‘Strategic hunters’ and the controversial police tactic

A 12-month Stuff investigation into a controversial police technique used to crack cold-case killings, which led to a false confession and collapsed murder investigation, has revealed that strong concerns about police interviewing tactics have been raised for many years. Blair Ensor and Mike White report.

On August 16, 2019, the police’s national crime manager, Detective Superintendent Tim Anderson, sat down and excitedly wrote an email to colleagues.

‘‘Just wanted to let you know (if you’re not aware yet), that Tom and DS Dylan Ross got a full confession from the primary offender for the Lois Tolley murder today. The offender admitted pulling the trigger on the firearm that killed Ms Tolley.

‘‘They both worked with Detective DS Steve (Raro) Anderson this week intensively for three days with this offender.’’

Tolley, 30, had been shot pointblank in her Upper Hutt flat in December 2016, and the failure to nail anyone for the killing had vexed police badly.

The breakthrough came when Detective Inspector Tom Fitzgerald introduced a new method for interviewing suspects in cold cases – the Complex Investigation Phased Engagement Model (CIPEM).

‘‘Obviously this is a remarkable success,’’ Anderson continued, ‘‘and the second confession now . . . based on employing Tom’s CIPEM theory and application.

‘‘I take my hat off to Tom and Dylan and Steve and the other CIPEM trainers who are not only hunters, but what I would call strategic hunters, who are determined, well-prepared, patient and thorough.’’

The cheers and back-slapping rippled through Police National Headquarters in Wellington, detectives convinced they had struck gold with a new tool to coax crims into confessing.

But the celebrations were hasty, the success illusory.

In just over two years, it became clear the ‘‘primary offender’’ in Tolley’s murder had been manipulated into making a false confession, and the case against him and two other defendants collapsed.

Moreover, the other ‘‘confession’’ Tim Anderson talked of followed a CIPEM interview that a top lawyer has described as ‘‘very troubling’’ and ‘‘oppressive’’, and for separate reasons never made it to court.

By early 2022, the first stories broke about the previously secret CIPEM interviewing technique.

By September, police had been forced to hand over crucial documents explaining how the controversial new method worked.

By October, Fitzgerald, the ‘‘strategic hunter’’, CIPEM’s architect and the country’s top investigator, had retired.

Comfy chairs and McDonald’s chicken

There are any number of reasons why crimes go unsolved, drifting from front page to back burner to cold case, over months and years: no forensic evidence, nobody sees what happened and, commonly, nobody wants to talk to cops.

And this is what led Tom Fitzgerald, a police officer for more than 30 years, to create CIPEM.

The idea was simple: treat people as humans, show empathy, don’t judge. Get away from movie stereotypes with a detective hammering the table while accusing a suspect of death and deviance.

Instead, under CIPEM, suspects should be treated almost informally, with interviews being more fireside chat than fiery interrogation.

Instead of tables between suspect and detective, there would be sofas or comfortable chairs arranged at a ‘‘10 to 2’’ position, or 90 degrees. Note-taking would be replaced by shared takeaways.

The interview room should be painted neutral shades, preferably a single colour. The aim was to establish a relationship, make the suspect comfortable – and hope they started talking.

And on paper, CIPEM seemed as innocuous as it was common sense. Indeed, a November 2021 review found it was in line with international best practice.

However, that review curiously didn’t look at any examples where CIPEM had been used, and just considered it as a theory.

If it had investigated the reality, the conclusions may have been quite different.

Kathleen Smith and baby Penny-Tui

When Fitzgerald got the green light to roll out CIPEM in 2018, officers began suggesting cases where it could be used.

One of the first related to a 1985 child homicide. On May 1, 2019, Fitzgerald picked up the phone and rang Kathleen Smith, the suspect in the death of Dannevirke toddler Penny-Tui Taputoro.

Somehow he convinced her to front up at a Hamilton police station the next day, without a lawyer, to talk to a detective about the case.

Decades earlier, Smith had described a series of mishaps, including a fall and accidentally dropping Penny-Tui, which led to the child’s fatal head injuries.

Despite suspicions about her story, police concluded the 1-yearold’s death was an accident and Smith was never charged.

But a coroner ruled PennyTui’s brain injuries were consistent with her being severely shaken.

The Taputoros weren’t happy about the outcome, but it was more than three decades before they asked police to reopen their investigation.

‘‘I look forward to the coff [confession] and seeing some kind of closure for the whā nau,’’ Anderson wrote in an email to the officer reviewing the file in October 2018.

