Told you so
October 28, 2011
High Court agrees with me
You might remember that I argued (here and here) that the Broadcasting Standards Authority’s decision to uphold complaints against TVNZ’s documentary on the Aramoana massacre on grounds of taste and decency and children’s interests, was wrong.
The High Court has agreed with me. It has upheld TVNZ’s appeal. (I should disclose here that I did a bit of research work for TVNZ on this appeal, though it was Julian Miles QC who argued the case).
The programme
TVNZ had interviewed one of the police officers who was there, 20 years ago, when David Gray went on a shooting spree, killing 13 members of the public and a police sergeant. Officer Tim Ashton recalled that he had yelled out to Gray, who was raining shots through the window of the house he was bunkered down in, “You’re fucking good with women and kids. Come out here and have a go at us”.
Gray emerged with a concealed gun; when he revealed it there was a shoot-out and he was shot. Ashton tells us:
He screamed when he was on the ground: kill me, fucking kill me! He repeated that quite a few times. I did think for a second of shooting him. I pointed the firearm at him directly as he was on the ground. For a brief second it crossed my mind because of the horrendous things he’d done, but I’d like to think I didn’t shoot him for two reasons: one, our training and professionalism and another one – just the code of human decency that we not lower ourselves to the standard of a murderer.
The BSA decision
A majority of the BSA held that the use of the words “fucking”, twice, at 7:30 pm on Sunday, breached standards of good taste and decency and children’s interests, since children may have been watching. They pointed to research showing that 71% of people disapproved of the use of this word in interviews, and an earlier decision in which they upheld a complaint about a man shown swearing on a documentary. They accepted that the programme was important, but felt that the standard was too, and it would have been easy to bleep the words or broadcast the programme later.
The BSA minority’s dissent
The BSA’s chair, Peter Radich, dissented, saying the word was “an expressive and natural use of language in an extreme and dire situation”; Ashton was “considered and sober” during the interview; bleeping the words would have demeaned him; the broadcaster provided two clear warnings about the content; and the use of the words was not disturbing or upsetting but powerful.
The judge’s decision
Essentially, the judge agreed with Peter Radich. When you look properly at the context of the programme, it was simply wrong to call this a breach of standards.
In an appeal like this, the broadcaster has a fairly stiff task. It has to show that the BSA acted on a wrong principle, took into account irrelevant considerations or failed to consider relevant ones, or was “plainly wrong”.
Justice Simon France accepted that the majority decision traversed most of the relevant contextual factors, but – interestingly – he said:
The real debate is whether, having been noted, [the factors] were taken into account in reaching the conclusion.
This suggests that it’s not enough for the BSA to set out the arguments or list the considerations – it must actively grapple with the relevant factors in its reasoning process.
The relevance of earlier decisions
France J accepted that the BSA need not refer to past decisions, or even act consistently with them, though he said overlooking a very similar case that was decided differently may support a finding that the decision was “plainly wrong”. (Here, he referred to four BSA decisions, some of which I mentioned in earlier posts, that allowed the f-word to be used. It’s noteworthy here that all four decisions are more than 12 years old. Were BSA members a bit more liberal about swear-words in the 1990s?)
The majority’s failure to properly consider context
He said the upshot of the majority decision was that “fuck” could never be used in early evening. He essentially found that they had fettered themselves by not considering whether an exception could be made, because if ever an exception should be made, it should be made here. He emphasised that it’s still not open season on “fucking” (actually, that’s not quite the way he put it). The general rule is still that this sort of language will be unacceptable when children might be watching.
France J felt that the majority didn’t properly consider the context of the use of the words: the importance of the historical narrative, the lack of gratuitousness, the difference between this programme and a typical interview.
The majority judgment does not discuss the minority reasoning, and thereby fails to explain why the context of the show, and the various features that have been discussed, do not properly make it an exception to the general rule.
The NZ Bill of Rights Act
Perhaps most important – at least for Bill of Rights trainspotters like me – is this paragraph, late in the judgment:
In terms of the New Zealand Bill of Rights Act 1990, I consider that requiring the deletion of this word from the programme is an unjustified limit. Whilst the children’s interests standard was rightly accorded high value, so too was the programme. Within that programme the word occurred as part of an accurate narration of past events, it was used in context, and had no stand alone emphasis. The slot was within the period that might mean some children were watching or present, but the programme was not itself likely to be of interest to children. The words occurred halfway through it and were preceded by a general language warning that would have alerted parents. Balancing these factors, and the general context earlier discussed, in my view a prohibition is not a reasonable limit.
