Complaint against detectives in murder case
The Independent Police Complaints Authority (IPCA) is investigating the actions of three detectives involved in a controversial murder inquiry.
Palmiro MacDonald was murdered in 2016, and police subsequently charged three men with killing him.
However, charges were eventually dismissed against all three, amid concerns police hadn’t disclosed crucial evidence and their use of unreliable prison informants. The murder remains unsolved.
The fallout from the case saw the High Court, in November 2023, order police and high-profile Palmerston North Crown Solicitor Ben Vanderkolk each pay $20,000 costs for their conduct.
The award against Vanderkolk was the first time a New Zealand Crown Solicitor has had costs awarded against them individually under current legislation.
Justice Rebecca Ellis said Vanderkolk’s attempt to hide his presence at a meeting with a secret prison witness was “wrong, and a bad failure of judgment”, and “significant in its potential impact on the public faith in the administration of justice.”
It led to the Solicitor-General launching an independent investigation into Vanderkolk’s conduct.
Now, the former lawyers for two of the accused men have complained to the IPCA about the actions of three detectives at the heart of the murder investigation, codenamed Operation Palm.
One complaint is against the investigation’s head, Detective Senior Sergeant Paul
Baskett, in relation to him allegedly concealing the presence of Vanderkolk and another lawyer at the 2018 meeting in prison with Witness A, who claimed to have information about the case.
Baskett, now a detective inspector, was also at the meeting, but was told by Vanderkolk not to record the the fact he or his fellow prosecutor, Debbie Davies, were there, to avoid them being called as witnesses at trial as to what was discussed.
Baskett complied, releasing only a job sheet, which omitted Vanderkolk and Davies’ presence at the meeting.
However, the complaint to the IPCA by the trial lawyers for two of the accused says Baskett recorded their presence in his notebook, but kept this notebook hidden for five years.
In her costs hearing judgment last year, Justice Ellis said Baskett had been put in a “truly invidious position” by Vanderkolk’s instruction, and didn’t place blame on him.
But the accused men’s lawyers, Peter Coles, Debbie Goodlet, and Peter Brosnahan, argue Baskett deliberately withheld important details, in a case where repeated concerns had already been raised about police failing to disclose information.
So great were these concerns, the judge had ordered Baskett to obtain a certificate from every officer involved in the investigation, confirming they had handed over all relevant information.
Baskett instructed the officers to ensure they had released all material “created or received” by them during the investigation.
He told them to search computers, bags, lockers, desks, trays, safes, vests, pockets, and pigeon holes, in order to do this.
In July 2018, Baskett swore an affidavit saying he had complied with the judge’s order, and provided certificates from all relevant officers that they had disclosed everything.
Despite this, the IPCA complaint alleges Baskett knew he hadn’t released his own handwritten notes of the 2018 meeting with Secret Witness A, Vanderkolk, and Davies, as he was required to do.
The revelation that Vanderkolk and Davies had been at the secret meeting only came to light five years later, when two of the accused, Chea Hemara and Joseph Johnson,
sought costs for delays and failures to comply with legal requirements by police and the Crown, before charges against them were dismissed.
(The $40,000 awarded went to Legal Aid to help pay the bill owed by Johnson and Hemara.)
Coles, Goodlet, and Brosnahan say Baskett’s failure to disclose who was at the meeting with Witness A meant his later affidavit claiming everything had been handed over was liable to mislead the judge, the lawyer assisting her, and the lawyers for the accused men.
They argue Baskett can’t be excused for doing this simply because the Crown Solicitor told him to do something that was wrong, and allege his actions were tantamount to an attempt to pervert the course of justice.
The IPCA complaint also criticises the actions of the investigation’s second-incharge, Detective Sergeant Peter Vine, for not disclosing a crucial document, again relating to Witness A, a “jailhouse snitch” with a number of dishonesty convictions.
Witness A wanted anonymity if he was to give evidence against the accused, and in October 2017, an application was made to the Solicitor-General for leave to apply to the court for this.
However, in support of that application, Vine swore an affidavit, which omitted to mention police had given Witness A an inducement to provide evidence, while insisting he had no reason to believe Witness A had a motive to be dishonest in the case.
This inducement was a “letter of assistance” detailing the help Witness A had given the investigation, which was provided to the judge at Witness A’s sentencing. It helped him gain a 40% reduction in his prison time.
The letter was not initially disclosed to the accused men’s lawyers, or the independent lawyer helping the court, and only came to light when Vine was cross-examined at a pre-trial hearing, where he acknowledged police had supported Witness A in exchange for him being a witness.
In her costs judgment, Justice Ellis agreed with the Crown concession that not disclosing the letter of assistance was a “significant procedural failure”.
However, she said police didn’t do this deliberately, and it was a result of an “unhappy confluence of circumstances”.
But Coles, Goodlet, and Brosnahan say the document was highly relevant and should have been disclosed, and the Solicitor-General
was misled when considering whether to give leave for an anonymity application.
Given Coles had previously specifically asked the prosecution if a letter of assistance had been provided by police to Witness A, it was wrong to excuse the failure to disclose it as an oversight.
The lawyers have also complained to the IPCA about the actions of Detective Sergeant Drew Bennett, who interviewed Witness A on several occasions.
Rather than retain a record of what had been discussed in each meeting, Bennett simply overwrote and updated a single document from Witness A, meaning earlier versions, and the amendments and alterations to them, were never revealed to the accused men’s lawyers.
This “living document” meant the lawyers weren’t able to compare Witness A’s various statements, and test whether they were consistent.
Justice Ellis ruled Bennett had kept, and eventually disclosed, handwritten notes from the meetings, and the lack of contemporaneous notes was of no real consequence. “Overall, my assessment of DS Bennett is that he is a conscientious officer who is unlikely to have failed to record, or deleted, anything potentially material to the defence.”
However, Coles, Goodlet and Brosnahan challenge this, and have told the IPCA what Bennett effectively did was remove the record of changes in Witness A’s statement, which might point to whether he was reliable or not.
The lawyers noted Justice Ellis had largely cleared the officers of wrongdoing, but they believed some of the detectives’ actions were sufficiently serious to warrant an IPCA investigation.
The IPCA has accepted the complaint, and in a rare move, will investigate the matter itself, rather than refer it to the police for investigation.
Police declined to comment on the complaint to the IPCA, while it was under investigation.
Meanwhile, the investigation into Ben Vanderkolk’s actions and practice, by retired judge Tony Randerson, KC, is due to be completed by the end of April.
Solicitor-General Una Jagose, KC, has said Randerson’s report would help her decide if Vanderkolk had “performed to the level expected by the terms of office for Crown solicitors.”
Vanderkolk review.
“He is assured of our full co-operation and candour about the assessment sought from him by the terms of reference,” Vanderkolk said at the time.
Vanderkolk is best known for his successful prosecutions of Mark Lundy, and was the Crown prosecutor in the trial of Ewen Macdonald, who was acquitted of murdering his brother-in-law, Scott Guy. has welcomed
Randerson’s