Legalising covert police filming
September 21st, 2011 at 9:00 am by David FarrarAndrea Vance at Stuff reported:
The Government will overrule a decision by New Zealand’s highest court on the Urewera terror raids – using legislation to be rushed through under urgency next week.
Last week the Supreme Court ruled the warrants that police relied on to gain access to Tuhoe land did not cover planting secret cameras.
It meant evidence was improperly obtained and led to charges against 13 of 18 people arrested in the 2007 raids being thrown out.
The judgment recommended Parliament change the law and criticised it for not addressing the problem earlier.
Which I guess is what they are now doing.
First of all can I recommend you read Andrew Geddis for a factual, non-hysterical, explanation of the situation.
I said on radio that this is a classic case of the Government being damned if they do, and damned if they don’t. If they do nothing, then the ability of the Police to detect and prevent crime is seriously impacted. And as I understand it this is not about the Police being able to film whomever they want. They would still need a warrant issued by a Judge or court.
I think few would dispute that the Police should be able to film suspected criminals, if they are able to get a warrant to do so. And as this issue has been before Parliament for a couple of years, I don’t have a problem with a law change before the election, but I do agree with some of what Labour has said:
Labour says:
Labour wants a select committee to scrutinise retrospective legislation to allow secret filming on private property by police.
Leader Phil Goff said his party would only agree to support the law if the Government can make a case for urgency.
National wanted to push the bill through all its stages next week but they needed Labour to agree. Select committee hearings could delay that at least a week.
Parliament has just two sitting weeks left before November’s election.
”The bottom line is it must go through a select committee process,” Goff said. ”It needs to have expert opinion, we need to have the Law Commission, we need to have the Law Society, the other players in this game, able to comment.”
He added: ”We haven’t seen the law yet, we haven’t seen the bill, and I’m not going to support anything I haven’t seen.”
This doesn’t strike me as unreasonable, and achievable. You could do first reading on Tuesday 27 Sep and refer to Law & Order Select Committee (or Justice & Electoral) for hearings on Wednesday and the Select Committee reports back before the following Tuesday 4 October at which stage you do second reading, committee of the whole stage and third reading under urgency.
The other issue is should the law change be retrospective. The Government would argue (and I tend to agree) that the intent of Parliament has always been that the Police should be able to film crime suspects if they get a warrant, and they are just making it explicit. However there is a strong counter-argument that the Police have known the legal authority to do video surveillance was less than clear, and the Police should have stopped getting warrants for video surveillance. However I think that argument relies somewhat on hindsight – it was not inevitable how the Supreme Court would rule – and it was a narrow 3:2 decision.
So this law change is not about giving the Police the ability to film whomever they want. It is about whether warrants they obtain from Judges should be restricted to audio surveillance only, or whether we can join the 20th century (let alone the 21st) and do video surveillance also.
But the details of the law change should be made public as soon as possible, and while it will be tight, I think every effort should be made to allow for expedited select committee hearings.
Related posts:
- Unanimous support for 1st reading of Intimate Covert Filming Law
- A cut and paste gone wrong
- Police Pay
- Rare praise
September 21st, 2011 at 9:08 am
The Herald has an editorial on this to:
This puzzles me. Police should continue to use video surveillance in case the seriousness of the criminal behaviour not yet observed may justify them acting illegally? And if it turns out not to be serious enough they have simply broken the law?
This needs to be tidied up quickly.
Vote:September 21st, 2011 at 9:10 am
‘damned if they do, and damned if they don’t.’
Vote:Or damned now for not doing what should have been done after the Law Commission’s report.
September 21st, 2011 at 9:18 am
How can the police possibly be the arbiter on what is serious offending, and what is not? That’s silly, and places trials and investigations at risk.
My question is this: Why has Simon Power removed provocation as a defence; removed colour of right as a defence for damaging Crown property; changed jury rules based on one case; changed rules regarding the reporting of crimes for child abuse based on one case (all of these done in a knee-jerk fashion) but done nothing about video surveillance in three years when all the signs were there that this was a major issue?
That’s the question that needs asking, and answering.
