Cannabis farm: Shaun Allen's 25 year battle to prove his innocenceby Mike White
In 1993, police accused Shaun Allen of growing drugs, sent him to jail and seized his farm. Determined to prove his innocence, he’s spent 25 years – and most of a Lotto win – trying to uncover what happened. Mike White investigates Allen’s troubling case and why he can’t let it go.
He loves to scrap. By god, he loves it. It’s in his blood; his great-uncle was Tom Heeney, who fought for the world heavyweight title at New York’s Yankee Stadium in 1928. He’s decked countless people and organised for others to be beaten up. He planned to kill a bloke in prison. He’s earned money, won money, gambled money and lost money. He’s let people down, and left others short. He’s rubbed shoulders with gang members and rubbed people up the wrong way. He’s lied and been caught out.
And in 1993, he got busted for growing more than a thousand cannabis plants on his Hawke’s Bay farm. He was sentenced to 18 months in prison and they confiscated his farm.
But for 25 years, he’s been fighting to clear his name, adamant he’s innocent, that the dope wasn’t his and he was stitched up by police. When he won $500,000 playing Lotto in 1997, he didn’t say “stuff you” to the cops, walk away and start a new life – he ploughed much of it into hiring lawyers and investigators to fight his case.
It’s obsessed him, wrecked his life, but he’s never given up. Can’t give up until he gets justice, he reckons. Because, sure, he’s done some bad things – but he didn’t do this one. And in a case that’s riddled with mistakes, disappearing documents, conflicting testimonies, scant evidence and inexplicable obstruction by authorities, maybe there’s good reason why he’s so committed to proving his innocence. Because, while Shaun Allen mightn’t be an angel, maybe he’s been badly wronged. Then again, maybe he’s just a convincing and determined liar…
On the morning of Thursday, January 21, 1993, Shaun Allen and his mate Robbie Price headed out past the airport, orchards and empty beaches north of Napier on the 50-minute drive to Allen’s farm. It was Allen’s 35th birthday; after doing some fencing, he planned a party back at his home in town.
Allen had bought the farm, 340ha of steep hillside in the Esk Valley, the previous May, paying $150,000 for the largely bush-covered block. He aimed to farm wagyu cattle biodynamically, mill some of the property’s kanuka and sell some 40ha blocks for forestry, while keeping 80ha along the Esk River, and eventually buy a larger farm.
Late that morning, Allen and Price were running a fencing wire uphill when a helicopter flew low over the property. Constable Dave Wilkinson was lowered down, and asked Allen whose farm it was and where its boundaries were. Wilkinson then asked who owned the cannabis they’d found on the farm. Allen said it wasn’t his, and insisted there wasn’t any on his property. But there was, according to police – 1038 plants spread over 13 plots.
As Allen’s farm was being raided, police were also searching his house at 207 Carlyle St, Napier. They quickly located a plastic bag that contained thousands of cannabis seeds, as well as some cannabis.
Instead of a birthday party that night, Allen just had a few drinks. The next morning, he went to the police station, where he was charged with cultivating cannabis.
Allen employed top Auckland QC Peter Williams to defend him and at his first trial, in August 1993, the jury couldn’t reach a verdict. (One juror told Allen it was 11:1 in his favour.) But at his second trial, in January 1994, the jury was definite: Allen had planted large quantities of cannabis on his property, and his claims the dope was grown by trespassers weren’t believable.
Two months later, he was sentenced to 18 months in prison and his farm was confiscated, the first property seized under the Proceeds of Crime Act. As if that wasn’t bad enough, his legal costs and inability to farm his land meant Allen was bankrupted in March 1994.
For Allen, it was latest act in a life that had already seen plenty of trouble. And that’s what a lot of people saw him as – trouble. Short-fused, fists always balled for a fight, never likely to take a backward step. When he gave evidence at his trials, he was combative, argumentative, a smart prick who did himself few favours.
A 1994 probation report described him thus: “A rather intense individual, Shaun Allen flits from one obsession to another and achieves little. He creates his own reality and believes in it with passion.”
He was deemed trouble at school, did only six months at intermediate and barely a year at Napier Boys’ High School, repeatedly wagging and getting thrashed. In all, he reckons he got caned 400 times, and still has scars. “I didn’t like the authority, I suppose. And I was thick – I was told I was thick.”
He was expelled at 14, got a job on a farm, and then entered a farm cadet scheme.
His first conviction was at 15, for placing an obstruction on a railway line. There followed charges for wilful damage, burglary, drink driving and theft, which were all dealt with by fine or disqualification.
But in 1979, Allen got caught with a pound of cannabis. Awaiting trial, he breached his bail requirements and was arrested. While being held at Napier’s police station, he smashed a hole through the ceiling of the holding cell and took off, along with two Mongrel Mob members. Allen was on the run for several months before turning himself in and being sent to prison for nine months.
He continued dealing dope for a couple of years after getting out, and was caught again – this time getting off the charge, though he now admits he was guilty. From that time, in the early 80s, Allen swears he gave up anything to do with cannabis – stopped smoking it, never grew it, never supplied it.
Instead, he says he went straight, went to Australia for a bit, taught life-improvement courses, owned a pizza shop in Dannevirke.
He’d done mustering work in the Esk Valley when younger, and when the chance came up to buy a farm there, Allen cobbled together money from his parents, his partner, and the bank. The property was isolated and didn’t have a house. Allen would travel out to it several times a week from Napier to care for the cattle he’d bought. He had big plans, big dreams, and saw wagyu cattle as a lucrative farming future.
