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 | Comments Off on Video camera surveillance and the Urewera defendants
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 | Comments Off on Did the Crown breach the suppression order in the Ureweras case?
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 | Comments Off on A thought
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 | Comments Off on Getting it right
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?]
Topics: General | Comments Off on Other People’s Wars
Taking rights seriously
August 4, 2011
So I am sitting in the public gallery of courtroom 9 in the Wellington District Court building, watching a Human Rights Review Tribunal case. Beside me is Dr Rayner Thwaites, who teaches at
This is a scene that is often repeated in the Wellington District Court. No doubt judges and tribunal chairs have the right to control what goes on in their courtrooms, but I think this blanket practice is unlawful. I think it’s inconsistent with the principle of open justice, which must surely include the right of anyone to take notes. I also think it breaches the NZ Bill of Rights Act, which protects the right to seek, receive and impart information and opinions of any kind and in any form. That’s subject to demonstrably justified limitations, but I can’t see how that might apply here. What harm can be done by taking notes that is not also being done by journalists who are scribbling away on the bench in front? Yes, permission could be sought, but who knows that? Most people just put down their pen, looking bemused.
No big deal, you think? I think it is. I think it demonstrates how insensitive our legal system can be to free speech issues. Let me give you some more examples. Let’s say I want to advertise my house for rent during the Rugby World Cup. Let’s say my advertisement says: “Want to stay in Wellington during the Rugby World Cup? Rent my house for $1000 a week.” In short order, I am likely to get an official cease and desist letter. My offence? Using the magic words “Rugby World Cup” without permission. But no-one would think I was connected with the RWC organisation just by reading my ad, you think? I agree. But the Major Events Management Act may not. It presumes that ads using key phrases, including “Rugby World Cup”, are unlawfully associating themselves with the RWC administration. It’s not clear how easily that presumption can be rebutted. There’s a potential fine of $150,000. Is this provision seriously a demonstrably justified restriction on my rights to free speech?
And what about the Department of Corrections’ recent decision to ban the Truth Weekender from some inmates at Auckland Prison? Under section 43(2) of the Corrections Act 2004, they can refuse permission for possession of items that “may interfere with the effective management of the prison”. Corrections argues that the paper contains “sensationalised and often inaccurate” news stories about the prison and is “detrimental to rehabilitation and reduced reoffending” in that it “normalises and supports criminal beliefs and attitudes”. I don’t read the Truth, but it is difficult to believe that this ban is consistent with the Bill of Rights. Properly understood, free speech guarantees are particularly suspicious of attempts to ban information based on supposedly pernicious viewpoints or because it’s perceived to be inaccurate.
Want more? The Court of Appeal was recently called on to review the highest defamation award in New Zealand’s history: $900,000. It was against businessman Vince Siemer, who has waged a campaign against the business practices of Michael Stiassny that has involved a website, a billboard drawing attention to the website, pamphlets, complaints to professional organisations and repeated flouting of court orders that he desist. It’s not clear how many people have accessed the website. Is this really the worst defamation in the history of the British Commonwealth, as the Court of Appeal described it? Is $900,000 really a proportionate penalty? In making a broad assessment of the courts’ powers to award damages in defamation cases, surely a mention of the Bill of Rights would have been in order.
Topics: NZ Bill of Rights Act | Comments Off on Taking rights seriously
Courts hold the line against name suppression!
July 7, 2011
The Supreme Court has just denied leave to appeal in a name suppression case. David Ingram Rowley and Barrie James Skinner have been charged with dishonest use of a document and perverting the course of justice. The trial is set for February next year. They were granted name suppression in the District Court. This was overturned in the High Court. The Court of Appeal agreed. The Supreme Court agreed. The Supreme Court even refused to allow them to make a new application on fresh grounds. Whale Oil, where are you?
Topics: Name suppression | Comments Off on Courts hold the line against name suppression!
Siemer in contempt
July 7, 2011
Vince Siemer has been found in contempt of Court again for, well, for being in contempt of Court.
In brazen defiance of a suppression order plastered all over the front of Winkelman J’s decision denying the Urewera defendants a jury trial, Vince posted the judgment on his website. The suppression order said:
THIS JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THIS COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.