Vote:September 21st, 2011 at 9:21 am
“If they do nothing, then the ability of the Police to detect and prevent crime is seriously impacted”
Vote:For me this is the crux of the issue. Someone needs to verify if this is in fact true and not simply an hysterical overstatement. The best place for that verification would be at select committee, not a debate, or lack thereof, under urgency.
September 21st, 2011 at 9:27 am
But the details of the law change should be made public as soon as possible, and while it will be tight, I think every effort should be made to allow for expedited select committee hearings.
How feasible is it to include select committee hearings in the process? If that can be managed then a temporary fix will have more legitimacy.
The whole situation is far from ideal but it needs an urgent tidy up, otherwise the police won’t know where any of their investigations stand.
Vote:September 21st, 2011 at 9:28 am
Good to see Labour being sensible about this.
Vote:September 21st, 2011 at 9:31 am
That statement is not correct m@tt, because the evidence is still admissible for serious crimes – the Supreme Court said that.
Isn’t the issue then, what is a serious crime? Maybe the Government should amend the law to allow it for any offence punishable by more than seven years imprisonment (for example). The police shouldn’t be permitted to decide what’s serious, and what’s not. If they are in the middle of an operation for moderate offending, and serious crime is discovered, they can then apply to the court for a warrant.
Vote:September 21st, 2011 at 9:42 am
Good to see the fuckwit Goff being consistent here. As I recall, Labour didn’t claim urgency when they enacted their own retrospective legislation to legitimise their theft of $1m of taxpayer money.
Vote:September 21st, 2011 at 9:44 am
Pete George, isn’t that the way it is? Umm, you’re believer in the wishes of those in power who can pass any legislation at will. I thought that you would love to just go along, as you said, that the society is suppose to be like that. Subjective and not objective. Contradiction? I betcha.
Anyway, here is an article for you from Not PC blog.
Key Government overturning Supreme Court, and principles of good law
I suggest that you read it and also click on links within the article itself to dig further.
Vote:September 21st, 2011 at 9:47 am
Good to see Labour being sensible about this.
Vote:If only. Given Labour’s track record of obstructionism and attacking everything the Govt does whether sensible or not I am doubtful that Labour will be sensible.
I think they are most likely to declare that after careful study they cannot support the urgent law change. They will do this just to land a blow on the Govt.
Actually it will just make Labour look petty and irresponsible and friendly to crims. And it will make a powerful case for giving National an outright majority.
I might be wrong of course, but I think middle NZ will be totally behind the Govt on this.
September 21st, 2011 at 9:51 am
The 3:2 split was on the admissibility of the unlawfully obtained evidence. The Supreme Court was unanimous that the evidence was unlawfully obtained by the Police. And the Police have known for a long time they had no lawful authority to obtain evidence in this manner. Here’s what the Chief Justice had to say:
I’m all for giving the Police power to collect covert video evidence under a warrant, but dead against doing so retrospectively in a manner that legitimises their past deliberately unlawful conduct.
Vote:September 21st, 2011 at 9:52 am
Umm Falafulu Fisi, I suggest you don’t jump to conclusions, you’re either guessing (incorrectly) or making things up about what I believe.
I’ve dug quite a bit already on this topic. Andrew Geddis, FE Smith and Dean Knight have given useful insights, along with a lot of commenters on various blogs. It’s not as simple as some idealistic legal process.
In theory we should have a proper (lengthy) legislative process. In practice something needs to be done much quicker, otherwise the police are left in a ridiculous situation.
Vote:September 21st, 2011 at 9:54 am
@Falafulu Fisi 9:44 am
Jeez, not often I’m singing from the same song sheet as Peter Cresswell.
Vote:September 21st, 2011 at 9:57 am
Note the deafening silence of the Greens who you don’t hear on Radio NZ (it being election time and we want to dangle the right goodies so we can then do what we want as our voters representative)? Usually Keith Locke would be hoping up and down by now.
Vote:September 21st, 2011 at 9:59 am
This is the case of the government and the minister in particular being damned. In 1997 – that’s right 14 years ago – the Court of Appeal said that s198 of the Summary Proceedings Act did not apply to video surveillance (see para 267 of Hamed). The Search and Surveillance Bill is actually in front of Parliament but Power has sat on it preferring to race through legislation to further reduce payments to criminal barristers, remove defences such as provocation and even try and get rid of the right to silence. I suspect that most New Zealander’s would be more interested in the police having the legislative authority to undertake investigations using tools that are commonly available.