However, within months those dreams had been scythed through by the blades of a police helicopter that rose over a ridge and landed beside him.
The helicopter was part of Operation Maria, an annual police assault on cannabis growing across Hawke’s Bay. Once plantations were spotted from the air, officers would be dropped in, pull out the plants and take them back to their base to be destroyed.
It should have been straightforward, and, according to police, it was. But what happened on January 21 at Shaun Allen’s farm is mired in uncertainty, contradiction and missing evidence.
Two days earlier, police had obtained a search warrant based on information Allen was cultivating cannabis on his farm and selling it from his house. But, strangely, only a warrant to search the house was evidently issued. When Constable Wilkinson approached Allen on the farm, Allen swears he had a search warrant but it was for a nearby resident with a similar name: Shaun Robert Campbell. Police deny this. (However, interestingly, a police document dated the following day mistakenly refers to searching the farm of “Sean Robert Campbell”.)
A police job sheet records officers arrived at Allen’s house at 10.52am. Within minutes, they found a large bag of cannabis seeds among rubbish at the back of the house. Allen insists his friend, Black Power member Toria Edwards, had brought the seeds around two days before. He’d told Edwards he didn’t want anything to do with them and to get rid of them, and never saw them again. Edwards (who has since died) backed up Allen’s story. While Edwards’ various statements and trial evidence contain differences, he consistently said he brought the seeds to Allen’s house and dumped them in the rubbish because they weren’t much use and Allen didn’t want them.
Despite Edwards admitting the seeds were his, police never charged him with possessing them, instead charging Allen. Indeed, there are no records police even interviewed Edwards – though Edwards said they did. Nor did police fingerprint the bag the seeds were in, something that could have clarified whose they were.
The fact the seeds arrived at Allen’s home the same day the search warrant was issued, and how quickly police found them, surprises Allen, who points out that if he did have a large bag of seeds, he’d have hidden it on his bush-smothered farm rather than at home.
Even more curious is that Operation Maria’s boss, Detective Sergeant Laurie De Luca, noted a quite precise number of seeds found at Allen’s house – 33,500 – in his notebook that day, despite the seeds apparently not being examined by police. (A small amount of cannabis was also found at the house, which Allen’s partner admitted using.)
Neither the search warrant nor the application for it were disclosed to Allen’s lawyers before his trials. When they were specifically requested, police claimed the warrant had been lost. Eventually a redacted copy of the application was disclosed – but now police claim the original of that, with crucial information about who informed police Allen was cultivating cannabis, has gone missing, too. All copies of the warrant and application have also disappeared from Napier court files.
The fact such a large quantity of seeds had been found at Allen’s house was a crucial plank to the police case that he was cultivating cannabis. While the charge of possessing the seeds was later dropped, the juries at Allen’s trials heard this evidence, with all its negative connotations.
The Chain of Custody
After the cannabis was removed from Allen’s farm, Detective Sergeant De Luca selected four branches as a sample. De Luca says he gave these to the exhibits officer, Constable Robert Hogan, on the evening of January 21. Hogan’s initial job sheet, completed on March 8, makes no mention of this. He lists numerous other exhibits from Allen’s farm that were delivered by De Luca and other police that day and the next, but nothing about crucial cannabis samples being received from De Luca. The first mention of them in Hogan’s job sheet is January 26, when he says he received cannabis samples from Allen’s farm from Detective Constable D. McLellan.
But on March 31, Hogan filed an addition to his original job sheet, noting De Luca gave him cannabis samples from Allen’s farm on the night of January 21. In this, Hogan says he placed the cannabis in a drug squad office at Napier police station to dry for several days, before transferring them to a drug safe. However, statements from Hogan and two other police officers who were supposedly involved in these transfers don’t match, with different descriptions about who gave what to whom, and who was present.
On March 9, Hogan sent the cannabis samples, and seeds seized from Allen’s house, to the Institute of Environmental Health & Forensic Sciences (IEHFS, now known as ESR) for analysis. (The seeds, along with all other exhibits seized at Allen’s farm, had been photographed while in storage, but for some reason the cannabis wasn’t.) For security, IEHFS required samples be sent by registered or courier post. However, Hogan used another company, Fastway Couriers, despite those clear guidelines.
When IEHFS received the samples, analyst Shaun O’Neill determined they were indeed cannabis and cannabis seeds. But because they had been delivered by a non-authorised courier without secure-chain-of-custody evidence, O’Neill said he couldn’t issue a Certificate of Analysis required in court to prove the samples were illegal drugs.
Allen was due to face depositions (an initial hearing before JPs that is no longer used) on April 16. On April 8, Graham Thomas from the police legal section contacted O’Neill’s boss, Graeme Sutherland, asking for a Certificate of Analysis to be issued, indicating they wished to test the delivery issue in court. Sutherland did this on April 13, but noted, “The validity of the certificate may be in doubt due to the method of delivery of the items.”
However, concerns about the Certificate of Analysis were never raised at trial. While there is a letter on April 8 from police to one of Allen’s lawyers, Chris Reid, regarding Fastway Couriers being used, this was before police encouraged IEHFS to issue the certificate. Reid says that they accepted the certificate at face value, but if they’d known the full story, they would have certainly challenged its validity at depositions and at Allen’s two trials.
Lindsay Dow, a former police prosecutor and now private investigator who has looked into Allen’s case, says the prosecution was obliged to raise the issue with Allen’s lawyers seven days before the depositions hearing. In the end, the certificate was issued just three days beforehand, with even Sutherland noting this was too late.
