PRESSURE FOR UNDERCOVER COPS REVIEW

The way undercover police work in drug operations may be overhauled after a
jury found that two officers fabricated evidence and lied under oath.

The case involved police changing the description of a tattoo on a man seen
by an undercover agent making cannabis oil at a house to match that of an
innocent man.

They went ahead with arresting him, even though they knew they had the
wrong man, a High Court jury found.

The Police Complaints Authority, Judge Ian Borrin, expects to issue his
report on the Withey case this week, 10 years after he was arrested.

It is expected to be the final chapter after three court cases and at least
four police inquiries - including a two-year review by John Upton, QC,
which looked at whether the officers should face criminal charges.

Craig Withey, a Dannevirke freezing worker, was the man wrongly charged. He
sued police for malicious prosecution but settled out of court.

Police refused an Official Information Act request for Mr Upton's report.

A former undercover officer said the Withey case went to the heart of
problems with the undercover programme. Agents were obliged to compile
evidence while under the influence of drugs and to commit perjury by
denying as much, said the former agent, whose name is suppressed.

He said that, contrary to the police's public line, most agents smoked
drugs rather than simulated smoking and recruits smoked cannabis as part of
their training to develop a tolerance.

"They hand agents an absolutely unworkable, untenable policy."

The agent said he had lied in court during his undercover career.
"Everybody sort of knew I was pulling their leg, but they went along with it."

Agents would admit taking drugs but never when it related to their
evidence, he said. "It's about credibility as a witness."

In the Withey case an agent who went by the assumed name of Malcolm
McKenzie infiltrated Hawkes Bay gangs, including the Mongrel Mob and Black
Power.

He told the jury he had smoked cannabis about 30 times during eight months
undercover, but denied smoking it on the day at the centre of the case.

This was contradicted by two men who were at the house, who said the
detective smoked cannabis oil.

Police were criticised for waiting seven-months to interview alibi
witnesses the judge said plainly showed Mr Withey could not have been at
the house.

He said the police officers acted in "bad faith", and Mr Withey avoided
trial and possible conviction only by "luck".

Judge Borrin indicated the complaints authority report would not include a
list of recommendations to police. He suggested police reviews of the case
- - none of which is available to the public - had done so.

"It may be . . . everyone involved has learned about how these operations
might work, how they might malfunction, how things may go wrong. It may be
that broad conclusions have been drawn by people along those lines," Judge
Borrin said.

The Herald asked police to comment on lessons from the case and changes
made to the undercover programme and to provide details of the cost of the
court hearings and numerous inquiries and of what censures or counselling
were given to the officers.

The police refused. A spokeswoman said the matter was still before the
complaints authority, and it was policy not to discuss operational aspects
of its undercover programme.

Queen's Counsel Donald Stevens, who acted for Mr Withey, said the public
deserved to know how the issues exposed by the case had been addressed, if
indeed anything had been done.

"It's taken far too long. Something as serious as this should have been
dealt with promptly," Dr Stevens said.

"This is a finding by a jury that police had knowingly fabricated evidence
and then lied about it. It's pretty damning. If you have a finding of that
gravity, then something has to be done of a rather significant nature to
deal with it."

Keith Price, who was the undercover agent's operator, resigned this year.
He had earlier been promoted to detective sergeant and been prominent in
the Teresa Cormack murder investigation.

"Mr McKenzie" still works for police. His objectivity has since been
questioned in a manslaughter conviction which was overturned. The accused
was acquitted at retrial.

"Mr McKenzie" was the officer in charge of the case. Misdirection of the
jury was the reason a new trial was ordered, but his handling of the case
was strongly criticised.

In his ruling, the trial judge said the detective's "objectivity and
open-mindedness were seriously challenged".

The detective had discounted the evidence of a witness whose account
contradicted the police version of events and tried to get a warrant to
search the witness' phone records.

The defendant's lawyer said the detective had no grounds for assertions he
had made in an affidavit written in an attempt to get the warrant.

"He told porkies."

Undercover police

Former officers have previously criticised the undercover programme
because:It is ineffective and mostly nets the "rats and mice".

* Evidence gathered by an agent while stoned could be questioned in court.

* Expecting agents to simulate drug consumption while undercover is
impractical.

* An independent review in 1995 found undercover officers risked cannabis
dependence and alcoholism.

* Officers said they drank up to 10 jugs of beer and 40oz of spirits a day
to establish their new identity.

* In May, five former undercover officers were paid about $480,000 for
stress and drug addictions caused by their work.

* Another 19 officers still have cases yet to be resolved.