Vote:September 21st, 2011 at 9:59 am
Does the retrospective aspect of this legislation allow charges to be relaid on the Urewera suspects?
Vote:September 21st, 2011 at 10:02 am
Toad
Vote:I’m all for giving the Police power to collect covert video evidence under a warrant, but dead against doing so retrospectively in a manner that legitimises their past deliberately unlawful conduct.
…
you say you have seen crown case against the Urewera arrestees and it is weak. Have you seen the video evidence? If so will it come out on DVD (or Blu-ray?)
September 21st, 2011 at 10:04 am
Toad is quite right. There was nothing close about the decision in terms of the evidence being unlawfully obtained. The split was over whether or not the statutory exception under s30 Evidence Act to let in unlawfully obtained evidence was available.
The police are not covered in glory although the Court is careful to note that they did not act in bad faith and were constrained in what investigative actions they could take of a situation that Winkelmann J described as potentially resulting in …at least risk of injury or death (see para 129). The Supreme Court has however delivered a slapping to successive governments but particularly this minister who has, in fairness, had three years to sort the mess out for, I should note, prosecutions going forward.
These raids, of course, occurred under the last government who had 9 years to provide police legsilative authority to obtain a warrant for video surveillance.
Vote:September 21st, 2011 at 10:11 am
“The new law will be applied retrospectively which means no trials are likely to be aborted and offenders would have no ground to appeal their convictions.”
This I do not like at all. Is it unprecedented? If so, it sets a very dangerous precedent.
As I see it, if someone escapes justice through a loophole, then too bad. Close the loophole, but that’s the way it is.
Perhaps all those who received a free tertiary education should be retrospectively charged for that, now that retrospective application of the law has become fashionable.
Vote:September 21st, 2011 at 10:14 am
@toad – have you forgotten to respond to the thread about the appalling actions of your list MP / his spouse based in Hamilton?
http://www.kiwiblog.co.nz/2011/09/a_media_fail.html
Waiting…..
Vote:September 21st, 2011 at 10:14 am
If nothing is done immediately then it won’t be until well into next year at the earliest that it could be made legal for the police to use video surveillance. Is that a situation that we should all just accept, and tell the police to suspend some inquiries in the meantime?
Vote:September 21st, 2011 at 10:16 am
Not to say that the parameters for legal covert surveillance shouldn’t be clearly defined. Duh. But don’t cry because you wrote, or were given sloppy legislation.
The raids sent the message. That is sufficient deterrence. This retrospective crap is sour grapes.
Vote:September 21st, 2011 at 10:17 am
No, it doesn’t need to be applied retrospectively for current cases because it relates to issues of evidence, and the trials are yet to take place. But the retrospectivity would apply to previous cases where this evidence was used, to stop convicted criminals racing off to the courts saying the evidence was illegally gathered and so their conviction is jeapordised.
Also, GPT1 and I are on the same page. Simon Power has some questions to answer on this. He’s sat on his hands on this for three years, and instead pushed through populist reactionary reforms that were not needed, but this reform was.
Vote:September 21st, 2011 at 10:22 am
DPF: “The Government would argue (and I tend to agree) that the intent of Parliament has always been that the Police should be able to film crime suspects if they get a warrant, and they are just making it explicit.”
Ah. No.
Both the Law Commission has noted generally and the SC noted in this case that there is no explicit legislative authority to do covert surveillance under section 198 of Summary Proceedings Act 1957 (virtually original 1957 drafting). It cannot be said that Parliament “intended” this in 1957 – the technology was not available in 1957.
Further, clauses 42AA to 61 of the Search and Surveillance Bill Search and surveillance Bill now currently before Parliament which provide (if enacted) explicit statutory authority for covert surveillance suggest that Parliament has not turned its mind to the issue except in the context of this Bill.
The bigger issue is this: the case found that most of the searches (incidences of covert surveillance) were both unlawful AND unreasonable under section 21 of the NZBORA.