Dow says he’s appalled at the police investigation and, as a police prosecutor, he wouldn’t have even gone to dep-ositions with the evidence they had. “The background to the actual search, the documentation, the whole chain of custody, leaves me with deep concern. I don’t know Shaun. He could be as guilty as sin of cultivating cannabis, but you’ve still got to prove it in court.”
If the certificate’s validity had been challenged in court, analyst Shaun O’Neill would have had to appear, with his notes – and this would have raised other extremely awkward issues for police.
The Cannabis Samples
Laurie De Luca was head of the Hastings district drug squad when Allen was arrested, and considered an expert witness in drug matters. At Allen’s trials, De Luca said the cannabis on Allen’s farm “had not reached maturity” but “had the ability to do so”; had probably been growing for 2-3 months; and ranged in height from 30cm to 1.5m, averaging 1m. (However, a job sheet by Detective Greg Macklow describes pulling plants in one plot that were 15-30cm high.) De Luca estimated plants would be 2m when mature.
De Luca randomly chose four 800mm stalks from the haul and these were the ones stored at Napier police station and eventually sent to IEHFS for analysis However, analyst Shaun O’Neill insists what he received was “mature cannabis, with female flowering heads”.
A quick lesson in the life-cycle of cannabis. Grown outdoors, it initially increases in height and forms branches with leaves. As days shorten, flowering heads form, containing most of the psychoactive compounds desired by users. Female plants have the majority of these and generally flower about a week after male plants. Harvesting usually occurs in April and May, and mature plants can be worth $1000.
Mike Nichols, who taught horticultural science at Massey University for 40 years, has consulted internationally, and has an interest in medicinal cannabis, says cannabis is generally planted outdoors between late October and early December. The plants only reach maturity – forming flowering heads – as autumn approaches and days shorten. He thinks it most unlikely cannabis grown outdoors would have had mature heads by January 21.
“I would have thought that would be, oh, a couple of months ahead, I would have thought they wouldn’t mature until the end of February, into March.”
Nichols says planting early, or a warm summer, wouldn’t change this much, if at all, as the plant’s maturity is dictated by reducing daylight hours – like the flowering of chrysanthemums.
Shaun O’Neill has sworn an affidavit stating he remembers Allen’s case very well because it was the first Proceeds of Crime Act case; the non-standard courier used to deliver the samples; the fact the samples had three different spellings of Allen’s name (Sean Allan, Sean Robert Allen, Shaun Robert Allen – none of which are correct: Allen’s name is Shaun Roberts Allen); and the controversy over issuing a Certificate of Analysis.
Drawing on notes he made when the samples were delivered to him on March 10, O’Neill states: “The cannabis plant material that I examined was mature cannabis with female flowering heads, some of which did not contain seeds. I cannot recall whether the heads were packed tightly, but I am quite sure that the cannabis was mature.”
Given De Luca described the plants on Allen’s farm as not mature, and given all reports describe the samples being selected at “random”, it is hard to understand how the four stalks sent for analysis from 1038 plants were all mature cannabis.
The Undisclosed Evidence
Of course, Allen’s lawyers were not aware of this discrepancy during his two trials.
They accepted IEHFS’s Certificate of Analysis vouching the sample was cannabis, but didn’t know it was issued only after pressure from police. Thus, they didn’t see O’Neill’s notes stating that the cannabis was mature. Nor could they cross-examine him, which would likely have highlighted the apparent difference in what police seized and what he examined. All of which perplexed O’Neill.
“I was aware that [Graeme Sutherland] had discussions with the police and that police insisted that a Certificate of Analysis be issued,” O’Neill states in his affidavit. “This was somewhat controversial as we did not believe, due to the method of delivery, that a Certificate of Analysis would be legally valid under the Misuse of Drugs Act 1975. I remember at the time being surprised that I was never required to give evidence in court.”
There was another way Allen’s lawyers could have discovered the inconsistency between samples, but this was also withheld from them.
Because police didn’t have a search warrant for Allen’s farm, they were required to send a message, similar to a telex, to the Police Commissioner alerting him a search had occurred. This was known as a “switch message” or “MODA”. This message was never disclosed to Allen’s lawyers at his trials. When it was eventually released, it stated the cannabis found on Allen’s farm was “mature”. Again, if Allen’s lawyers had seen this, they could have pointed to its discrepancy with the evidence of the police who seized the cannabis.
Considerable controversy surrounds the MODA, with Allen and his lawyers alleging it may never have been sent and that copies they were eventually provided with are fakes. Despite apparently being in Napier on the evening of January 21 and the morning of January 22 delivering seized exhibits, De Luca says he ripped a page from his notebook with details of what had been found at Allen’s farm and gave it to Detective Dave Wilson to send the message from Napier police station. The message was sent from Hastings police station.
Wilson has twice publicly stated he doubted he sent the MODA, saying he was working in the field on helicopters and driving vehicles, suggesting it would have been sent by De Luca.
However, a 2009 Independent Police Conduct Authority report says Wilson retracted those statements and claimed he did send the MODA, as he was at the police station to collect staff lunches for the operation. (This is despite the operation base having a cook, and a briefing paper stating “all meals will be provided”.) The note De Luca gave to Wilson was never disclosed. The original MODA report “cannot be located or has subsequently been destroyed”, police said in 1996. Wilson stated in 2001 that he no longer had his notebook.
There was another obvious reason to question whether Allen had in fact grown the cannabis on his farm.
