Long road to justice: The man who is taking his 30-year fight to the Privy Council

Sunday, 9 February 2025

Shaun Allen on the disused railway that cut through his farm, and gave access to trespassers and cannabis growers.

In 1994, Shaun Allen was jailed for cultivating cannabis and had his farm confiscated. Since then, he’s spent his life and most of his money trying to prove his innocence. Now his appeal could become the last New Zealand case heard by the UK’s Privy Council. Mike White reports.

Tuesday was a good day for Shaun Allen. A really good day.

The Napier man woke to an email from his lawyer in London telling him an application had finally been filed with the Privy Council, asking it to review the conviction Allen has fought so long and hard to overturn.

“The injustice of this conviction has marked both his and his family’s lives, and cries to be corrected,” the submission stated.

In 1993, police discovered cannabis growing on the Hawke’s Bay farm Allen had bought just months before.

Within a year, he’d been sentenced to 18 months in jail for cultivating cannabis.

And, using the Proceeds of Crime Act for the very first time, officials confiscated his 340ha farm, Allen becoming a poster child for getting tough on criminals by amputating their supposed source of profits.

But Allen insisted he knew nothing of the cannabis found on his rugged property where he raised wagyu cattle.

From the day he was arrested, he fought back, fought to prove his innocence.

For 32 years.

And so Tuesday was a good day, with good news.

After being knocked back at virtually every stage by the New Zealand justice system, here was some hope at last, Allen thought.

Shaun Allen with his 2-year-old daughter on his Hawke’s Bay farm before it was confiscated.

Maybe someone here will see this case for what it is - an extraordinary, troubling chapter in our justice system.

The Farm

There’s absolutely no guarantee the Privy Council’s law Lords will consider Allen’s case, let alone rule in his favour and possibly quash his convictions.

But if they do go beyond this weeks 20 page submission, which lays out the grounds of Allen’s alleged wrongful conviction, they will be confronted by bizarre and bemusing events, alongside confounding and concerning actions.

Allen bought his Esk Valley farm in May 1992.

On January 21 1993, a helicopter rose over a ridgeline where Allen was fencing, and winched down a police officer.

The officer asked Allen whose cannabis was growing on the property.

Allen said it wasn’t his, and insisted there wasn’t any on his farm.

But, eventually, police said they found 1038 plants across 13 plots, and charged Allen with cultivating cannabis.

At his first trial, the jury couldn’t decide on his guilt.

At his retrial in January 1994 he was convicted and sent to jail.

Allen hadn’t been a complete saint previously, and had minor drug convictions.

But he’s always been adamant the case against him wasn’t true - and wasn’t possible.

What police discovered on his land were plots that appeared old, covered in weeds and bush, irrigation hoses embedded in the ground and swallowed by deep grass, kānuka stakes rotted through.

Signs showing the road to Shaun Allen’s farm, near the small settlement of Waikoau in Hawke’s Bay.

One of the officers uprooting the plants noted most plots were “completely overgrown”

“They were not typical of the majority of plots which are found with the soil fully tilled and fertilised.”

The area was well known for cannabis growing, with previous police operations having found numerous plots.

The farm’s former owner had discovered cannabis plantations at least twice. Neighbours erected a sign warning against “illegal gardening”.

There was easy access into Allen’s farm: via a gravel road; along the Napier-Gisborne railway; or across the Esk River.

At the time Allen was supposedly digging holes for more than 1000 seedlings on some of the toughest parts of his farm, doctors’ records show he was suffering from “debilitating” giardia, which lasted several months, and caused him to be hospitalised frequently.

Allen always argued the cannabis was grown by trespassers, was self-sown, or the plots were old and abandoned from years before he bought the farm.

Critics naturally counter that Allen must have known there was cannabis on his property.

But Allen says he didn’t live there, and only visited once or twice a week since purchasing the property eight months before. When he did, he was working on the lower land, not the tough top country where the cannabis was, he says.

Police insisted no other cannabis was found within 15km of Allen’s property during their four-day annual cannabis search dubbed Operation Maria. The argument was that it couldn’t have been an itinerant grower, because what were the chances all their plots would be on Allen’s land?

But cannabis grower Denis Pullar insists in affidavits that police took 400 of his plants from a site across the river from Allen’s farm, during the same operation.

The case against Allen was given greater impetus because it was the first time the new Proceeds of Crime Act had been used, allowing authorities to confiscate land where cannabis was grown.

Shaun Allen on his old farm, which was confiscated in the first Proceeds of Crime Act case.