What is significant about this is that it seems to be an independent ground for upholding the appeal. The decision is plainly wrong because the limitation imposed was not a reasonable limit, demonstrably justified in a free and democratic society, under s 5 of the Bill of Rights Act. I think we must read this as saying that this question of reasonabless/proportionality is a question of law, and one that the BSA can get wrong.
Simon France J is not just saying that proportionality requires that the BSA follow a particular methodology. He says the decision was not substantively proportionate. The decision to uphold the complaint wasn’t a justified limit on TVNZ’s speech.
He doesn’t tell us much about how we work out what’s proportionate and what’s not though. Looking at the things he considers, it’s fair to say that:
– an inquiry into the value of the speech is required;
– we should also look to the value of the standard: and here it seems implicit in his reasoning that we need to look at the value of the standard in the particular circumstances: how much was the objective of the standard threatened in this case? Not much, he concludes. It was part of an narration of past events, used in context, not unduly emphasised, in a programme unlikely to interest children, and preceded by a warning. He’s saying: whatever harms the use of the word “fucking” does to the vulnerabilities of children or societal norms of decency, those harms are not very great in this case;
– the two sides need to be balanced. Here, the judge evidently thought it was a no-brainer.
For my part, I think this is pretty significant. It’s one thing (albeit rare) for a judge to overturn an administrative decision as “plainly wrong” or for failure to properly consider relevant considerations (here, context). That’s standard administrative law. It’s another to say that a decision breached a broadcaster’s speech rights under the Bill of Rights and overturn it for that reason. Here, both are in play, and they overlap. But I think this case shows that the Bill of Rights is starting to earn its stripes.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 50 Comments »
NZ Lawyer column
October 19, 2011
In my recent NZ Lawyer column, I reverted to a blog format:
Let’s face it. You’re busy people. You have short attention spans. So let’s move to a blog format and you can graze the bits you find most interesting.
Pride or prejudice?
Over the next weeks and months, we will see how much harm the book does to our national security. My prediction: about none. That’s what happened in the Pentagon Papers case, and in the first tranch of Wikileaks releases. Despite vociferous claims that the sky would fall, the sky didn’t fall. Governments are far too ready to invoke the mantra of national security when they’re really seeking to protect themselves from embarrassment or accountability. Too often, I think, the courts defer.
Judges hold they are not breaking the law
Media misreporting suppression order? Surely you jest
Still, the BSA started warning him a few complaints ago that if he kept up the nit-picking about immaterial matters, they would penalise him with a costs order. This time round, they followed through. They ordered him to pay $50 as “some form of deterrent”.
Some have noted that it is a little odd to deter people from correcting errors. And that, in a story about how extraordinary it is that a child could discover something so damned far away, the actual distance involved might be thought immaterial. I’m inclined to think that the BSA might have got confused about the various thresholds involved here. Maybe it’s defensible to say this wasn’t a material error of fact, since the story focuses on a child’s discovery. It’s a different thing to say that the complaint was frivolous and trivial. In this case (though not in some of Mr McDonald’s other complaints), that’s going a bit far, I think. In any event, it’s a different thing again to say that this is one of the set of trivial cases warranting a costs order against a complainant, something the BSA has imposed only a handful of times. This wasn’t the one to pick out and ping him for.
Text message
Topics: General | 4 Comments »
Staggering bunk from Collins over surveillance bill
October 4, 2011
Apparently, Police Minister Judith Collins has a law degree. That was not evident during her performance on Morning Report today. Was she deliberately misleading us, or did she simply not know what she was talking about?
She said:
Actually, video surveillance has been used by the police with the support of the Court of Appeal for around 15 years…
[Police] have always felt that their actions were legal because they have been supported by the Court of Appeal time and time again in the last 15 years.
Bollocks. The first time the Court of Appeal ruled clearly that search warrants authorised video surveillance was on 19 November last year, in the Ureweras case. That finding – which the Court of Appeal said the Crown didn’t “really” argue for – was overturned by the Supreme Court about nine months later.