Detective Macklow stated most of the plots were “completely overgrown”, with cannabis sprouting from them. “They were not typical of the majority of plots which are found with the soil fully tilled and fertilised.”
He said most of the plots seemed to have been there longer than the plants, and when he tried to pull up an irrigation hose, found “it was imbedded in the ground and grass.”
Before his first trial, Allen visited the plots with scientific expert Rory Shanahan. Shanahan likewise described the plots as completely overgrown, with irrigation hoses unable to be extracted. Moreover, he found wooden stakes around the plots were completely rotten in places – clearly suggesting they’d been there for several years at least. Shanahan gave this evidence at Allen’s first trial, but by the second trial Allen had run out of money and didn’t call him. However, Shanahan still believes the plots were old and had been there well before Allen bought the farm.
Given the age of the plots, either Allen had been growing cannabis there prior to purchasing the farm – for which there is no evidence; or he had discovered the existing plots after buying the farm, and planted his own cannabis. This latter scenario raises questions of how the previous growers may have reacted when they found Allen had usurped their plots.
There are also questions about Allen’s ability to have planted the cannabis during the period. His doctor diagnosed Allen with giardia in late September 1992, noting he had “quite a long illness, perhaps a month or two, prior to that”. The doctor saw Allen again on November 5, and Allen had relapsed with giardia once more. It was at this time Allen was supposedly involved in planting a thousand cannabis plants over extremely difficult country.
Much of the controversy about what was found on Allen’s farm could have been easily clarified if police had taken photos of the cannabis and plantations. However, De Luca claims that when they arrived at Allen’s property he discovered his camera wasn’t working. No photos were taken before the cannabis was destroyed, either.
Police returned to Allen’s farm the next day, taking photos of a shed and objects seized from it. However, despite going to areas where cannabis was grown, no photos were taken demonstrating how overgrown they were or how the fencing stakes had rotted. De Luca returned to the farm on January 23 to take samples of irrigation hose and fencing from two plantations, but again, no photos were taken of the plots. Nor were any photos taken of the 4WD tracks police claim they saw from the air, running between plots. (Allen had an old jeep and a quad bike.) Police have never explained what was wrong with the camera.
It is undeniable the Esk Valley was popular for growing cannabis. Each year, police found plantations there, often hidden in forestry blocks.
John May, who sold Allen his farm, gave evidence that he frequently saw trespassers and their vehicle tracks on the farm, and swore an affidavit saying he found cannabis plots at least twice. Allen’s neighbours had a sign on their gate warning those crossing the farm against “illegal gardening”, referring to cannabis growing. Nearby Waikoau was well-known for cannabis growing, with one police officer telling Allen, “You don’t live up there for the good of your health.”
Allen says that he encountered four strangers on his farm soon after buying it, and they threatened him with a rifle. Soon after, a derelict house on the property was burnt down, and he had frequent problems with cattle being killed and fences cut by intruders.
Though isolated, there were numerous ways to access Allen’s farm. A gravel road ran through it from the Waikoau village end, mainly used for servicing electricity transmission lines, but it was generally open to the public and connected with the Napier-Taupo highway. The Napier-Gisborne railway bisected the farm, and access along this was easy on foot, motorbike or quad bike. At Allen’s trial, a railway worker spoke of seeing trespassers using the railway line, and finding a cannabis patch near the tracks.
It was also relatively straightforward to cross the Esk River, which formed the farm’s western boundary, either on foot or by 4WD, and access Allen’s farm via vehicle and stock tracks.
Police always insisted that, despite cannabis growing being widespread in the area, in 1993 they found no other plants within 15km of Allen’s farm – only the 13 plots on his land. Thus, they argued, it was improbable any trespassers would have grown cannabis solely on one property, and the more likely scenario was that Allen was responsible.
However, this contravenes an obvious rule of cannabis growing – don’t do it on your own land. Indeed, in a November 2016 Northern Advocate story, Detective Senior Sergeant John Miller, who ran Northland’s annual drug recovery operation, said if cannabis was found on a property, it in no way meant the landowner was responsible. “It is a common tactic for growers to grow on a neighbouring property if they believe they will not be detected.”
Doubts have also been raised about whether police found cannabis only on Allen’s farm within the Esk Valley.
Denis Pullar insists police seized 400 of his cannabis plants from forestry land across the river, during Operation Maria. Pullar, now 78, operated a sawmill in the area, but found he could make more money, more easily, growing dope. He distinctly remembers the police helicopter raiding his plantation, which was about 3km from Allen’s property.
“I saw them come up the valley and lower the guy down and chopper all the plants – I saw it happening, no question.”
It must be noted there are differences between some of Pullar’s statements – he originally said his cannabis was taken on January 22, but now believes it was January 21, the same day Allen’s farm was targeted.
However, as an experienced Hawke’s Bay cannabis grower, Pullar finds the police case against Allen almost incomprehensible. He insists it was impossible any cannabis would have had flowering heads at that time of year, as found by IEHFS. Pullar says cannabis was usually planted in late October or early November, with the first signs of flowers not appearing until March, and then took another two months before being ready to harvest.
Moreover, Pullar struggles to believe one person could grow more than 1000 plants on such rugged country. As a comparison, he and two colleagues grew 600 plants one year.
“Most people, if they were honest, would be struggling, as a sole operator, to manage any more than 100. You’ve got to have 1000 holes to start with, don’t you? To harvest it would be a massive job. And you have to have somewhere to dry it. And you’d have to have a marketing strategy; you haven’t grown them for fun, have you?”