Fitzgerald hand-picked Detective Sergeant Maania Piahana to interview Smith.

Smith insisted she’d told the truth in 1985, but Piahana pushed back: ‘‘Kathy . . . I don’t want you to go back down that same rabbit hole. Today is about making sure that everybody has the truth so that everybody’s lives can move on.’’

Slowly, Smith recounted a new version of events. She was emotional – crying, hyperventilating and often unable to give clear answers.

‘‘I think my life is going to be over,’’ she said at one point. Piahana comforted and confronted Smith in equal measure. ‘‘This is going to make your life better because we take it off your shoulders

. . . I just need you to tell me what happened.’’

Smith then said she was playing with Penny-Tui, bouncing the child on her knee, before Penny-Tui fell backwards. After being challenged that her story still didn’t explain the severity of the child’s injuries, Smith admitted she’d shaken her. Only later, Smith said, did she learn of the dangers of shaking a baby.

After more than four hours, the gruelling interview ended.

In October 2019, a senior Manawatū detective sought advice from the Crown about charging Smith, and appeared uneasy about the CIPEM interview.

‘‘I believe that a . . . prosecutor should review the interview to accurately appraise themselves not only of the contents but the challenges this interviewing style is likely to raise in any future proceedings.’’

Crown solicitor Ben Vanderkolk said he believed there were grounds to charge Smith with manslaughter, provided there was medical evidence of Penny-Tui’s injuries.

Vanderkolk felt the information gleaned during the interview was reliable. Piahana was firm with Smith, but engaged in a ‘‘kind, patient and respectful’’ manner, and wasn’t ‘‘forceful or overbearing’’.

While Smith at times ‘‘operated under significant psychological distress’’, she had a law degree, knew her rights, and chose not to end the interview.

In Vanderkolk’s opinion, the interview was likely admissible.

But veteran defence lawyer Nigel Hampton, KC, holds a very different view, after reading a transcript of the interview obtained by Stuff.

‘‘It’s quite extraordinary. I’ve seen some . . . extreme interviews over the years, but I’ve never seen anything quite like this,’’ says Hampton, who is a member of the Criminal Cases Review Commission – an independent body established to investigate miscarriage of justice claims.

He believes there are numerous issues with the interview, the most glaring of which is the ‘‘unremitting persistence’’ of Piahana over a lengthy period.

‘‘A person might well start to be compliant to try and put an end to the ordeal. You’re in foreign surroundings, a police station which has some authority built around it, and you’re being talked to at great length . . . and the only out really being offered is, tell me what I want to hear and what the parents of the child want to hear, and then you’re out of here.

‘‘So what will a person do in the end? They comply with it, and that in itself is oppressive.’’

Hampton also takes exception to what he says are ‘‘misleading’’ statements by the interviewer.

‘‘It’s that persistency of that one theme that if you give me the answers we both want . . . your life will be better for it.

‘‘Crikey dick, the whole point of this interview exercise was indeed to disrupt her life, it wasn’t gonna make her life better at all.

‘‘And that’s the fundamental lie that’s being sold here. And that’s never gonna stand up in court.’’

Ultimately, Piahana’s CIPEM interview with Smith, now known as Katrina Werahiko, was never tested.

As police readied the case for prosecution, they found PennyTui’s medical records had been destroyed.

X: An execution, manipulation, and a false confession

Lois Tolley’s murder was so shocking and violent that police described it as an ‘‘execution-type killing’’.

Intruders smashed into her home, and shot her in the neck, in what is believed to have been a standover related to drugs.

Despite early police bullishness that the culprits were in their sights, no arrests followed.

It wasn’t until July 2019 that an informant suggested a man known as X was involved. (The names of all those charged with Tolley’s murder are suppressed.)

Inspector Scott Miller, who headed the inquiry known as Operation Archer, contacted Fitzgerald, who was working in Australia at the time, asking for help with interviewing X.

Four officers drew up a profile of X, identifying his ‘‘vulnerabilities’’, and Fitzgerald chose two of his most trusted interviewers for the job: Ross and Steve Anderson.

Assisted by Fitzgerald, they spent five hours rehearsing and role-playing the day before interviewing X.

On August 14, they picked up X from Rimutaka Prison, where he was being held on other charges, brought him back to Wellington Central Police Station, and gave him McDonald’s.