Adding insult to injury, Siemer tooled around with the last sentence in that order so that it read (on his website, Kiwisfirst):
PUBLICATION IN LAW REPORT OR kiwisfirST IS PERMITTED
Adding further insult, he still hasn’t taken it down. Looks like another jail stretch for Vince, though thanks to the way the law of contempt has been reshaped during one of Vince’s earlier trips to the Supreme Court, it can’t be longer than 3 months.
What may be most surprising is that a breach of a court order this flagrant needs to be the subject of a lengthy court hearing and a 71-paragraph ruling. Partly it’s because he ran some dopey arguments. It wasn’t published on the internet, he contended. The internet is the wires connecting the actual computers where things are published. Anyway, his website is a “Law Report”. And the order was on the front of the decision so it doesn’t count. There was more in this vein, readily dispatched by the full bench of the High Court (Simon France and Mackenzie JJ).
Much more interesting was his argument that judges have no inherent power to issue blanket suppression orders like this. It’s an argument that has the backing of the Privy Council in Independent Publishing Co v Attorney-General of Trinidad and Tobago [2005] 1 AC 190. It also seems consistent with section 138 of the Criminal Justice Act 1985 (take a look at subsection (5):
138 Power to clear court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a) An order forbidding publication of any report or account of the whole or any part of –
(i) The evidence adduced; or
(ii) The submissions made:
(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—
(a) May be made for a limited period or permanently; and
(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and
(c) If it is made permanently, may be reviewed by the court at any time.
(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
Read literally, subsection (5) seems to cull back courts’ rights to suppress anything except evidence and submissions. And yet they routinely suppress whole judgments. There’s a pretty decent argument that this clause does away with any inherent powers judges might have to do this.
Well, there used to be. But the full court has held that judges do have this residual power. They based this on a narrow reading of subsection (5), a case from 1975, line from a recent Court of Appeal decision, and the fact that the Court of Appeal and Supreme Court have exercised this power themselves, and therefore must believe they have it. As authority goes, that’s rather thin gruel. Of course, the alternative would be that hundreds of suppression orders were unlawful, an unappealing conclusion for the two judges hearing this case, both of whom had probably made many such orders themselves.
Still, as a matter of policy, it seems right that judges should have inherent powers to make any orders necessary to ensure fairness to the parties. The judges emphasised this point.
It’s a fair point, as far as it goes. But it doesn’t seem to go as far as this case. The suppression order we’re talking about, remember, suppressed the reasons for denying 15 Urewera defendants a jury trial. In fact, it even originally suppressed the fact that they’d been denied a jury trial. The Crown itself had argued before Justice Winkelmann that this was far too broad and wasn’t necessary to ensure the defendants got a fair trial. Justice Winkelmann changed her mind a bit and allowed publication of the fact that the defendants had been denied a jury trial, though not of any other part of the judgment. It seems clear from court records that she did so because some defence lawyers asked her to. She never provided any reasons for a conclusion that suppression of the entire judgment was necessary to avoid unfairness. It seems hard to imagine that it was.
Did Justices France and McKenzie agree with her? They didn’t go there. They said as long as the order was within her powers and exercised for a proper purpose (fairness of trial), it wasn’t their job to look any further. If anyone wanted to challenge the order, they could do so:
If in disagreement with it, a person may test it in Court or apply for it to be varied.
That, they said, was how Vince should have challenged the order.
So yet again, Vince Siemer is being punished for disobeying an order that may not have been lawful in the first place. I don’t think we should weep for him, though. It may well be that some of the material in the judgment might prejudice the upcoming trial, and Siemer was happy to publish the lot. What’s more, there was a proper way to challenge the order, and Vince didn’t follow it. At the heart of this case is a man who simply decided he didn’t want to follow a court order (or thought he knew better about its legality than the judges) and so breached it.
I suppose we can expect an appeal. I doubt we can expect a different result though.
Topics: Contempt of Court | Comments Off on Siemer in contempt
Is Macsyna King being censored?
June 30, 2011
No doubt you’ve heard that the upcoming Ian Wishart book by Macsyna King is being boycotted by a range of bookstores.