Is National proposing bypassing section 21 of the NZBORA on searches involving covert surveillance. That is the only way one could mostly ensure that evidence gained by this method was not excluded by the Courts.
As to the illegality of the search issue, the evidence can still be admitted by the judge under s30 of the Evidence Act 2005. In this case with most of the incidences they excluded.
So the only question really is providing the Police with explicit legislative authority for current searches that include covert surveillance. As Andew Geddis has suggested there is some select committee scrutinised drafting that can do this.
Past searches involving covert surveillance can be handled by the Courts under s21 of the NZBORA and s 30 of the Evidence Act 2005.
This Government’s inclination on constitutional issues is not hot.
Vote:September 21st, 2011 at 10:46 am
Nick – “No, it doesn’t need to be applied retrospectively for current cases because it relates to issues of evidence, and the trials are yet to take place”
I can see you’re point, that the trial hasn’t taken place, but it still relates to law that was in place at the time. Those were the rules as they stood. Nothing can change that as the past is irrevocable.
I’m more worried by the precedent this sets, rather than the justification for legitimizing the legislation, as retrospective application of the law has the potential to be misused.
Vote:September 21st, 2011 at 10:53 am
Geddes, FE Smith & Co argue in Defense of criminals, their clients, not of Justice. This issue has been decided by one Judicial Vote, an activist Chief Justice, after the High Court, the Appeal Court and two members of the Supreme Court had ruled that the Police had acted within the law. Laws are meant to define what you can’t do,not what you can do, indeed the latter defines a Police State. The majority decision means that while a still photo is still admissible as it has been since the invention of the camera, pressing the recording button and actually recording what is happening is in-admissible presumably because it wasn’t fair play. Well crime is not a game and the 90 cases currently affected will be about 90% serious drug offending or related to such. Often circumstances will arise where evidence of serious offending needs to be recorded before it is possible to obtain judicial authority, try 3am on Christmas day in TeKuiti. There are apparently two high court cases which have upheld the commonsense point of view that what is not declared illegal by statute is presumed to be legal.
Vote:September 21st, 2011 at 11:02 am
I have a real issue with the supreme court decision in this instance. Given the subject matter, and the conduct observed, I would have thought that the police should have been given the benefit of the doubt and that public good would have been a prime consideration in this case. I’m sure that there are many who would disagree with me however, and to those I offer a 2 word rebuttal.
Anders Brevik.
Vote:September 21st, 2011 at 11:07 am
backster – “pressing the recording button and actually recording what is happening is in-admissible presumably because it wasn’t fair play”
Hmm. I wonder if it could be argued that movies are just a sequential juxtaposition of photographs. After all, that is what they intrinsically are.
I smell a loophole closing a loophole.
Vote:September 21st, 2011 at 11:10 am
This issue has been decided by one Judicial Vote, an activist Chief Justice, after the High Court, the Appeal Court and two members of the Supreme Court had ruled that the Police had acted within the law.
Wrong, backster.
All members of the Supreme Court agreed that the police acted illegally.
Two members argued that the charges were serious enough in all cases that the evidence was still admissible, despite being illegally obtained. Two members argued that the charges were not serious enough in all cases to allow the evidence to be admissible.
Vote:The final member argued that the charges were serious enough in *some* cases to allow the evidence for those cases to be admissible despite being gathered in an illegal manner. This final member’s compromise position was adopted; which is why some defendants had charges dismissed against them and some still face prosecution.
September 21st, 2011 at 11:11 am
Backster
Heavens you are confused.
“Laws are meant to define what you can’t do,not what you can do, indeed the latter defines a Police State.”
Actually prior the Supreme Court case the Court of Appeal line of reasoning was (according to the CJ) that the Police can do covert surveillance because it is not explicitly illegal. By anology the Police are like the individual. If her characterisation of the reasoning of the CA is correct – then the CA was rightly overturned.
The whole point of laws providing for explicit statutory authority for state actors is to contrain the use of awesome powers provided to the state. The only non enumerated powers state actors have those purely incidential too the the enumerated ones.
Vote:September 21st, 2011 at 11:15 am
The illegality of the search (and or its unreasonableness under the NZBORA) doesn’t necessarily mean its exluded under S30 of the Evidence Act 2005 – that is a separate weighing exercise.