Then there’s fertiliser, says Pullar. At, say, 300g per plant, that means lugging more than 300kg of fertiliser around incredibly difficult terrain. “It’s almost in the realms of fantasy, that one person could do this. I’d be surprised if there wasn’t three or more people involved in that operation.”
Of course, none of this means Allen didn’t have associates who helped him plant cannabis. But that was never the police case. And if others were involved, then for the 25 years Allen has been vociferously proclaiming his innocence, he must have known those colleagues, or anyone they’d confided in, could come forward at any time to expose him as a liar.
When the helicopter swooped over Shaun Allen’s farm that day, Laurie De Luca, the officer overseeing Operation Maria, was sitting beside the pilot.
As Detective Macklow and Constable Wilkinson pulled out plants, the officers radioed tallies to De Luca, who entered them in his notebook. Despite it being a four-day operation, police insist this notebook is the only contemporaneous record of where they went and what was seized.
Prior to his trials, Allen’s lawyers repeatedly asked for all relevant documents, including all material “that may be referred to in the hearing”, and police guaranteed this had taken place. This assurance was repeated in October 1994 when Napier’s district commander, Superintendent A. Letica, stated “all documentation in respect to the enquiry has been released”. Despite this, and despite it being the only first-hand record of the operation, De Luca’s notebook was never disclosed. De Luca referred to his notebook during the trials, but Allen’s lawyers accepted assurances they had received everything significant.
One of Allen’s trial lawyers, Chris Reid (Sir Peter Williams died in 2015), says it’s “just appalling, absolutely appalling” De Luca’s notebook wasn’t released to them. In preparation for Allen’s appeal to the Court of Appeal, his new lawyer, Isaac Koya, specifically asked for the notebook. Police responded, claiming “The daily totals are not recorded in the notebook, and the information in the notebook is difficult to decipher.” But in June 1995, when Napier detective constable Jeff Foley finally released copies of 19 pages from the notebook, the daily cannabis tallies were clearly marked, along with much other information.
The pages detailed a total of 5610 cannabis plants found during Operation Maria. However, earlier police National Drug Intelligence Bureau statistics showed 8772 plants had been seized, based on information from De Luca.
Given the numerical discrepancy, and Foley’s incorrect claim the notebook contained no daily totals, Koya and Allen questioned whether the notebook was accurate or had been altered, and successfully applied to the Court of Appeal for it to be presented. In December 1995, De Luca swore an affidavit, attached his notebook (which had been released to him by police) as an appendix, and sent it to Crown Law, whose lawyers were opposing Allen’s appeal.
Crown Law’s John Pike forwarded this to the Court of Appeal on December 19, and advised the court he had sent copies of De Luca’s affidavit and notebook to Allen’s lawyer. However, in his letter to Koya, Pike provided only the affidavit and another document – simply noting he had lodged the notebook with the Court of Appeal.
On January 10, 1996, Koya wrote to Pike insisting he be provided with the notebook. What happened subsequently is unclear. There are no documents indicating Pike responded to this request, or detailing how or when he provided Koya with a copy of the notebook.
North & South sought to clarify this, along with numerous other matters, but Crown Law refused to answer any questions, stating it didn’t need to give reasons for its silence.
The Court of Appeal’s judgment says the notebook was made available to Koya, but Koya says this is wrong. His submissions refer to the 19 pages that had originally been copied to him by Detective Constable Foley in June 1995, and one other notebook page made available to him much later – a page with tallies now matching the official 8772 figure of plants seized in Operation Maria. (Curiously, this page has four holes punched in its left margin – unlike the other 19 pages, which have two.) Why this page wasn’t provided earlier by police is unknown, given Foley, when sending Allen the original 19 pages, stated: “The attached copy of notebook entries of former Detective Sergeant De Luca are all that are available in relation to cannabis seizures during the helicopter recovery operation of 1993.”
Another issue was that the notebook lacked an exhibit stamp signed by the person witnessing De Luca’s affidavit, indicating it was the appendix referred to in the affidavit. Lawyers and court staff say it is highly irregular for this stamp to be missing, and allows questions to be asked about the notebook’s legitimacy.
Allen’s appeal was dismissed, and the Court of Appeal retained the notebook.
In April 1998, Allen’s new lawyer, Russell Fairbrother, asked Crown Law to release the notebook for forensic examination, because Allen suspected it might have been altered at some stage to match the case against him.
John Pike claimed the notebook was De Luca’s property so Fairbrother contacted him, but De Luca, who had retired from the police in 1994, refused to allow its release. On June 22 1998, De Luca wrote to the Court of Appeal insisting the notebook was his, and requesting it be returned to his brother, Hamilton lawyer Peter De Luca.
Despite Fairbrother’s explicit requests to Crown Law and the Court of Appeal that the notebook not be released until its ownership was clarified, a court official sent it to Peter De Luca three days later, without even copying it.
Determined to retrieve the notebook, Fairbrother went to the High Court. In December 1998, a judge ruled the notebook belonged to the police, not De Luca, and stated, “For reasons which escape me, the Crown has supported the position of [De Luca] that his notebook is his property.”
In March 1999, Crown Law released the notebook to Wellington forensic examiner Linda Morrell. When Morrell provided her report, including copies of the notebook pages, Allen was astonished to see its first page, which he claims had previously been blank, now had writing on it, detailing cannabis seizures. The page hadn’t previously been disclosed, he says.