Let’s stretch a point and note that about a month before that, on 7 October last year, the Court of Appeal had indicated that it thought there was a strong argument that search warrants authorised video surveillance, though it said there was “doubt” and noted some contrary arguments. Again, the Court of Appeal didn’t have the benefit of argument on the point, because the Crown conceded that the surveillance was not lawfully authorised.
Let’s just let that sink in. As recently as last year, the police’s own lawyers were not arguing for the power to do what the Police minister says the courts have long accepted they can.
The year or so since those two cases is the only period of time when the law clearly supported video surveillance on private land during a warranted search, and even then the police knew that the issue was an open one and shortly to be ruled on by the Supreme Court. The case was argued in May, and from what I can gather, the Crown lawyers took such a bath at that hearing that they could not have had any confidence of victory.
What Court of Appeal cases can the Minister be referring to? I can only guess that it’s cases like Gardiner and Fraser. In those cases, the Court of Appeal could indeed be said to have “supported” the police use of surveillance cameras. But those cameras were not used on the target’s land. They did not involve search warrants. They were “over-the-fence” surveillance from a neighbour’s window, with the permission of the neighbour. So they say nothing about any power to instal hidden cameras on someone’s land.
In fact, they don’t even say that police can always use over-the-fence surveillance. The Court of Appeal has explicitly left open the question of whether these might count as a search under the Bill of Rights. If they were pointed at a bathroom or bedroom, they might well violate the Bill of Rights protection against unreasonable search and seizure.
Later in the Morning Report interview, there was this exchange:
Q: But we will now get warrants which will specifically say that we’re using video surveillance in this case.
Collins: Well, actually, they’ve always had warrants.
Q: But the warrants didn’t actually cover this, did they, before?
Collins: Because the Supreme Court, by a majority decision of 3-2, said that the warrants, although they were issued by the courts, were not able to be issued by the courts for video surveillance because there was no specific law allowing video surveillance by the police or any other agency.
No, Minister, they have not “always had warrants”. There has never been a statutory power that expressly includes the power to conduct video surveillance. Anyway, as far as I know, up until October last year, the Court of Appeal cases that dealt with video surveillance did not involve search warrants at all. The cases were the over-the-fence variety. Again, those cases are largely unaffected by the Supreme Court’s decision, and didn’t need a fix-up law.
We should also note that the Bill does not provide for any warrants. It doesn’t create a new surveillance warrant regime – that option was rejected. Nor does it require police to tell this issuers of search warrants over private land that they plan to instal cameras, though that seems to be the expectation.
But the Minister’s most astonishing statement is the last one. The Supreme Court did not rule 3-2 that the warrants were “not able to be issued by the courts for video surveillance”. There was no thin majority for that ruling. All five of the Supreme Court judges said the warrants were not able to be issued by the courts for video surveillance.
Two of them found that, notwithstanding this illegality, the evidence should be allowed in. One found that, notwithstanding the illegality, some of the evidence should be allowed in. But that is a far cry from a ruling that the issuing of warrants was lawful.
It is hard to believe that the Minister of Police does not know the difference.
Topics: Privacy tort, Search warrants, Trespass | 679 Comments »
NZ tops OIA study
October 4, 2011
A new international study ranks NZ number one for freedom of information. Countries around the world were sent information requests relating to their budgets. We passed with flying colours. A depressing number of other countries flunked.
Topics: Official Information Act | 48 Comments »
Submission on the Video Camera Surveillance Bill
September 29, 2011
Felix Geiringer and I drafted a submission on the Bill, and got it in with 5 minutes to spare before the midnight deadline. (Hope you enjoyed your opportunity for public input, people.)
Here it is:
Submission to the Justice and Electoral Select Committee
SUMMARY OF VIEWS
We oppose the Bill in its entirety.
The Bill is unnecessary. Section 30 of the Evidence Act enables the courts to admit unlawfully obtained evidence where the seriousness of the offending justifies it.
The Bill is too broad. We ought not to be giving the every public official blanket immunity for unlawfully installing hidden cameras on private property during a search.
The Bill is undesirable. It violates the rule of law and fundamental liberties. It breaches constitutional norms. If the Police have been behaving in a flagrant or unjustifiable manner then there ought to be repercussions.
The Bill is partially ineffective. The only impact that the Supreme Court’s decision in Hamed has on “over-the-fence” surveillance is in relation to Bill of Rights considerations. However, the Attorney-General twice stated in the house that surveillance will not affect human rights challenges under the Bill of Rights.
