Jailhouse confession was made to undercover NZ Police
Aman from Fiji who burned his friend to death over NZ$30,000 (about F$44,728) made a jailhouse confession to two Police officers posing as fellow prisoners after police set up an elaborate sting. Nearly four years after the January 2013 death of Shalvin Prasad, and debates in three courts, details of the sting can finally be revealed. Almost weeks after the death, Police launched Operation Heath, targeting Shivneel Kumar as a primary suspect in the murder. Two undercover officers - one of whom was Indo-Fijian like Kumar - were given a “subject profile” on the then 18-year-old.
The file included his criminal history, details on associates, vehicles, interests, likes, dislikes, places he liked to hang outs, his drinking and smoking preferences, religion and family. They were told to use a cover story to develop a rapport with the defendant “to a stage where the target will feel comfortable talking about his own criminality”. Three days later Police picked up Shivneel Shahil Kumar, who was then 18, from his house and took him to Manukau Police Station for a two-hour interview. At 4pm, he was formally arrested, charged with murder, processed and told he would appear in Manukau District Court the next morning and, significantly according the Court of Appeal, was told Police did not intend to speak further with him. Just after 6pm, the two undercover officers were processed on fake methamphetamine charges and put in a cell together. Kumar was then informed his toilet was broken and was moved into the cell with the two cops, who immediately started up a conversation with him.
The officers tell him to get a good lawyer and ask him whether Permal is likely to nark on him. He told them he had killed Prasad with one punch and had then burnt his body in an attempt to destroy evidence. “I’ll be dead honest to you, when this s*** happens bro my mind ran around the world bro, ran a million miles per second, the only thing I could think of was the only way I could leave no evidence was burning ... Fire gets rid of the fingerprints, everything,” Kumar said.
“They can’t even prove that I actually murdered ... all they can say is that I possibly murdered.” There was also a discussion about money and Kumar told them the victim owed him NZ$74,000 for drugs - an assertion never raised at trial.
Debate on evidence
Initially the conversations they recorded were allowed as evidence in the trial. Justice Geoffrey Venning ruled it “was not akin to an interrogation” and Kumar seemed relaxed and keen to talk to the undercover officers. But the Court of Appeal ruled them inadmissible and overturned the decision, slamming the Police’s underhanded tactics to actively elicit information from the defendant after he had chosen to end his formal interview. Justices Harrison, Courtney and Clifford said the officers breached Kumar’s right to silence under the New Zealand Bill of Rights Act. “Mr Kumar’s right [to silence] was of fundamental importance and the state’s intrusion upon it was very serious,” the court ruled in a decision. “We are satisfied the use of Mr Kumar’s statement in evidence would call into question the credibility of our system of justice.” The Court of Appeal said the Police had deceived Kumar’s lawyer when they told him he would not be spoken to again that evening.
It also rejected the view that the disclosures had come without being actively prompted. “This was not a casual, natural or free-flowing exchange. Instead it was deliberately directed by the officers to subjects which might encourage Mr Kumar to speak about the murder,” the court said.
“We are satisfied that the officers directed the conversation in this way to elicit information which Mr Kumar would not otherwise have given. It is an example of the officers coaxing and cajoling him into a confession.”
This month Shivneel Kumar (left) and Bryne Permal were denied leave to appeal their sentences.