So they froze his farm, meaning Allen couldn’t use it as security to raise money for his defence, his costs eventually bankrupting him.

And they withheld crucial material that could have helped Allen prove his innocence at his trials.

And in the end, they got their man.

The Plants

Perplexingly, no photos exist of the 1000-plus cannabis plants police say were growing on Allen’s farm, or the plots.

One of the officers running Operation Maria (Officer A) said his camera was broken on the day they raided Allen’s farm.

But police returned to Allen’s farm the next day and took photos of his shed and objects seized from it. They also went back to some of the plots, but no photos were taken.

Officer A returned the following day to take samples of irrigation hose and fencing from two plantations, but again took no photos.

At the police station, all exhibits were photographed - except the cannabis samples Officer A had retained.

Officer A said the cannabis on Allen’s farm “had not reached maturity”, and ranged in height from 30cm to 1.5m, and would have been 2m when fully grown. (Another officer recorded pulling up plants that were 15cm to 30cm.)

He selected four sample stalks, and these were sent to the Institute of Environmental Health and Forensic Sciences (IEHFS) the forerunner of today’s ESR.

An old cannabis growing plot hidden in bush near Allen’s farm.

But what IEHFS scientist Shaun O’Neill said he received was “mature cannabis with female flowering heads”.

Grown outdoors, cannabis only matures when days become shorter, usually from March, with female plants flowering after males, and harvesting occurring in April and May.

Experts insist it is virtually impossible for cannabis grown outdoors to have flowering heads in January.

But with no photos, there is no way to know whether what was sent for analysis was from Allen’s farm.

In addition, there is considerable confusion about the cannabis exhibits’ handling.

Officer A said he gave them to the exhibits officer. The exhibits officer’s jobsheet makes no mention of this despite listing other items Officer A gave him from Allen’s property.

The exhibits officer recorded he was given the cannabis samples by another officer, five days after the raid on Allen’s farm.

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But much later, the exhibits officer said he remembered Officer A giving him the cannabis samples the night of the raid.

Other police statements about what happened to the samples don’t match, and claim different people were involved in their handling.

When they were forwarded to IEHFS, they weren’t sent by registered post, as required, to show a continuous chain of custody.

For this reason, IEHFS scientist Shaun O’Neill refused to give the samples a Certificate of Analysis vouching for their reliability. Only after police pressured IEHFS to issue a certificate, so the samples could be introduced at Allen’s court hearings, did this happen.

Allen’s lawyers were oblivious to this background, and simply accepted the plants were a random sample of what had been found on his farm.

The Warrant

Police didn’t have a search warrant for Allen’s farm and were required to send a “switch message” or “MODA” to the police commissioner detailing this, and describing what was seized.

Officer A said he got another officer (Officer B) to do this at the Napier Police Station.

Officer B twice stated he doubted he sent the MODA, as he was in the field with the helicopters and vehicles, and suggested Officer A had done it.

But 16 years later, Officer B told the Independent Police Conduct Authority he did remember sending the MODA, when he was at the police station collecting staff lunches - despite the operation base having a cook.

The note Officer A supposedly gave instructing Officer B to send the MODA from Napier station was never disclosed.

The MODA was actually sent from Hastings Police Station.

Shaun Allen insists he never grew the cannabis police say was found on the farm he had recently purchased, and says the plots were old and overgrown

The original MODA describing what had been seized was never disclosed to Allen’s lawyers, and police later said it had been lost or destroyed.

Officer B said he no longer had his notebooks.

The search warrant for a raid on Allen’s home, and the application for it, were never disclosed to Allen’s lawyers before his trials.

Police later said all copies of the warrant and application had been lost. They have also disappeared from Napier court files.

No record exists of who alleged Allen was growing cannabis on his farm.

The Notebook

Police have always said Officer A’s notebook was the only contemporaneous record of where the police team flew, and what was seized.

When Shaun Allen won $500,000 in Lotto in 1997, he spent most of it on lawyers and investigators, trying to clear his name.

However, it was never disclosed to Allen’s legal team.

When his lawyer requested it for Allen’s appeal, police claimed “the daily totals are not recorded in the notebook, and the information in the notebook is difficult to decipher.”

But when copies of 19 pages from it were eventually released, it clearly showed daily tallies of cannabis seized, along with other information.

However, the tally in Officer A’s notebook of 5610 plants didn’t match the 8772 recorded by the National Drug Intelligence Bureau.