Vote:September 21st, 2011 at 11:22 am
“I have a real issue with the supreme court decision in this instance. Given the subject matter, and the conduct observed, I would have thought that the police should have been given the benefit of the doubt and that public good would have been a prime consideration in this case. I’m sure that there are many who would disagree with me however, and to those I offer a 2 word rebuttal. Anders Brevik.”
Well said. This was a domestic terrorism issue and they should have been given some leeway.
Legal issues relating to terrorism and national defense should be decided by a special military court made up of qualified Generals.
Vote:September 21st, 2011 at 11:44 am
At 9.08 I posted from the Herald editorial:
Equally, the police can continue to use covert surveillance if the offending under investigation is serious.
They should not be suspending the use of video surveillance in major operations.
I posted similar on Dim-Post and Andrew Geddis has responded:
This means the police should suspend all video surveillance until it is legal for them to do it.
It has to be legalised – so should that be soon, or stop all video surveillance until next year?
Vote:September 21st, 2011 at 11:46 am
Chris Diack – “The whole point of laws providing for explicit statutory authority for state actors is to contrain the use of awesome powers provided to the state.
But the state can change the parameters if they so wish, retrospectively?
“The only non enumerated powers state actors have those purely incidential too the the enumerated ones.”"
I was wondering if you could translate this bit into layspeak for the benefit of us law illiterates?
Vote:September 21st, 2011 at 11:58 am
Pete George – Andrew Geddis has done an excellent post on how Parliament should advance the issue – http://www.pundit.co.nz/content/too-many-problems-why-am-i-here#comment-8926 (based on the premise, which I happen to agree with, that police should be able to get a warrant for video surveillance).
The great concern is retrospective legislation to make that which is unlawful, lawful. There is precedent for it – Labour did it to avoid getting in trouble with the overspending and National passed home invasion laws to make provide for a maximum life sentence for Home Invasion (such sentence to apply immediately regardless of when the act occurred. The Court of Appeal somehow danced on the head of a pin to find that was not parliament’s intent in, for memory, R v Pora . I think the reasoning was that retrospective penalties were so outrageous that Parliament could not have intended it but someone with a better memory might be able to assist.
In terms of the alleged 40 cases before the Courts the Crown will still be able to rely on the exception under s30 to try and get the evidence in and a Judge will decide on the facts of each case but going forward the police probably do need urgent powers as now it is abundantly clear that video surveillance is unlawful (as first noted 14 years ago and now upheld 5-0 in the SC) it is going to be harder for the Crown to convince a Judge to let that (now deliberately) unlawfully obtained evidence in.
Vote:September 21st, 2011 at 12:06 pm
Lee01 said Well said. This was a domestic terrorism issue and they should have been given some leeway.
The police were given some leeway. The unlawfully obtained evidence has been ruled admissible, by a majority, against the four “main” accused – s30 Evidence Act.
I have little sympathy for these turkeys but the rule of law, like freedom of speech, doesn’t just apply to people we like or respect. These are fundamental rights in a democracy – freedom from unlawful search, right to privacy etc. We are talking about allowing the coercive arms of the state contravene these rights – this is not something that should be undertaken lightly or at the whim of the Police. It isn’t good enough to say “well they were asking for it so let’s not worry” as by that logic there should be a camera in every house, building and office in the country. (As an aside, s30 allows, to a limited extent an “ends justify the means” argument).
Personally I believe that the police should have the legislative authority to apply for a warrant (judicial oversight) to undertake video surveillance on similar grounds to that required for intercept warrants. But the don’t. That is a failure of our elected representatives not the Supreme Court.
Vote:September 21st, 2011 at 12:10 pm
The Police could of and should of obtained a warrant; period. They didn’t. Why?
Vote:September 21st, 2011 at 12:19 pm
If the Police think the situation is important enough to break the law, they should also be standing up and be willing to be prosecuted afterwards.
Vote:September 21st, 2011 at 12:22 pm
KevinH – a warrant was not legally possible – as I understand it the SC said that covert video must be explicitly included in legislation otherwise it could not be included in a warrant.
