particularly careful when interviewing to get it right, if I had video in this country I would of used it,” he said.

Court allows change to interim Toa order

Toa Petroleum owners Apex Agencies became part of the Triad Pacific Petroleum application for declaratory orders in the high court last week.

Justice Colin Nicholson held a judicial conference on Tuesday with the parties to the case to consider how a hearing will be held.

The hearing will likely take place early next year. The interim order which the court has continued until now, and which stops government from purchasing Toa and Juhi facilities, has now been varied.

Government and Apex Agencies are now able to enter into discussions to enable Toa to remain ‘operative’ pending the resolution of the case. If the two parties can reach a ‘commercial solution’ the court has granted them leave to ask for further orders needed to enter such an agreement.

Apex Agencies sent Justice Nicholson an application last Monday through its NZ lawyer to vary the interim order preventing the sale of the Toa facility to government as well as asking to join the case as an additional party.

Toa Petroleum director Brett Porter provided an affidavit to the court and his counsel asked that it remain confidential except to the other parties in the case.

The affidavit contains financial details of Toa Petroleum’s operations.

Justice Nicholson ordered that its contents not be disclosed to Triad owner Chris Vaile or any other people associated with the company because it contains ‘patently confidential commercial information’.

As of last Tuesday, Apex Agencies was added to the case as ‘first party’, the director of audit and his office was added as ‘second party’ and the chamber of commerce is to be added as ‘third party’ if it requests so in writing by October 14. Penrhyn MP and former cabinet minister Wilkie Rasmussen has also been invited to become the ‘fourth party’ if he responds within that time as well. The attorney general (Sir Terepai Maoate), sued in the capacity of representing government, has been added as the sixth respondent in the case.

Since it was filed in January the respondents in the case have been finance minister Sir Terepai Maoate, financial secretary Sholan Ivaiti, MFEM, Cook Islands Investment Corporation and its CEO John Tini.

Justice Nicholson has ordered that the counsel for the first three respondents send a copy of all pleadings, minutes and judgements to date to Apex solicitor Tony Manarangi and the solicitor for BP South West Pacific (which owns the Juhi facility that government wants to purchase).

Discovery of documents additional to those already presented to the court must now be carried out by November 11, the same date by which Triad must file and serve any amended statement of claim with the court.

Statements of defence to such a claim have to be filed and served by the respondents by December 9. Triad has to serve any affidavits in reply by December 23. Justice Nicholson issued a minute saying the hearing will take place in Rarotonga and will likely take two weeks to complete.