The pair, who the Herald is not identifying for legal reasons, were charged with obtaining more than $100,000 by deception after the business they ran together collapsed while allegedly owing millions of dollars.
They are accused of continuing to take orders and money from customers while insolvent, hoping they could trade their way back to solvency.
The pair believe their case should not have resulted in criminal charges, but should have been dealt with in civil court.
They believe they were arrested and charged because another man – the primary complainant, who is not a police officer – had personal connections within NZ Police.
According to disclosure documents seen by the Herald, a Wellington constable made a formal police complaint saying he had paid the defendants more than $12,000 for their services but never received the product. About a year after payment, he received an email stating the company had gone into liquidation.
This was the same constable later assigned to redact and prepare the transcript for the defendants and their lawyer.
He was told no criminal offending was identified as a result of his complaint, and he was given advice on how to pursue the matter in a civil setting.
The redacted comments were made during a period of the phone call when the caller thought he was on mute.
Charges were eventually laid against the defendants in relation to other customers, and a call transcript between the primary complainant and police has been produced as part of the evidence to be used at trial.
That transcript was sent to the constable, who was based in the forensic photography unit and was asked to make redactions to it as part of his regular duties.
According to the call transcript, the complainant referenced “two different sources in the police force”, including the names of those he said gave him advice and were “trying to push it through for me”.
One source was an inspector and the other was a former cop.
The comments were made during a period in the phone call when the caller thought he was on mute and was talking to somebody else in the background of the call.
While the constable originally redacted these details, they were later unredacted after the possible conflict of interest was discovered.
In an email to the officer in charge, the inspector referred to by the complainant said he had received phone calls from the complainant, who was “urgent in his tone” and wanted “police action to deal with the matter”.
He said the primary complainant’s brother-in-law, the former cop, was a friend. The inspector had only met the complainant once or twice, “many years ago”, he said.
He said he also received calls from other members of the complainant’s family.
The inspector, who was working overseas at the time, said he advised them to call local police.
“I had no intention of becoming personally involved,” he said.
“From my recollection, I didn’t get involved any further, noting that they were successful in reaching police and getting action … my role was simply one of providing some advice on the legalities of the matter, and on getting timely police action.”
The constable’s “potential conflict”, as it was described by the officer in charge, was detailed in a job sheet she disclosed to the defendant couple and their lawyer later on.
The defendants felt their case should have been a civil one, rather than criminal.
“I was unaware that [he] had been involved in completing the redactions until after they had been done,” she wrote.
The redactions were checked by another officer and “everything had been done appropriately and correctly”.
“[The constable’s] involvement in these tasks has been administrative only and he has received clear instructions on what his tasks were. He had no involvement in the investigation of the case.”
Police and the Crown prosecutors for the case later decided the constable’s involvement in the redactions should be disclosed “in order to be fully transparent”.
When asked by the Herald about the conflict, Detective Senior Sergeant Martin Todd said it was not uncommon for previously redacted information to be reviewed and released.
“Police have reviewed the redaction request and application process, and determined that no further action is required.”
Todd would not comment further due to the case being before the court.
One of the defendants told the Herald they were “just blown away” to learn of the conflict and the constable’s involvement with the redactions.
“This is information that shows that someone in police has connections to this individual … It was shocking to find out.”
He has laid a complaint with the Solicitor-General and plans to complain to the Independent Police Conduct Authority as well.
His partner and co-accused said regardless of what people thought of them, “everyone should be afforded equal due process under law”.
Without accountability, the rules and laws governing the country were “only suggestions”, and “that erodes trust in the system as a whole.”
The fraud trial is scheduled for next year.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.