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Police are refusing to release a review of the controversial investigation into the murder of Upper Hutt woman Lois Tolley, sparking accusations they are covering up serious misconduct.
Tolley, 30, was shot point-blank in her home in December 2016, in what police described at the time as “an execution-type killing”.
After an extensive investigation, named Operation Archer, three men were eventually charged in 2019 with her murder.
But the charges against all three men, who have name suppression, were dropped by police last year, before the case went to trial, with a judge commenting, “there is presently really no evidence against any of them”.
READ MORE:
* ‘An abomination of an investigation’: How the Lois Tolley murder case collapsed
* Police: Top detective defends controversial CIPEM interviewing method
* Men formerly charged with murdering Lois Tolley keep name suppression
* Lois Tolley murder: Case against three men collapses
This followed revelations that one of the accused had falsely confessed to the murder, after police used a contentious interviewing technique, the Complex Investigation Phased Engagement Model (CIPEM).
High Court judge Simon France said the man, known as X, had been manipulated by the detectives interviewing him, who had broken numerous fundamental rules of interviewing, and X’s “confession” was flawed and not credible.
The case against the other two men collapsed for separate reasons, largely related to the unreliability of key witnesses – including a woman twice charged with perverting the course of justice, and jailhouse informants with numerous convictions for dishonesty, who told conflicting stories.
In a rare move, police subsequently appointed Auckland KC and former Crown prosecutor Aaron Perkins to undertake “an independent review of aspects of the police inquiry”.
However, police refused to release the terms of reference for Perkins’ review, making it unclear which parts of the failed investigation were being looked at, and whether he was considering why the case collapsed against all three defendants, or just X.
Perkins’ review was completed in August.
But police are now refusing to release the report, or even a summary of its findings, saying it is “confidential and legally privileged”.
Assistant commissioner Lauano Sue Schwalger said the review contained information that was “sensitive in nature. For that reason and due to the fact that the investigation into Ms Tolley’s death remains ongoing we will not (sic) commenting further as it could prejudice future work on this case.”
Lois Tolley’s mother, Cathrine MacDonald, said police had informed her of the review’s findings, and she supported the police, but was unable to comment further.
However, none of the former defendants, their families, or lawyers have been contacted by police or informed of the findings.
KEVIN STENT/STUFF
Lorraine Duffin visits a memorial to her niece Lois Tolley for the first time in 2018.
Wellington lawyer Lara Caris, who together with Val Nisbet represented one of the men accused of the murder, known as AB, said the case highlighted an array of questionable police tactics.
“I have grave concerns there appear to be a significant number of serious improprieties in the way this case has been investigated, and we’ll never get answers as to whether or not that’s correct, and who’s responsible for them.”
Caris said all the families involved deserved to know why the investigation into Tolley’s murder “has gone so catastrophically off track”.
“And to sweep it under the rug not only prevents justice and answers being provided in this case, it also opens up the prospect there won’t be any lessons learnt from this to ensure it doesn’t happen again.”
Given there had been no trial or appeal to expose what occurred, the public were left in the dark about why nobody had been convicted after nearly six years, in a very high profile murder, Caris said.
She pointed to other recently overturned convictions where there were major concerns about police tactics, including those of David Lyttle, Mauha Fawcett and Alan Hall.
“Somebody needs to be policing the police, and not releasing this report or allowing any assessment of it, allows them to essentially ensure they are judge, jury and executioner.”
Caris had not been contacted by Perkins, and didn’t know whether he even considered issues like the use of unreliable covert informants by police during the investigation.
“If it was a comprehensive review, why won’t they just tell us? And the fact they won’t, makes you cynical as to what the answer is, doesn’t it?
“This was not an unsolvable case. But the police f…ed it up, plain and simple. It’s just not good enough.”
One of the men who had the murder charges against him withdrawn said the public needed to know someone could be arrested and spend two years in prison purely on the basis of claims by jailhouse snitches.
Even after the charges were dropped, he had suffered severe consequences due to being stained with the accusation of being a murderer.
The lawyer for X, Robert Lithgow KC, said he understood police had announced the “so-called independent review” of Operation Archer, in order to assist public understanding of what went wrong.
“But they’ve clearly decided not to share whatever insights have been achieved.
“That begs the question whether New Zealand police understand anything other than winning and losing.
“Because that’s what we don’t know, isn’t it – have they had any learnings out of all this?”
Nicholas Wintour, the lawyer for the third man charged, CD, said Perkins’ report should be released, with information crucial to the ongoing investigation, redacted if necessary.
“It’s millions of dollars of taxpayers’ money, isn’t it, (spent on the murder investigation), and now they’re just covering it up.”
Wintour said during the investigation, police deliberately hid material from him until the last minute that suggested his client wasn’t involved in the murder.
“That’s so wrong. That’s not the country I want to live in.”
“Wintour believed police tried to fit evidence around the men they thought had committed the crime.
“It’s terrible stuff, it really is.”
A relative of one of the men charged has also called for police to stop hiding Perkins’ report.
“The police shouldn’t be above the law. The public have a right to know what happened.
“And police need to own what they’ve done, learn from it, and make sure it will never happen again.”
The refusal to release the report follows continued efforts by police to withhold material relating to the Lois Tolley investigation, and the CIPEM interviewing method.
Stuff has twice been forced to get court judgments in order to obtain access to relevant documents.
It also comes after the retirement of the country’s top investigator and architect of CIPEM, Detective Superintendent Tom Fitzgerald, earlier this month.
Fitzgerald was closely involved with the interviews of X, but insisted CIPEM wasn’t to blame for mistakes made by the interviewing detectives, and said his retirement had nothing to do with scrutiny of the technique.
Aaron Perkins was contacted for comment.
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