If the Bill is to be passed notwithstanding these objections, the following amendments are imperative:
- Make it certain that s 21 New Zealand Bill of Rights Act 1990 considerations are preserved. The Attorney-General twice assured the house that this was what is intended, but it is not unambiguous on the wording of the Bill.
- Remove any doubt that the location of a camera is relevant to its lawfulness. The courts need to be able to distinguish between cameras in hallways and cameras in bedrooms.
- Eliminate the retrospectivity. This is the element of the Bill that is an affront to the rule of law and violates constitutional norms. This element is also unnecessary.
- Limit the Bill to its stated purpose, namely preserving prosecution evidence. To achieve this purpose it is unnecessary to insulate the Government from all civil or criminal liability for any unlawful surveillance.
- Limit the Bill to the Police. These broad powers and immunities ought not to be conferred on every single person conducting a public function.
RECOMMENDATIONS
Do not pass this Bill.
If our primary recommendation is not followed then, in the alternative, amend the Bill as follows:
- Expressly preserve the jurisdiction of the courts to consider the legality of a search (including the use of video surveillance cameras) in accordance with the New Zealand Bill of Rights Act 1990, by inserting a new clause 4(2) to read as follows: “Nothing in this Act limits the rights contained in s 21 of the New Zealand Bill of Rights Act 1990.”;
- Clarify that the use of a video surveillance camera can be unreasonable and therefore unlawful by virtue of the manner of its use, by removing the words “(without limitation)” and “positioning” from the definition of “use” in clause 4;
- Make the Bill prospective only and not retrospective, by removing clause 5(1)(a) (which would also remove the need for paragraph 3(a) and clause 6);
- Make it clear that the Bill is not intended to include warrantless searches of private land by inserting a subparagraph (a)(iii) in the definition of search in clause 4 to read as follows “does not include a warrantless search of private land, and”, replace the word “and” with the word “but” in subparagraph (a)(ii) of the definition of search in clause 4, and replace the word “includes” with the word “is” in paragraph (b) of the definition of search in clause 4;
- Preserve the state of the law outside the question of evidence in criminal trials, by removing subclause 5(2) (and therefore removing the need for the words “without limiting subsection (2)” in subclause 5(3)); and
- Limit the scope of the Bill to the Police, by replacing the words “a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990” with the words “a constable of the New Zealand Police as defined in the Policing Act 2008”.
The truth about Hamed
New powers not justified by Court of Appeal cases
The Attorney-General in the First Reading Speech states that “[o]n two very recent occasions, the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant.” He therefore concludes that “the police were accordingly fully justified in their belief that the use of covert video surveillance in connection with a search warrant was not unlawful.” It is understood that the Attorney-General is referring to the cases Hodgkinson v R CA221/2010, 7 October 2010 and the Court of Appeal’s decision in Hamed. In fact, a review of those cases does not support the Attorney-General’s contention.
In Hodgkinson, a case argued in September last year, the Crown conceded that a search warrant could not lawfully authorise the trespassory planting of a camera. In its decision, the Court of Appeal expressed “some doubt about that conclusion” and considered that “it is strongly arguable”. However, the Court also acknowledged that there were arguments the other way and went on to reach its judgment on the assumption that the camera’s use was unlawful.
In Hamed, argued before the Court of Appeal last June, again the proposition that the search warrants did not authorise the surveillance operations “was not really challenged” by the Crown (para [36], CA decision). Even so, the Court of Appeal found that the wording of the warrant in question was sufficiently broad to include the capturing of video images by planting surveillance cameras. This turned on the Court’s view that the warrant was able to able to extend to anticipatory evidence. This ruling was in November of 2010. This could not give rise to long standing belief in the legality of such surveillance.
It is difficult to accept the proposition that the Government had a reasonable belief that trespassory searches were lawful without express authority. The contrary principle was established in the case of Entick v Carrington in 1765. That decision has been consistently followed around the common law world in the intervening 246 years, including expressly in New Zealand.
The fact that the Government was aware of this limitation on police powers is also apparent from the discussions surrounding the Search and Surveillance Bill (2009) and the associated Law Commission report in 2007.