Working as a tag team, with Fitzgerald and Operation Archer officers monitoring the interview from a nearby room, Ross and Anderson quizzed X on what he knew about Tolley’s murder.

X insisted he wasn’t involved, but eventually mentioned four people he thought might have been. The interviewers then turned this on X, indicating he had now narked on these people.

Thinking he had committed the cardinal sin of snitching on mates, X told Ross two days later that he had shot Tolley. ‘‘I just prefer to go to jail bro for a long time, to save the people I love.’’

However, when X described how he killed Tolley, little matched the reality of what had been found at the crime scene.

Despite this, everyone accepted X’s ‘‘confession’’, leading to Tim Anderson’s celebratory ‘‘strategic hunters’’ email that afternoon.

Two years later, that hubris was humbled when Justice Simon France excoriated the interviews, saying X had been manipulated into making ‘‘admissions’’ that weren’t credible and had been ‘‘improperly obtained by an unfair process’’.

Justice France strongly criticised ‘‘repeated and serious’’ deliberate breaches of interviewing rules and said the CIPEM technique was used to ‘‘unacceptable excess’’.

Perhaps most damningly, he ruled the interviews weren’t a pursuit of a ‘‘neutral truth’’ but ‘‘a sustained pursuit of a particular ‘truth’ ’’.

Charges against X were withdrawn. And when the same was done with two other defendants, for totally separate reasons, the entire police case collapsed.

In 2022, police commissioned Auckland KC Aaron Perkins to review Operation Archer. However, his findings, and even his terms of reference, remain hidden, with police refusing to release them.

Nearly six years after Lois Tolley’s murder, nobody has been held accountable.

Tom Fitzgerald: The man with the plan

When Fitzgerald was confronted with Justice France’s stinging judgment of X’s interview, his reaction shocked many.

As well as describing aspects of the ruling as merely France’s ‘‘opinion’’ or ‘‘view’’, Fitzgerald claimed CIPEM wasn’t at fault, but the interviewing officers had ‘‘stretched their skill’’.

‘‘Like all of us, [Anderson and Ross] will look at those criticisms, take those on board and grow and improve from it.’’

Fitzgerald had joined the police in 1991, graduating top of his class, and rose quickly through the ranks as a detective, eventually heading the Criminal Investigation Branch and becoming the country’s most senior investigator.

He interviewed Scott Watson, the prime suspect in the disappearance of Ben Smart and Olivia Hope from the Marlborough Sounds on New Year’s Day 1998, and eventually arrested him.

A year later, he was involved in the investigation of Kirsty Bentley’s murder.

Fitzgerald said he had played a

part in more than 100 homicide investigations and made no bones about murder cases being the pinnacle for any decent detective.

‘‘If this isn’t treated as your gold medal event then you’re in the wrong job,’’ he told Stuff in 2017.

‘‘When I get the call I’m 100% sure we’re going to solve it because I’m 100% confident in my ability and the ability of my team.’’

The most high-profile homicide investigations he led were both in Christchurch – the rape and murder of deaf woman Emma Agnew in 2007; and the killings of Tisha Lowry and Rebecca Chamberlain, whose bodies were found beneath the floorboards of a property, which became known as the ‘‘House of Horrors’’, in 2009.

In 2018 Fitzgerald was made an officer of the New Zealand Order of Merit (ONZM) for services to the police and community.

Around this time, then-police commissioner Mike Bush asked Fitzgerald to pull together a programme for ‘‘high-end interviewing’’, and Fitzgerald was able to put his years of experience into a formal model – CIPEM.

Despite claiming there was nothing to hide, police and Fitzgerald fought to keep CIPEM’s details secret, twice forcing Stuff to take legal action to obtain information and documents.

And when criticism of CIPEM emerged, it was met with defensiveness from Fitzgerald, and claims the method was benign.

In Fitzgerald’s words, CIPEM was ‘‘about teaching people how to engage with people with respect and empathy’’.

‘‘I mean, this is just being a good police officer and talking to people.’’

During a 2021 court hearing for X, Fitzgerald denied CIPEM interviews were about getting confessions. ‘‘This is built on engaging with people for lifelong relationships.’’

‘‘What are you talking about,’’ lawyer Robert Lithgow, KC, responded with incredulity. ‘‘Lifelong relationships with X? What on earth are you going on about? Honesty, relationship, genuineness – this is all jibberjabber, isn’t it?’’

‘‘Well I take offence to that,’’ Fitzgerald replied indignantly.