Morrell found this front page had been written after the notes on the reverse side of the page, which began on Operation Maria’s first day. She also found at least three different inks had been used for notebook entries on January 21 when Allen’s farm was raided – which De Luca told the IPCA was because he carried several pens in his pocket.
Morrell noted two pages had been ripped out of the notebook. Only one has ever been explained by De Luca – the one he passed to Detective Wilson to send the MODA message.
There were also six more pages that Allen’s lawyers had never seen, including what appear to be coordinates. (Allen had the coordinates analysed by a former Air Force air traffic controller, who couldn’t match any of them exactly with locations in De Luca’s affidavit.) These pages had four holes punched on the right-hand side, while the notebook’s front pages have two holes punched in the left-hand margin.
Dissatisfied with the extent of Morrell’s examination, Fairbrother wanted the notebook re-analysed in Australia, but Crown Law refused. In 2000, Allen began legal action to obtain the notebook. As part of this, he obtained copies of all documents held by the Court of Appeal. Remarkably, there was no copy of the notebook showing how it had originally been filed by De Luca in 1995, nor any reason why it was released from the Court of Appeal.
The only record of the notebook was copies of the original 19 pages supplied to Allen in June 1995, which Allen had appended to his own affidavit. There was no copy of the extra page with the 8772 tally on it, or the six pages with coordinates, or of the first page that Morrell noted had been written at a later date.
North & South has inspected Allen’s Court of Appeal file and verified the only copies of the notebook are the original 19 pages that were attached to Allen’s affidavit.
When Allen inspected his police file in Napier, he was shocked to find there was now no copy of De Luca’s notebook there, either.
In 2002, Crown Law agreed to release the notebook to the Ministry of Justice for further examination by former Auckland CIB head Bryan Rowe, if Allen applied for the Royal Prerogative of Mercy. This is a process where people claiming they’ve been wrongfully convicted ask for their case to be reconsidered.
There appears to be confusion over how this process would work. Allen believed he needed the notebook re-examined before he could lodge his Prerogative of Mercy application. However, Crown Law insisted it would only release the notebook once an application had been made, resulting in a Catch-22 situation.
In September 2003, deputy solicitor-general Nicola Crutchley confirmed Crown Law still had the notebook and undertook to preserve its integrity until it was sent to the Justice Ministry. However, she also stated they had no copies of the notebook as it had originally been received by them and sent to the Court of Appeal in December 1995, meaning a comparison couldn’t be made with the notebook now.
What subsequently happened to the notebook is unclear. It appears that in 2005, Crown Law released it to the police soon after further approaches from Allen’s lawyer. This was seemingly done without notifying Allen or his lawyers, despite the undertaking to preserve the notebook’s integrity until Allen lodged his Prerogative of Mercy application. Crown Law refused to answer any questions about the notebook, or its return to police.
Police wouldn’t answer any questions about the case, saying it had been considered by the courts and IPCA, and officers involved had left the police. They also refused to say if police still held De Luca’s notebook. Laurie De Luca declined to comment.
For Allen and those who’ve supported him over the years, the failure to disclose this crucial notebook at trial; the lengths to which De Luca and Crown Law went to prevent the notebook being released; its hasty and unlawful release from the Court of Appeal; the differences between copies of the notebook that have been obtained; and the disappearance of virtually any copies of the notebook from official files, provide fertile ground for accusations something untoward has taken place.
“It was the only physical exhibit, no photos, nothing else,” says Allen. “It was the thing that was most crucial to me to try and salvage anything from, and it was given away, and killed off any opportunity to prove something. Where is it? It’s gone.”
The Withey Case
Of course, it’s entirely possible all this can be explained by misunderstandings, mistakes, and misinterpretations by Allen. Even if extra information was later added to the notebook, it wouldn’t prove Allen wasn’t growing cannabis on his property. But altering official documents is something we don’t like to believe occurs in New Zealand – although of course it does. In fact, it happened at Napier police station, in the early 90s.
As part of Operation Brother in 1993-94, Dannevirke freezing worker Craig Withey was charged with manufacturing cannabis oil. The case rested on an under-cover officer’s identification of Withey. However, in preparing documents, police changed the undercover officer’s description of a tattoo on the offender’s arm so that it matched Withey’s. The charges were eventually dismissed, with Withey awarded full costs.
Despite one judge saying the officer in charge’s “explanation for the changes which occurred in the original hand-written transcript stretches the bounds of credibility”, the officers involved faced no legal action. However, the matter was settled out of court, after Withey sued police.
The Other Concerns
The struggle to get De Luca’s notebook is indicative of the difficulties Allen has faced obtaining official documents. For example, when Allen requested records of the helicopter’s route, he was told the logbook had been destroyed. Police have refused to disclose who the helicopter pilot was.
It seems no police notebooks, other than De Luca’s, have ever been released, despite promises from police.
Another major concern for Allen is the jury’s makeup at his second trial; he alleges numerous members had family or friendly connections with police. One juror’s son was a Hastings police officer, but the court allowed her to remain because her son wasn’t involved in the drug operation.
Allen’s trial lawyer, Chris Reid, says he knew nothing of the alleged links between police and some jurors at the time, but what he’s learnt subsequently concerns him. “Something definitely went wrong in that second trial. There were a whole lot of shenanigans that went on, from the police, to the jury – but I can’t really say too much about that. I was staggered, staggered by the outcome. I think it was an appalling display of law.”
Of course, it must be remembered the Court of Appeal rejected Allen’s arguments of innocence and an extensive IPCA report by former assistant police commissioner Roger Carson cleared police of any wrongdoing.