Section 30 already solves the problem for past searches
A suggestion used to justify the Bill is that without it serious criminals may escape justice. Many people have pointed out the problem with this claim. Section 30 of the Evidence Act allows courts to admit evidence even if it has been illegally or improperly obtained. Essentially the courts must balance the extent of the impropriety against seriousness of the crime and make a decision that protects an “effective and credible system of justice.” Indeed, the Supreme Court in Hamed admitted all of the evidence against the defendants in that case who had been charged with serious offences.
The Attorney-General expressed his concern in paragraph 6 of his 21 September 2011 letter to Charles Chauvel that the Bill was necessary notwithstanding s 30. This was because “in cases where there was a high degree of expected privacy and other investigative techniques were available (however difficult to deploy) the risk of exclusion is much higher than it was in respect of Operation 8.” In short, the Bill of Rights balance might favour defendants in other cases.
There are several objections to this. First, the courts in the past have not been slow to admit improperly obtained evidence. Second, the Attorney-General omits to mention the trespass element, which weighed heavily in the Hamed balance, but may not be present in other cases. Third, the “however difficult” bit is an overstatement because actually the courts have never required the police to show that other methods were impossible, just impractical.
Finally, and most significantly, if the police have seriously infringed privacy rights without good justification during a search, it is right and proper that they should be penalised.
The Attorney-General tells us that the government has listened to these reasonable criticisms and undertaken to preserve s 21 of the Bill of Rights. Therefore there is now no need for this Bill to deem all past uses of surveillance cameras during searches to be lawful.
Constitutional impact
As drafted, the Bill violates the rule of law and constitutional norms. There is nothing wrong with Parliament prospectively overturning the effect of a court decision. However, the retrospective nature of this Bill and the way it has been expressly presented as a preference for the views of the New Zealand Court of Appeal over the views of the New Zealand Supreme Court risk undermining the constitutional relationship between those courts and parliament.
It is not the case, as has been suggested, that this Bill merely returns the law to the ‘common law position’ before the Supreme Court’s decision. Instead, it retrospectively validates illegal actions by the Executive branch of government. The Supreme Court did not make new law, but merely applied existing law, passed by Parliament, but which had previously been wrongly interpreted by the Court of Appeal. The Supreme Court decision therefore determined that the Police had for some time been acting illegally. To retrospectively validate such behaviour by the Executive is highly dangerous and sets a most undesirable precedent.
It is common to distinguish considerations of unreasonableness under s 21 of the Bill of Rights from other forms of unlawfulness. The courts will usually consider other forms of unlawfulness first, and their conclusion will be a factor in considering unreasonableness. However, ultimately it is also unlawful to breach s 21. A finding that a search was in breach of s 21 is a finding that that breach was “unlawful.”
Clauses 5(2) and 5(3) of the Bill are therefore ambiguous as drafted. If it is genuinely intended that this Bill not affect Bill of Rights considerations it needs to say so expressly. Otherwise there is a danger that arguments about unreasonableness under the Bill of Rights will be fatally undermined by the fact that the behaviour is deemed lawful.
Positioning should be considered by the Courts
The Bill expressly deems the use of video surveillance as part of a search to be lawful. “Use” is defined in the Bill to include a number of things “(without limitation)” including “positioning”. It therefore appears that the courts are being prohibited from considering the lawfulness of cameras based on how they were positioned.
It is paramount that the positioning of the cameras remains something that the courts can consider in each case. A camera that is lawful in a P-lab should not necessarily be lawful in the lab’s shower. A camera that is lawful at the front desk of a brothel should not necessarily be lawful in the bedrooms. A camera that is lawful at the front gate of a high school should not necessarily be lawful in the changing rooms.
The Bill should not cover warrantless searches of private land
The Police have the power to undertake searches of private land without a warrant in certain circumstances. For example under s 18(2) of the Misuse of Drugs Act the police can enter and search premises without a warrant where the police have reasonable grounds to believe that illegal substances are on the premises in breach of the Act.
If warrantless searches of private land are covered, then if the police believe on reasonable grounds that you have so much as a joint of marijuana in your house then it will be deemed lawful for them to come into your house and install hidden video cameras. This is too broad a power.
Topics: General | 230 Comments »
Video camera surveillance and the Urewera defendants
September 23, 2011
I’ve been spending spare moments in the last few days trying to get my head around the Supreme Court’s decision (available here; it’s R v Hamed).
I’m not sure I really understand it. But then, that puts me in good company: Attorney-General Chris Finlayson and the Police Association’s Greg O’Connor don’t seem to understand it either.