CIPEM by the book and a bit of kung fu

So, what is it about CIPEM that has led to sustained concern and criticism?

A confidential training manual obtained by Stuff labels it an ‘‘offender targeting system’’ and outlines its nine stages, from profiling the suspect, to the ‘‘close’’.

Between these, the manual stresses the need for extensive preparation and rehearsal (‘‘The interviewer must be patient and follow the plan, never become argumentative, frustrated or angry’’); and how to deal with resistance from the suspect and build rapport (‘‘Active listening creates an environment of trust and likeability in which the suspect believes the interviewer is genuinely interested in what they have to say’’).

The document traverses Aristotle’s theories on persuasion, and takes a curious diversion into pseudoKarate Kid philosophy when insisting interviewers remain agile during the conversation.

‘‘This is similar to a martial artist in the ring; having honed their skills for many years, they do not enter the ring with a set play. What matters is their ability to move, duck, and weave and counter their opponent through the confidence they have gained through years of practice and passion.

‘‘Further, a martial artist can use their opponent’s force and aggression against them. This is how a small person can defeat a much bigger and stronger opponent . . . Similarly, the expert interviewer who has earned the right to be confident is happy to counter dialogue raised by the suspect.’’

The training document treats interviewing as a science. But it is also a blueprint for obtaining confessions.

‘‘The key to an effective appeal is the emotional journey the interviewer has taken the suspect on by getting them to a point in which they see value in releasing their cognitive load.’’

The manual concludes by claiming the majority of suspects interviewed with CIPEM thank the interviewer, ‘‘and are happy to continue to engage post-interview, throughout the judicial process and beyond’’.

Police have been unable to provide any specific evidence of this. Nor could they substantiate claims made in the training manual that CIPEM had withstood testing in the Court of Appeal; or that CIPEM was a ‘‘world leader’’ in aspects of suspect interviewing, saying only Fitzgerald had that knowledge, and the information ‘‘is not otherwise documented or held by police’’. Fitzgerald didn’t respond to numerous approaches for comment this week.

Mauha Fawcett and Verdun Perry: Serious failings and ‘very bad advice, indeed’

While CIPEM officially began in 2018, its roots extend back many years before that.

So too do concerns with police interviewing, and Fitzgerald’s actions with suspects.

His questioning of a Mongrel Mob prospect being investigated for the 2008 murder of Christchurch sex worker Mellory Manning was later deemed ‘‘persistent and even somewhat aggressive’’, though not ‘‘oppressive’’, by a High Court judge.

Mauha Fawcett, who was later shown to be brain-damaged from foetal alcohol spectrum disorder, struggled to provide answers during several interviews, with Fitzgerald at one point exploding: ‘‘Don’t lie to me and say you don’t know . . . don’t insult me. ‘‘I know when you are telling the truth, and you know I know when you are telling the truth – I can see it in your face, I can see it in your eyes.’’

In 2014, Fawcett was found guilty of Manning’s murder and sentenced to life in prison. However, a ‘‘confession’’ Fawcett made to Fitzgerald was later ruled unreliable, and his conviction quashed. Fitzgerald’s actions again came into the spotlight in the case of Verdun Perry, accused of manslaughter after Arran Gairns’ body was found near Ashburton in 2014.

After talking to a lawyer, Perry indicated he didn’t want to continue speaking with police. But while Perry was having a cigarette, Fitzgerald appeared and advised him that remaining silent might not be in his best interests.

Perry made a further statement to police, and was later charged.

His lawyers argued Perry had been pressured by Fitzgerald, in contravention of his right to legal advice, and his statement shouldn’t be used at his trial.

In the Supreme Court, all five judges agreed Fitzgerald shouldn’t have approached Perry and given advice contrary to what his lawyer had told him.

And all agreed that crucial conversations with Fitzgerald should have been recorded. However, the majority allowed Perry’s statement to stand.

But two dissenting judges were scathing in their views of what Fitzgerald had done. Justice Susan Glazebrook pointed to ‘‘serious failings’’ and labelled Fitzgerald’s actions ‘‘disingenuous’’ when encouraging Perry to continue speaking with police.

Then-chief justice Sian Elias was even more blunt. ‘‘The ‘advice’ [Perry] was offered by the detective inspector was very bad advice indeed.’’

While these two cases predated CIPEM, Fitzgerald’s style and skill at getting suspects to talk was honed during these years.