However, that report, which Allen strongly rejects, contains errors and numerous statements that are difficult to substantiate. For example, Carson appears to claim he interviewed the scientist who analysed cannabis samples from Allen’s farm. But that scientist, Shaun O’Neill, told private investigator Lindsay Dow last year he had no recollection of ever speaking to Carson – and he believed he would have recalled this because a workmate has the same name.
North & South sought to clarify this and many other points from Carson’s report. However, the IPCA said the report was done many years ago, Carson no longer worked for them, and those interviewed by IPCA investigators remained confidential. It wouldn’t comment on the report’s findings, but Allen could request a review. Roger Carson said he was unable to comment.
The Return Home
In September this year, Shaun Allen made his way to the Napier-Gisborne railway line that runs through the Esk Valley and started walking. He wanted to return to his old farm, see how it looked, enjoy the river views and remember the dreams he had. Inevitably, what welled up instead were emotions of anger and injustice.
The road into his farm is now closed with a locked gate, the property largely in commercial forest. But walk about 3km along the mothballed railway line and you reach the old farm. Standing on a bluff, squinting into the sun – the Esk River a silver sliver below – Allen remained silent for some time.
“Those bastards had no right to take this off me,” he said, wiping his eyes with the bottom of his polo shirt. “You wouldn’t have believed the beauty of this farm. I wanted this for my family. Excuse the expression, but it’s pretty fucked up.”
This was frontier country, he reckoned, where you could live off the land. “Easy. Watercress, puha, rabbits, possums, eels – there’s everything here.”
A lot of people say, come on, how can you have 13 plots of cannabis – more than 1000 plants – and not know about it? Allen’s response is that, given the plots had been there for several years before he bought the farm, wouldn’t that mean the previous owner, John May, must have known about them also? (May denied any knowledge of the plots.)
Given he’d only had the farm eight months, didn’t live there, only went there every few days, and mainly farmed the section below where the cannabis was found, Allen says there’s no way he could have known about plots hidden in scrub. And that’s a fair point: even from the railway line, you can barely see 5m into the dense tangle of bush.
The idea Allen was the only cannabis grower here seems dubious. Along the railway line are numerous motorbike tracks and footprints, showing the area is still easily accessed by outsiders. And cannabis growing persists: North & South happened across a large clearing with dozens of spade-holes typical of cannabis plantations across it, and a wire-netting enclosure where seedlings might have been kept.
None of this proves Allen is innocent – only that cannabis growing happened here, both before Allen had his farm and afterwards. But for Allen to have been the only person for 15km growing cannabis that year seems unlikely.
Make no mistake, Shaun Allen has made himself unpopular with plenty of people over the years, including police. One investigator who helped Allen describes the case as a “small town lynching”, a chance for police to settle scores with Allen.
At Allen’s sentencing, lawyer Peter Williams described the Crown’s pursuit of his client as one of “unrivalled ferocity” and how he’d been “brought to his knees”.
After Allen was found guilty, Chris Reid wrote to prosecutor Geoff Rea noting Allen had been convicted almost entirely on police officers’ evidence: “I also think it is correct to say this was a case where there was a certain degree of emotional feeling, perhaps even hostility, between some members of the police force involved and the accused.”
Reid said instead of the trial being The Queen v Shaun Allen, “the real parties to the case were The Police v Shaun Allen”.
Even now, Reid believes Allen got a raw deal. “He was a fairly wild fellow in his day, and I think the police did have it in for him. The police decided they needed to hang it on someone, and Shaun was more or less the scapegoat.”
Part of the reason that police pursued Allen so hard was because it was the first Proceeds of Crime Act case where property was likely to be seized. The two police operations – to convict Allen, and to take his farm – ran in tandem, with the farm forfeited the day Allen was sentenced. The case was well publicised, those involved knew what was at stake, and an acquittal would have been embarrassing. The Crown even blocked Allen using his farm as security to raise money for his defence, meaning he couldn’t call crucial experts, Allen says.
Reid says he still supports Allen’s efforts to clear his name. “He was a character. And I’ve never known anyone else to fight [a conviction] like that.”
Others, too, remain concerned about his conviction.
“Shaun Roberts Allen – a very aggrieved man,” recalls former Court of Appeal registrar Andy Ogilvie, who dealt with Allen at the court, and later helped his investigations.
Now a lawyer, Ogilvie says numerous aspects of the case against Allen simply don’t ring true.
“I have two concerns in my life of what I think were probable miscarriages of justice: Shaun Roberts Allen, and Mr Scott Watson.” (Ogilvie worked at Wellington’s High Court when Watson was convicted of murdering Ben Smart and Olivia Hope.)
Ogilvie says he admires Allen’s tenacity in still fighting, “but I hope it’s not sending him too paranoid. You can get an awfully sore, bloody forehead banging your head against a brick wall. Because the system has closed ranks, well and truly covering their tracks… Nobody carries a grudge like this without there being an injustice.”
Former detective Bryan Rowe, who helped Allen, agreed. “In my experience as a private investigator, people who go to the lengths to which Shaun Allen has gone to try to clear his name are very likely to have been wrongfully convicted,” he told a Hawke’s Bay newspaper in 2003. (Rowe died in 2011.)
Two of Allen’s other lawyers, Isaac Koya and Russell Fairbrother, also believe Allen had legitimate grievances.
“I did think he was on to something, with the way the Crown were acting with that secret squirrel stuff with the notebook,” says Fairbrother. “If there’s nothing to hide, why hide it?
