Police hunt for Tom Phillips' helpers, but will they face charges if found?

The discovery of campsites where Tom Phillips and his children hid in the Waikato bush for almost four years revealed an array of unexpected items: guns, fizzy drink cans, liquor bottles and even an extra quad bike. Now, police are zoning in on what they have suspected all along - that the family had help to stay hidden. Soumya Bhamidipati reports.

It is a case that has compelled the nation: a father who stole away with his children and somehow managed to stay hidden in the Waikato bush for almost four years, despite intense efforts by police to locate them.

Phillips died after a shootout with police in the early hours of Monday. An officer was shot multiple times and remains in hospital with significant injuries.

One of Phillips' children, who was with him at the time, then began assisting police. More than 12 hours later, the remaining children were located at a remote campsite, deep in dense bush about 2 kilometres away from where Phillips was fatally shot.

In some ways, it was the end of a long and complicated saga. But the police investigation into how the family managed to remain concealed for so long is just getting started.

As early as one month after the family's disappearance, police indicated they thought some in the community knew more than they were letting on.

"We do believe there are people who know Tom that have vital information which will help us," Waikato West Area Commander Inspector William Loughrin said in January 2022.

"This is incredibly frustrating for police and we strongly urge those holding information to share these details with us as soon as possible."

That frustration would continue to grow.

This week, following the discovery of a second campsite, Detective Senior Sergeant Andrew Saunders said it was clear the family had help from the outside and police would be examining the items they had found.

"We've got to identify, have they come from burglaries? Have people purchased them? Can we link them back to stores to see, has he stolen them or have people purchased them for him?

"Given what's occurred in terms of the attempted murder of a police officer, we think it is absolutely important that we continue to look for those people that have been supporting Tom Phillips and hold them accountable."

But what exactly does holding them accountable mean?

RNZ asked police if they were hoping to lay charges against the helpers: "We could not speculate exactly what each outcome would be upon identifying those individuals, it would be on a case-by-case basis," a spokesperson said.

They also would not comment on whether they had any particular people in their sights or how many might be involved, but reiterated, "Police believe Phillips had help."

What's in store for those who helped Phillips

So, could charges be laid against those who helped Phillips stay hidden?

University of Waikato Law Faculty professor and dean, Leilani Tuala-Warren, who specialises in criminal law, said they could be charged with being accessories after the fact.

"So that just covers people who knowingly help someone who has been a party to or has committed an offence," she said.

But it was more complicated than that.

"Now, what's really vital is that several ingredients have to be satisfied under the criminal law. The first is that there has been an offence that's been committed, and in this instance by Tom Phillips - at the time that they comforted or assisted this person, they knew that this person had committed that offence or was a party to that offence."

Their actions might include tampering with or actively suppressing any evidence, she said.

Police would need to be able to prove that when the helper was providing assistance, it was for the purpose of enabling Phillips to avoid arrest.

If charged, they could be liable to a term of imprisonment, which could not be more than half of the maximum penalty for the offence that Phillips had committed.

But obviously, given his death, Phillips will not be facing charges or court.

"Well, it does complicate the situation but if it is a clear case that, you know, you have CCTV and all the elements have been established there, it does make it more difficult that we haven't got that principal offender but in saying that, it isn't impossible," Tuala-Warren said.

She also noted police would likely consider the type of assistance rendered.

"Was it, for example, giving food for the children?And what's the public interest in prosecuting that sort of assistance? So, it will be up to the police's prosecutorial discretion, I guess, in that situation."

Apart from accessory after the fact, those who helped Phillips could also be looking at a more serious charge: aiding and abetting.

"When we are looking at things such as if, for example, there was a supply of firearms or the quad bike that they're talking about, liability or secondary party liability can kick in, and it covers people who not only commit the offence, but all the people who aid and abet and incite and counsel and procure that person to commit the offence."

Again, the maximum penalty would be tied to the offences proven against Phillips, and the penalties tied to those.

"The party to the offence or the secondary party to that offence... will be liable to that same penalty."

Those who knew but said nothing

Marokopa is a small, tight-knit community, and it's likely many rumours have circulated over the years. What about those who did not actively assist Phillips, but perhaps saw him or heard something, and did not tell police?

It was extremely unlikely they would face charges, Tuala-Warren said.

"It's very difficult to prove knowledge, because, of course, we cannot read what's in people's minds.

"There has to be something tangible that attaches to it... we can't go and charge people for what they knew and what knowledge they had without acting on it."

Nothing 'even close' to this case

It was hard to say how much evidence police would need to proceed with a prosecution, Tuala-Warren said, but whatever evidence they did have would need to be "quite strong".

"Because you would have to prove your case to a very high standard, which is beyond reasonable doubt."

There was no legal precedent that she could recall.

"It's quite a novel and unique situation, I mean, there are lots of cases that have dealt with secondary party liability, lots of cases that have dealt with accessory after the fact, but getting this unique blend of facts that we have before us now? No, I can't off the top of my head think of anything that is similar.

"I do not think I have come across anything in the law, a case that has come and been decided under that law, that is even close to it."

In another world

What if the stand-off between Phillips and police early on Monday had ended differently? Tuala-Warren again said it was hard to pinpoint exactly what charges he would be looking at, especially because all the circumstances of the case were not publicly known.

"He would have faced a few charges, you know, from day one... in relation to the children, if he had breached some court orders from the family court, he's kidnapping, in essence, perhaps, those children, or abducting them.

"In terms of the crimes against property, so we're talking about the theft, the robbery, the burglary, those again would be added to a list of charges.

"And then it brings us all the way to what happened, quite tragically, where he lost his life, and that was the shooting of the police officer... he could have been charged with attempting to murder.

"So there's a whole range of charges, possible charges, that could have been brought, and each of those has its own penalties under the law.

"It's really hard to say what an end sentence may have been, but no doubt it would have been years, years of imprisonment."

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