What I’m really interested in is whether the decision changes the law in such an unexpected and adverse way that the police need a quick-fix law to ensure that they can operate effectively (and then, whether the quick-fix law National is proposing (a) solves the problem and (b) doesn’t grant police too wide a licence to invade our privacy).
I don’t know the answer to those questions. But here’s the thing I keep coming back to. Here’s the power the police are after. It’s the power National wants to give them. It’s the power they thought they had under the old law. It’s the power they’ve apparently been using for years. It’s the power they think the Supreme Court has stripped them of. It’s the power they say they are using in 50 current operations and relying on in 40 prosecutions. It’s a power, as Greg O’Connor keeps saying, for police to do what anybody else could do, since everybody is allowed to do what isn’t specifically prohibited by law.
Here’s that power: it’s the power to go on to someone’s land without telling them and instal a hidden camera, pursuant to a warrant that doesn’t actually authorise the camera to be installed. That’s because our search warrant laws, as the Law Commission has pointed out, let police apply to be given permission to search for things, but not to instal cameras.
Why did police think they could do something that invasive without specific provision in the warrant? Because the warrant allowed them to be on the land. It meant they weren’t trespassers. And once on the land, they could do what the warrant allowed them to do (search and seize particular evidence) and anything else reasonably incidental (look around, take photos, and, um, install video cameras). Back to O’Connor: the police can do anything that anyone else is allowed to do. And the law doesn’t say anyone needs a warrant to install cameras. Is this starting to sound like he’s on another planet? It does to me.
A couple of Supreme Court judges seemed astonished that the police didn’t even take legal advice on this issue before dealing with the Urewera warrants. I’m guessing that’s because it had simply become standard practice. We should note that the police did disclose to the warrant-issuer that they planned to put up cameras. That’s admirable. But it really makes you wonder why more questions weren’t asked about their power to do so.
O’Connor is fond of citing the cases of R v Fraser and R v Gardiner, as if those cases authorised installation of hidden cameras on someone’s private land during the execution of a warrant, and as if the Supreme Court has – shockingly – overturned them. But those cases didn’t say that. Both involved video surveillance of land from outside, with the consent of a neighbour. It makes a bit more sense, in that context, to say that the police don’t need special authorisation to do what other people can do. (The courts in those cases left open the question of whether that sort of behaviour amounted to a search, saying that if it was, it wasn’t an unreasonable one and therefore didn’t breach the Bill of Rights).
That strikes me as thin gruel for a proposition that I think many people would find surprising: that the police had power to instal hidden cameras in our houses, just because they may have had the right to be there for some other purpose.
National’s fix would retrospectively validate this, and more. It apparently renders all uses of hidden cameras associated with a search – very broadly defined, and not limited to searches with warrants – lawful. The fix also says such use of hidden cameras (including their positioning – in your bedroom, for example), would not by itself be grounds to argue that any search was unreasonable under the Bill of Rights Act.
Like pretty much everyone else, I’m not opposed to the police being given the powers they need to catch the bad guys. Like pretty much everyone else (I hope), I’m a bit suspicious of wide and invasive powers and want to be sure that they’re properly justified and adequately supervised. I’m not reassured here.
Like I say, I’m still coming to grips with the decision. Perhaps I’m missing something.
For what it’s worth, I think the decision to read is Blanchard J’s. Three other judges for the most part accept his analysis on the issues I’m talking about. I think some of the discussion of this case has got sidetracked by a focus on the Chief Justice’s decision, which is first, but which hasn’t carried the court.
PS. I recommend that you read Dean Knight (and here) and Andrew Geddis (and here and here) rather than listening to Greg O’Connor and Chris Finlayson.
Topics: NZ Bill of Rights Act | 47 Comments »
Did the Crown breach the suppression order in the Ureweras case?
September 7, 2011
The Crown tells us that as a result of the Supreme Court’s recent decision in the Urewera case,
there is no longer sufficient evidence to justify the continuation of the proceedings against a number of those charged solely under the Arms Act…
That is, the Crown has revealed that the Supreme Court has ruled some evidence inadmissible. That’s a breach of the suppression order imposed by the Supreme Court. But it’s worse than that. The impression we are left with is that evidence was excluded concerning the remaining four defendants (although there’s still enough admissible evidence against them to continue the prosecution).
In fact, that’s very misleading.
