By JAN CORBETT
As the television screen crackled into life in the Palmerston North District Courtroom, the prosecutors had every reason to believe they could sit back and listen to their star witness decisively condemn the three Mongrel Mob members charged with murder.
The 16-year-old witness was there that February night when his friend and fellow Black Power prospect Wallace Whatuira was shot on the streets of Highbury - a suburb racked by inter-gang tension. His cold, lifeless body was found by a passerby next morning.
Whatuira's friend gave a detailed account of that night's killing to the police. He declined to join the witness protection programme even though he was clearly in the extremely vulnerable position of not only giving evidence against gang members, but of hoping to be one himself - an unlikely progression now that he had marked himself out as someone who would nark to the police.
Prosecutors succeeded in getting the judge to agree that he could give evidence via a television link from a remote location, to avoid the threat of direct intimidation.
But when the cameras rolled and the questions came he was strangely uncooperative, could recall none of the detail which he had earlier provided the police and made it clear he did not want to be there.
The case collapsed.
Prosecutor Peter Butler left the courtroom with the obvious assumption that "some powerful factor" had erased this witness' memory.
Was it threats from the Mongrel Mob? Or from his own Black Power? Or maybe, as criminal sociologist Greg Newbold wonders, the result of the two gangs reaching their own style of settlement outside the court system. He has heard of that happening with gangs before, with a Harley-Davidson handed over as restitution for an assault.
That gang warfare did not break out in Highbury after the trial was aborted, adds credence to Newbold's theory that an agreement had already been reached.
Whatever the reason, it raises the question of whether gangs can get away with murder.
Arthur Povey has thought that, too. Last year he sat in a courtroom and watched the case against his son's murderers founder the same way. Damian Povey, aged 37, had operated around the fringes of gangs for much of his life, but was going straight, his father says. That is until he was stabbed to death on the road near Thames.
One of the six Highway 61 gang members allegedly identified at the scene was given immunity from prosecution in exchange for his evidence. But by the time he reached the witness box at the depositions hearing he had forgotten everything he had told the police and left the courtroom to join the accused across the road for a beer.
John Lawton and his family know the price of testifying against gangs. They had to leave Invercargill after giving evidence against heavily tattooed Mongrel Mob member Charles Te Kahu, who had firebombed their home. Wherever they are now, this week they would have read the chilling news that Te Kahu may soon be released on early parole.
And, of course, there was the martyrdom of Christopher Crean, the 27-year-old gunned down in front of his wife and children in 1996 after giving evidence against Black Power in a New Plymouth assault case.
In the intervening years, laws have been passed to get tougher on gangs and make it easier for the public to testify against them.
Crean's murder led directly to changes in the Evidence Act allowing witnesses to testify anonymously. But it is clear in the legislation that it is to be used in only exceptional circumstances, that there has to be a clear threat and that the judge still has to be mindful of an accused's right to know their accuser. Prosecutor Peter Butler knows of four cases where witness anonymity has been allowed - all gang-related.
According to unofficial figures from the Crown Law office, there have been nine cases in which witnesses have asked for anonymity and it has been granted in six. Of the remaining three, one was granted suppression of their address and occupation but not their name, one was declined because the accused already knew who it was and the third case never made it to court.
Police also run a witness protection scheme, an option that was open to the 16-year-old in the Highbury case. But few are willing to accept such a disruption to their lives when it means changing town or country, job and identity - and exile from family and friends.
This week, in the aftermath of the Highbury affair and in the thick of an election campaign where law and order is a raw issue, National and ACT's justice spokesmen called for welfare and housing privileges to be withdrawn from gang members. The trouble is proving gang membership can be difficult especially as modern gangs are less keen to draw attention to themselves.
These calls join a long list of novel suggestions from politicians that include a pledge from 1972 Labour Prime Minister Norman Kirk to confiscate their motorcycles.
Arthur Povey says that since his son's murder he has given a lot of thought to how to combat the gang problem. He concludes that it is a complex question linked not only to the gap between rich and poor, but also to the drug laws.
"It's too late," he says. "If they'd decriminalised cannabis 10 years ago, it wouldn't have given the gangs such a strong financial base."
Plus, he doubts our legislators have what he calls "the testicular fortitude" to outlaw gangs.
This is not to say they have not tried.
From 1997 local authorities had the power to force gangs to demolish the high walls and fortifications that marked out their headquarters in the poorer suburbs.
A 1998 amendment to the Crimes Act made it a jailable offence to belong to a criminal gang. Given the proliferation of gangs - National MP Wayne Mapp claims there are 15,000 gang members and associates - it is reasonable to ask how many have now been convicted under section 98A.
The answer is two.
Palmerston North's police area controller, Inspector Grant Nicholls, would like to add to that number with a sweep through the ganglands of Highbury. Even though the law requires clear evidence the gang is criminal (and gangs have been said to be considering incorporating as companies to avoid the gang tag), at least three of its members must have committed three offences on three separate occasions, and its members have to have been warned twice previously, Nicholls says the law is good. But he laments the lack of case law behind it because it is so seldom invoked.
This is partly because, despite their menacing appearance, gangs' activities seldom affect middle New Zealand. The most common victims and witnesses of gang crime are gang members.
As civil libertarians are quick to point out, we cannot pass laws that prevent people forming associations with their own rules, wearing intimidating clothing, or travelling in expensive vehicles that are more like weapons. Where would that leave the Northern Club?
In recent years there has been suspicion of jury-tampering by gangs but, like witness intimidation, it is difficult to prove.
In 1999 a jury in a drugs trial involving the Hell's Angels was sequestered in the final days of the trial after the judge said he wanted to prevent any attempt to influence the verdict. And in March this year a jury was sequestered for the duration of the 17-day retrial of Headhunter member Peter Cleven, who was acquitted of drugs charges. Cleven claimed outside court that the police alleged he nobbled the jury in his first trial and that sequestering the jury was a dirty police trick to prejudice the jury against him.
While branches of academia have become overly fascinated by gangs, police association president Greg O'Connor accuses the police of not being interested enough. He says that during the 1990s, while the police were decentralising and distracted by the Incis computer debacle and the promise of solving crime electronically, the gangs were centralising and upskilling. He says that where once they were synonymous with disorganised violent crime, they have now introduced organised crime to this country, based on drugs.
He dismisses what he calls the liberal notion that the police will never be able to get on top of gangs. But stresses they never will without a plan and resources to implement it. "It's like getting the road toll down," says O'Connor. "There has to be a strategy."
He also dismisses the notion that apart from the occasional episode of witness intimidation and suspicions of jury tampering, gangs are a menace only to themselves. "The big losers are the good people who live in the poor areas. Their kids are at risk."
The silence of the witnesses
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