Is this censorship, as some are claiming?
No. Well, not really. Censorship is usually regarded as emanating from the state. There’s no law against stocking this book. There’s no legal penalty for doing so. Your right to freedom of expression under the Bill of Rights limits the government’s powers to restrict information flows. It’s not directly implicated here.
Besides, bookshops decide every day which books to stock and which books not to stock. Is that censorship? Similarly, libraries must choose what to buy. Is that censorship? The media decide which stories to cover. Is that censorship?
Nor is the book actually being stifled. You’ll be able to buy copies through Wishart’s website. In fact, the campaign against it may well, as some have noted, give it more publicity and increase sales.
Still, that’s not to say that there is no free speech issue here. The government isn’t the only actor that can trammel free speech. It might not even be the most significant actor.
And this action does have some similarities to the aspects of censorhip we’d usually regard as concerning. It wants to stifle a book because of the offensiveness of its content (and not just because, say, a bookseller thinks its not likely to sell very well). It seeks to tamp down on King’s viewpoint. It wants to keep out of the public domain information that might be a useful contribution to a range of public debates. It wants the head offices of book chains to order their branches and franchises not to exercise their own choices about what to stock. It threatens coercion (ie a customer boycott). It may well have a very significant practical effect in suppressing the distribution of the book. There’s an uncomfortable element of thought policing: we disapprove of this book so we want to stop you from being able to buy it in the shops. There’s not a clear sense of the harm that this book will do. Nor is there a clear articulation of exactly why it’s being opposed. After all, no-one has yet read it.
For those reasons, the Bill of Rights makes it harder for the government to take actions like this. But as I said, it doesn’t touch private action. Is this grassroots community activism? Or mob rule?
Topics: Censorship, NZ Bill of Rights Act | Comments Off on Is Macsyna King being censored?
Corrections ban on Truth surely unlawful
June 30, 2011
The Department of Corrections’ decision to ban the Truth from Auckland prison looks unlawful. And typical.
The prison says the ban is based on the content of the paper’s coverage, not on the girly ads. It’s possible (but I would have thought very unlikely) that the ads might fall under the department’s ability to confiscate “objectionable” material. Instead, they say the “sensationalised” and “inaccurate” content of the paper – about some prison disputes, it seems – mean that the effective management of the prison would be compromised. Here’s the thinking:
The publication is seen…as objectionable and detrimental to rehabilitation and reducing reoffending. It does not encourage sentence compliance and normalises and supports criminal beliefs and attitudes.
I haven’t read the paper’s coverage. I suppose it is possible that this is true. But it strikes me as a real stretch. I’d be interested in their evidence. The justification advanced seems vague and self-serving.
And I suspect that they have taken no account of the Bill of Rights, which of course binds them. They’re restricting prisoners’ freedom of expression, which includes the right to seek, impart and receive information of any kind and in any form. (No-one’s saying the prison has to supply the inmates with the paper. The argument is that it has no power to confiscate this material when they are given it.)
Here’s the thing that I doubt the prison took into account. I doubt this, because despite the fact that we’ve had the Bill of Rights for more than 20 years and our highest courts have provided increasingly robust guidance about it, officials and even lower courts routinely fail to take it into account. Restricting speech because of the perceived negative effects of its content requires particularly convincing justification. That’s doubly so when authorities decide to restrict it because of its viewpoint, or because they perceive it to be inaccurate.
The department’s power to confiscate material that may effect the management of the prison is required to be interpreted in this light.
If Corrections want to show me the legal advice they received, and it does take these factors seriously, and contains a compelling case that these newpaper articles are affecting the managment of the prison, I’ll happily eat my words. But they don’t have a very good track record. You’ll remember a Corrections decision to confiscate and destroy a Cosmo mag and some hand-drawn pictures was successfully challenged in court. It suffered the same fate when it tried to ban Ahmed Zaoui from being interviewed by TVNZ for illegitimate reasons.
We’ve got a long way to go before free speech rights really bed down in this country.
Topics: Censorship, NZ Bill of Rights Act | Comments Off on Corrections ban on Truth surely unlawful
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