“What does impress me about Shaun is he’s never given up on this, and he’s worked hugely hard, from day one, to prove his innocence. Because they took his farm and left him a pauper.”
“Tell him to forget it,” says Allen’s Court of Appeal lawyer, Isaac Koya. “I think from whichever way you look at it, he’s done his dash with legal proceedings.”
Koya isn’t the only one to suggest Allen just gets on with his life. “But I can’t do that, and I won’t do that,” says Allen, “because there’s an end to this, and I’ll bring that about, one way or another.”
Is he bitter? He thinks about that for a moment. “I have to be bitter. I’m bitter as.”
Bitter about losing his farm and future. Bitter about the “bloody horrible” six months he did in Mangaroa Prison, where he missed the birth of his fourth child. Bitter about how it overwhelmed his relationship with his partner and has hung over their six kids. Bitter his father died without seeing Allen clear his name, and that his ill mother may not see it, either.
“I really just want the public to know what they did to get a conviction. I carry a hell of a lot of emotion about it. And it would be good to have that gone. I’m looking for a release. It’s like being in jail all the time. Actually, when you’re in jail, you know you’re going to get out. But this, it just keeps going.”
Allen is a man at the end of his tether. “I’ve had enough, I’ve actually had enough. It’s consumed a huge amount of my time, a massive amount of my thinking time. Every night, I wake up and my head’s going – it doesn’t stop. Sometimes I go out and get pissed, just to forget about it.” Other times he’s felt like killing himself, to make it all go away, and got “pretty close”.
He admits he’s been aggressive in pursuing his case, and “very confronting to a lot of people. And a friend said, ‘Shaun, you’ve got to back off.’ But it’s so frustrating, everything is just so not right. And I’ve spent years and years, just trying to get the documents and they do everything not to give them to you.
“But I believe you never give up on what you know is right. I want them to say they were wrong and say sorry. The bastards ruined my life. How can they sleep at night, the bastards?”
Of course, some reading this will scoff and note Allen is hardly a model of rectitude. He’s lied about things, got off another cannabis charge when he knew he was guilty, and told conflicting stories to North & South. Some of this can be attributed to forgetting things over time, but some were deliberate.
For example, at one point Allen described a run-in years ago at a Napier restaurant where he overheard other diners accusing him of selling drugs to schoolkids (something Allen utterly rejects). Allen confronted them, and when the other diners left the restaurant, they were attacked by two men. Initially, Allen denied having anything to do with this. However, when pressed and again asked if he was involved, Allen admitted, “I did, actually. I rung someone up, and they got slapped up. You’re the first person I’ve ever told.”
But for those who doubt Allen, it’s worth asking how much they truly know about him, and worth remembering he’s had no criminal convictions for 25 years – nearly 40 without the 1993 case.
Allen admits he still gets the urge to settle things with his fists. It’s a kind of release for him. Barrel-chested and broad-biceped, he’d be a match for most opponents. But his shoulder is buggered, and he doesn’t need the trouble. Interestingly, in all his stories of fighting, he’s the winner – something he can’t repeat in life.
He’ll be 60 on January 21, the 25th anniversary of his farm getting raided – a bittersweet anniversary. Getting on, getting old, too old for the stress and shit.
He’s largely broke, the Lotto windfall a memory, spent on lawyers and investigators, debts and bad investments. There’s no money to hire lawyers. He lives in a shed behind his daughter’s place, but has plans for distributing a hemp cosmetic range. At one stage, he had a brewery making hemp beer. The irony of this, from a man arguing he didn’t grow cannabis, appears slightly lost on Allen, who just sees it as a way to make a living. Others, naturally, will see it as another example of Allen’s lifelong fascination with this plant.
And many may be tempted to agree with the views of Allen’s probation officer in 1994, that he was an “intense individual” who “creates his own reality and believes in it with passion”.
Allen accepts he’s been obsessed with vindicating himself for 25 years, but swears he was convicted on faulty evidence, and believes a crooked system has reinforced this miscarriage of justice ever since.
“I’ve never been able to say it, you’re not allowed to say it – don’t mention conspiracy. Well, I am. I know this was a conspiracy. And I hope that sooner or later, people will see that.”
The string of mistakes, missing documents, contradictory evidence, oversights and apparent implausibilities in the case against Allen give weight to his accusations.
At the very least, the words of Judge Ian Borrin in a 2003 IPCA report on Craig Withey’s case bear repeating.
“The lesson which emerges from the entire matter is trite but fundamental,” he notes. “It is that there is in all police work, whether special duties or routine, a need both for manifest integrity, for meticulous attention to detail, and for meticulous attention to correct procedures. A failure in the latter respects may lead to suspicion, well-founded or not, that there has been a failure of integrity.”
This was published in the January 2018 issue of North & South.
Some families of Pike River mine victims suspect a piece of vital evidence may have been spirited away by the mining company and lost.Read more
Making Auckland a liveable city is an unenviable task, writes Bill Ralston, but it's clear the mayor needs more power.Read more
Northland kaumātua, master carver, navigator and bridge builder Hec Busby was hoping for “no fuss” when he accepted a knighthood.Read more
The story of Sidonie-Gabrielle Colette, a heroine of French literature, focuses on her early struggles.Read more
Complacently relying on algorithms can lead us over a cliff – literally, in the case of car navigation systems.Read more
The Q System One, as IBM calls it, doesn’t look like any conventional computer and it certainly doesn’t act like one.Read more
The week before a major tax report is released, Green Party co-leader James Shaw has again challenged his government partners to back the tax.Read more