Thanks GPT, good to see ongoing clarifications and additions to the issue there.
From the sound of the contentiousness of the Search and Surveillance Bill it might be some time before that manages to become law in whatever form it ends up in.
Because the covert video part of that has already had some scrutiny it makes sense to action that on it’s own to tidy up the situation in the meantime as Andrew suggests.
Vote:September 21st, 2011 at 12:25 pm
You seem to have forgotten that in this case, the only people so far to have been found to have broken the law are the police.
Why are you defending law-breakers?
Vote:September 21st, 2011 at 12:25 pm
Perhaps I should have checked Kiwiblog earlier…
Just to be clear, I have no problem with the idea of video surveillance. I have a very big problem with the Government passing legislation to retrospectively justify unlawful and unreasonable behaviour by the Police.
Oh, and that ‘unlawful and unreasonable’ bit is not my own opinion, as GPT and Toad have pointed out that is the opinion of ALL 5 Supreme Court judges, as well as the High Court judge at first instance.
The split, as has been noted, was over admissibility, not unlawfulnes.
Oh, and backster:
“Geddes, FE Smith & Co argue in Defense of criminals, their clients, not of Justice.”
Utter rubbish. We defend people charged with criminal offences by a powerful State organisation. Our job is to defend the person, not the crime. Moreover, our job is to make sure the system stays fair, something that you appear to oppose.
We are the people who guard the guards.
EDIT: Graeme, that is classic.
Further EDIT:
KevinH,
“The Police could of and should of obtained a warrant; period. They didn’t. Why?”
The did. But the warrant did not, and could not, and they knew it did not and could not, authorise them to do what it did. They were relying on the Court to allow their unlawful behaviour to be admitted as evidence anyway, and it backfired on them.
Vote:September 21st, 2011 at 12:30 pm
Kevin H refer to para 47 – “There is in New Zealand no statutory authority which authorises covert filming as a police investigatory technique.”
Edit: The Court also notes, in the same paragraph, that the OC was aware there was no statutory basis for applying for such a warrant which, as I keep saying, falls squarely on Parliament.
Vote:September 21st, 2011 at 12:31 pm
The police may have acted “illegally” according to a technicality, but they were not acting immorally.
Judges are sadly on the crims’ side. Judges descend from lawyers, whose job it is is to find whatever shifty wording can be found in the law to get their client off.
This is the type of thing that got that drink-driving cop off the hook, and is the type of thing that means rapists escape conviction just because the policemen made a mistake in the wording when reading the rights.
The judges seem to be so Asperger’d that they can no longer see the intent of the law, just its words. That’s not justice.
@KevinH
I hate to be the grammar Nazi, but “could have, should have“.
Vote:September 21st, 2011 at 12:34 pm
Given this has been a live issue since, at least 1997, successive justice ministers should be brought to account for allowing a situation where potential criminals are allowed to go free. I would suggest that each justice minister still in Parliament should resign over this debacle which just happens to be Goff, King and Power. Damn!
Vote:September 21st, 2011 at 12:36 pm
The Police could of and should of obtained a warrant; period. They didn’t. Why?
No, they couldn’t have obtained a warrant to set up covert video surveillance on private property. That’s the point. They don’t have that power under the law. The implication is that the police knew that, hence why they didn’t apply for a warrant to do that (which would have been refused). So, they set the cameras up anyway, gambling that whatever they recorded would be evidence of such extreme criminal badness that the court would allow the video evidence despite it being illegally obtained. Which the Supreme Court has done, for some charges, but not for other charges.
The police could and did apply for search warrants to search the area. Which is within their legal powers, but that doesn’t also give them the power to leave video cameras behind on the speculation that there might be some evidence to record of undefined people at some undefined time in the future.
Vote:September 21st, 2011 at 12:45 pm
@GPT1 12:34 pm
I’m confident they will all be gone by April.
Vote:September 21st, 2011 at 12:46 pm
tristanb – nice hyperbole really mature.
How do you believe a law drafted in the 1950s had an intent for covert surveillance? And if it had such intent why did parliament specifically amend the Crimes Act to allow intercept devices in certain cases but not video surveillance?