Later, police provided another page supposedly from Officer A’s notebook with tallies adding up to 8772. (Strangely, this page has four holes punched in the left margin - the other 19 pages only had two holes.)

In 1998, another lawyer for Allen requested the notebook be made available for forensic examination. Officer A refused to let Crown Law release it, and it was returned to him without being copied, until the High Court ruled it wasn’t his property.

When forensic document examiner Linda Morrell looked at the notebook, she discovered the first page had writing on it - a page that had never been disclosed.

Morrell noted the writing on this page had been done after the notes on the reverse of the page.

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Moreover, she found at least three different inks had been used for notes about the day Allen’s farm was raided. Officer A told the IPCA he carried several pens in his pocket.

Morrell found two pages had been ripped out - only one of which was explained.

And she also discovered six more pages in the notebook that had never been disclosed. (These had four holes punched in the right-hand margin, which didn’t match the notebook’s other pages.)

Crown Law refused further forensic examination of the notebook, and police are understood to now hold it.

But no copies of the entire notebook can be found on the Court of Appeal file, despite Crown Law saying it was provided to the court. Only the 19 pages police initially provided to Allen’s lawyer in 1995 exist on the file.

All copies of Officer A’s notebook have disappeared from Allen’s police file in Napier.

Police also told Allen the logbook of the helicopter’s route during the search had been destroyed.

It appears no other police notebooks about the operation have been disclosed.

The Hurdles

Appealing to the Privy Council was superseded in 2004 when New Zealand established the Supreme Court.

Teina Pora, whose conviction was overturned by the Privy Council in 2015, and is believed to be the last New Zealand case heard there.

But those whose trials occurred before then can still appeal to the same body that quashed the convictions of David Bain, Mark Lundy, and Teina Pora.

Allen’s appeal is likely to be the last time a New Zealand case is considered by the Privy Council.

His application cites three main grounds: fresh evidence about cannabis growing in the area and the police operation; the fact at least six jurors at Allen’s second trial had police connections, including one with a son in the local force; and that “persistent non-disclosure” of crucial information, and withholding of documents by police, led to a miscarriage of justice.

It’s the latest step in a struggle to clear his name that has consumed half Allen’s life.

When Allen won $500,000 in Lotto, he spent most of it on investigators and lawyers.

He has exhausted all his appeals in New Zealand, and applied to the Criminal Cases Review Commission to investigate his conviction, but is still waiting for their decision after four years.

As his Privy Council application states: “The extent to which this injustice has plagued the Appellant is evidenced from the intensity and time over which he has pursued this appeal: To the best of his financial abilities, he has not stopped working to overturn his conviction since he was released from prison.”

Despite Allen’s dogged battling, his case has never grabbed headlines the same way controversial murders have.

But the injustice he insists he’s experienced is just as real, and has badly affected those around him. His family has suffered, his kids have suffered, his father and brother died before Allen could clear his name.

Long road to justice. Shaun Allen, who has fought for more than 30 years to prove he was wrongfully convicted of cultivating cannabis on his Hawke's Bay farm.

When he was arrested, Allen had two young children. Now he has 13 grandchildren.

It’s a flesh and blood measure of how time has passed, and how long he’s been fighting.

The fact it’s taken so long is because “every part of the system knocked me back, it never stopped,” Allen says.

“Basically, I want freedom within. It’s a thing that never leaves you - at night, during the day, it never stops, the thinking about the injustice.

“It’s not about money at all. I just want the wrong righted.”

What Allen does want, is those who convicted him to be outed.

“But the system looks after its own. And I’ve seen this right through this case.

“Will they be held accountable? Nah. Won’t happen.”

Crown Law declined to comment while the matter was before the Privy Council. Police were unable to provide a response. Officer A was unable to be contacted but has previously declined to comment.

Allen pays huge tribute to his lawyer, rising legal star Rabah Kherbane from top London chambers Doughty Street.

Kherbane has dealt with numerous international cases, involving terrorism, national security, torture, and Guantanamo Bay detainees.

After learning of Allen’s case, he has worked pro bono for several years to prepare the Privy Council application.

Allen pays huge tribute to Kherbane, along with other lawyers who’ve helped him over the years, the investigators, and friends and family who have stuck by him.

“I’m incredibly hopeful,” says Allen.

“There’s not one part of this case that’s actually honest or accurate, right from day one, right the way through.

“And when you get a lawyer of Rabah’s pedigree and credentials, and he sees a lot in your case, it makes you very hopeful.

“But, hey, I’ve had a lot of setbacks from the justice system.”

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