The Supreme Court is yet to rule on whether this case will go a jury. In the light of the dropped prosecutions, we might suppose that the forthcoming trial is likely to be shorter and less complicated, which may dissolve many of the old objections to a jury trial. It can only be assumed that a jury trial is a real possibility now. If there is one, hasn’t the Crown just created a danger that jurors will roll up wrongly thinking that some information suggesting the defendants’ guilt is being kept from them?
Topics: Contempt of Court, Suppression orders | 56 Comments »
A thought
September 5, 2011
It’s worth pausing to reflect that Valerie Morse went to the lengths of burning a flag at an Anzac Day dawn ceremony to shake us out of our complacency and start questioning our involvement in foreign conflicts (the banner she was trying to draw attention to specifically mentioned Afghanistan).
Nicky Hager’s book suggests that we would have done well to take heed. Instead, her reward was a prosecution for offensive behaviour.
Topics: General | 65 Comments »
Getting it right
September 5, 2011
Nicky Hager’s surname is pronounced HAR-ger. You’d think people would know that by now.
Topics: General | 2 Comments »
Other People’s Wars
September 1, 2011
As a few of you know, I vetted Nicky Hager’s new book, Other People’s Wars. It’s on sale now. I recommend it.
Just as I found his last book, The Hollow Men, to be an education in the dark arts of political marketing, for me this one is an education our sickening suck-up to the United States, the chilling technology of killing, and the unsettling role of PR (externally and internally) in modern NZ warfare.
The NZ Herald’s John Armstrong has written a good account of the book at short notice. I hope others bear in mind his point that:
While it is expected that attempts will be made to discredit the book and its author, the veracity of the findings of Hager’s previous investigations, which include a landmark expose of New Zealand’s security and intelligence organisations in the 1990s, has never come under serious challenge.
Armstrong leads with Hager’s suggestion that NZ’s Bamiyan camp is home to intelligence officers, probably from the CIA. It’s a significant point, but for me, not the most important thing in the book. But it’s been fascinating to see the rest of the media fall into line. Stuff even changed its initial headline to pick up on the CIA claim. Radio NZ has followed suit.
At Hager’s press conference this afternoon, TVNZ’s Guyon Espiner suggested that it wasn’t surprising to find intelligence officers in a warzone, saying that when he was there, people were open about it. To which Keith Ng has responded:
It’s jawdropping that a reporter like Espiner could have been there, known about this, and just flat out considered it not worth reporting.
I gather that Hager will be interviewed by Kim Hill on Saturday morning. Should be well worth a listen.
You can check out Hager’s own description of the book on Scoop.
[Update. Just heard John Key discussing the book on Checkpoint. He said (a) there was no evidence for Hager’s claims; and (b) he hadn’t read the book. I hope other people find that as breathtaking as I do, given that the book contains more than 1300 footnotes, most of them referring to documentary sources.]
[Second update: The line on the CIA seems to be, simultaneously, that (a) they were not there, and (b) if they were, it was obvious to everyone.
I wonder if it’s too much trouble to ask the media to put a few questions from the book:
— Is it true that our personnel were under the control of the British and American forces?
— Did we have signals officers helping to locate targets for bombing? Did one of them fix targets in Pakistan?
— Did our own review find that our reconstruction efforts were “not sustainable in any way” and we were “not an effective aid provider” (and if so, then why were these conclusions redacted from the version of the review officially released to Hager?) How is this consistent with what we’ve been told?
— Didn’t Bruce Ferguson just admit on Morning Report this morning that, in response to concerns that we were taking a role in escorting US ships for the Iraq invasion, that he fixed things up? Wasn’t this an admission that we’d crossed the line and disobeyed government instructions? How did he get away with treating that as a denial?
— Does the government deny that any of the documents cited in the book exist (and if so which)? Does it say that material from those documents has been misquoted (and if so, where)?
— Given that the military and government have in recent times (I’m thinking of Jon Stephenson’s work) denied things and have subsequently been forced to admit that they happened, why should be believe their blanket assurances now?
— Who is “supporting the troops”? The military brass defending their conduct, or a journalist who’s interviewed many of them and is expressing their concerns?
— The big underlying issue: to what extent was there in fact a desire within the top levels of our defence and foreign affairs staff to return to closer relations with the United States, and a frustration with government and public attitudes that NZ should be more independent? How did that frustration manifest itself?]
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