At a 2021 High Court hearing, Ross, who worked with Fitzgerald for 11 years, described his boss as ‘‘forceful’’ and ‘‘determined’’, and said CIPEM was ‘‘very clearly Tom’s concept’’.

‘‘So the model . . . it’s a formalised model of what we’d been doing for some time, and he’d finally managed to put this into some structure and on paper.’’

Ross admitted some officers didn’t like interviewing, and were relieved when people refused to make a statement.

‘‘But that’s not me. And that’s not Tom Fitzgerald.’’

Angela Blackmoore: A spectacular success

Despite criticisms of CIPEM, Fitzgerald’s method has played a part in at least one spectacular success.

The brutal killing of 21-year-old Angela Blackmoore in 1995 was one of the country’s most notorious cold cases.

Pregnant, and with her 2-yearold son asleep in bed, she was beaten with a bat and stabbed repeatedly in her Christchurch home.

There was confoundingly little evidence left behind by the killer, and as the decades ticked by, it increasingly seemed justice wouldn’t prevail.

But in 2019, police offered a $100,000 reward for information, and detectives received a tipoff pointing to two people who weren’t considered suspects previously – Blackmoore’s friend Rebecca Wright-Meldrum and her boyfriend at the time, Jeremy Powell.

Investigators interviewed the pair separately using CIPEM on October 25 that year, as Fitzgerald watched on.

Powell was spoken to by Detective Pete Boyd. He initially said he’d told officers decades earlier what he knew about the murder, but said he would do anything he could to help.

But after Boyd told him police were speaking to a named associate who knew what had happened, Powell took a sip of his water before making a stunning confession.

On the night of August 17, 1995, he’d gone to Blackmoore’s home with a bat and Bowie knife hidden in his trenchcoat.

‘‘[I] knocked her down with the bat, and then I stabbed her . . . in the head with a knife.’’

Powell said he was offered $10,000 to murder Blackmoore – money he was never paid.

He is now in jail serving a life sentence for the killing. WrightMeldrum and another man, David Hawken, have pleaded not guilty to murder charges and are due to stand trial next year.

The future of CIPEM: ‘I think it has to be scrapped’

Within weeks of Tom Fitzgerald telling a court he saw little reason to review CIPEM because it was just good police work, he’d commissioned interviewing expert Mary Schollum to scrutinise the model.

In November 2021, she found CIPEM fitted with the accepted international interviewing model PEACE, and suggested CIPEM be renamed PEACE Plus.

However, Schollum dealt with CIPEM only as a theoretical technique.

And this is where the fundamental gulf between proponents and critics lies – between the theory and reality, between words on a page and words in an interview room, between admirable aims and miscarriages of justice.

The concern is that legal requirements are glossed over or ignored in these interviews, with a sense that the ends justify the means if someone confesses or is convicted.

As Nigel Hampton, KC, says, CIPEM may have been developed with good intentions ‘‘but the way it’s being used is of considerable concern’’.

‘‘On paper it looks fine. In practice and the way it is being practised, it is far from fine.

‘‘I think it has the ability to subvert justice . . . and will lead to further miscarriages – I’m quite firm on that. If you get that sort of interviewing technique being used on people who are not necessarily of particularly high intellect, or have other deficiencies, say the equivalent of your Teina Pora, you’ll find those sort of people going along with and buying into the suggestions that are being made over a long period of time, resulting in false confessions.’’

Police say CIPEM has been used in five investigations, and attempted unsuccessfully in another two. In two of the CIPEM cases, police say a suspect has been cleared. They refuse to say how many convictions have resulted from CIPEM interviews.

What the future of CIPEM, or PEACE Plus, is remains unclear.

In part, that’s because, on October 14, Detective Superintendent Tom Fitzgerald, 58, retired from the police.

His resignation seemed abrupt and surprised many, but Fitzgerald insisted he had been considering retiring for some time, and his decision had nothing to do with scrutiny of CIPEM.

And he noted he would continue doing contract work on interviewing for police.

But given Fitzgerald was CIPEM’s author, its biggest promoter, its key trainer, and was involved in every CIPEM case Stuff is aware of, it’s unknown how the technique might now be used.

This week, Detective Superintendent Dave Lynch said police were currently conducting ‘‘a full review of all levels of interview training and practice undertaken by police’’, including the role of CIPEM.

However, Hampton has an unequivocal warning: ‘‘Unless [police] radically change it, I think it has to be scrapped.

‘‘If they keep on using it . . . it will end up causing more problems than it solves. It’s going to cause [police] further embarrassment.’’