Or do you just see the rule of law as one of those things that only applies if you think it should?
Vote:September 21st, 2011 at 12:49 pm
“The police were given some leeway. The unlawfully obtained evidence has been ruled admissible, by a majority, against the four “main” accused – s30 Evidence Act.”
Thats not leeway.
“We are talking about allowing the coercive arms of the state contravene these rights – this is not something that should be undertaken lightly or at the whim of the Police.”
I agree. But terrorism is the one area which it should be done. This is not treating it lightly nor doing so on a whim. Police concern about armed nutters doing patra-military training and talking about killing politicians is not a whim.
Vote:September 21st, 2011 at 12:57 pm
tristanb – “The police may have acted “illegally” according to a technicality, but they were not acting immorally.”
I agree, but by not following the procedure, they fucked up.
“Judges are sadly on the crims’ side.”
I don’t agree. They interpret the law as it is written, to the letter. This inevitably plays into the hands of those who wish to wriggle out of it when contested adversarially.
I do agree that the law is a blunt instrument at times, and is in need of sharpening.
Vote:September 21st, 2011 at 12:59 pm
Seems to me that this is somewhat similar to Erin Leas case. Govt. caught out and becoming a bully.
Yeh
Vote:September 21st, 2011 at 1:03 pm
RJL – “So, they set the cameras up anyway, gambling that whatever they recorded would be evidence of such extreme criminal badness that the court would allow the video evidence despite it being illegally obtained. Which the Supreme Court has done, for some charges, but not for other charges.”
Interesting analysis. Perhaps there was more collusion than we will ever know about between the police and the justice department.
Vote:September 21st, 2011 at 1:03 pm
Scott Chris:
Its very simple. Anything the Police do must be authorised in a statutory provision or be a necessary or reasonable incidencial of that statutory power.
Covert filming surveillance itself isn’t authorised by section 198 of the Summary Proceeding Act 1957 and in most cases isn’t a incidence of the warranted powers. One of the judges observes that filming what the Police are actually viewing maybe permissible as an incidence. Section 198 SPA talks about searches for a thing (existing or as some of the judges observe prospective things).
tristanb:
“The police may have acted “illegally” according to a technicality”
No. Wrong. Not a mere technicality. They have no statutory power under section 198 of the Summary Proceedings Act 1957 to do covert filming surveillance. It’s as simple as that. And whats more had they sought legal advice internally from their own lawyers or externally from Crown Law that would have been the advice. The Police chose not to do so thereby putting their case at risk and potentially wasting taxpayer money..
While I am not skilled at reading between the lines of SC judgments I note the judges repeatedly observe that the Police as time went on acted in a way that was consistent with a belief that there was no immediate risk to life or property (except for the first in person surveillance where they retreated as a result of the number of firearm discharges).
Vote:September 21st, 2011 at 2:05 pm
tristanb,
I agree with others on this thread, you are wrong to say that the police acted illegally ‘according to a technicality’. The Police acted illegally, end of story. In fact, the Police knowingly and blatantly acted illegally. They then hoped the Courts would accept their breaking the law and excuse it by admitting the unlawfully gathered evidence anyway. Sadly, and it says a lot about the Court of Appeal, at one level the Courts did allow it.
Vote:Actually, a judge is described as being elevated to the bench, so it would be more correct to say that judges ascend from lawyers…
September 21st, 2011 at 2:10 pm
F E Smith.
I would be interested in knowing your views on the ‘Claim of Right’ defense invoked by the 3 protesters who inflicted damage in the millions of dollars at Waihopai. Their actions were illegal, but these three were exonorated by their belief that their actions were saving lives.
Could the police action be seen in the same light? If not, why not?
Vote:September 21st, 2011 at 2:15 pm
One other thing:
This proposed bill is retrospective. Which means that other defendants who have also been the victim of unlawful police activity who would currently have a chance of using the fact of that unlawful activity to have the unlawfully gained evidence ruled inadmissible by the Courts will have that chance taken away from them.
If that is acceptable for defendants not involved in the Urewera case, why not make it so that the 13 defendants who have been the beneficiaries of this decision are once again faced with the evidence of their alleged misdeeds? Why say it was legal for everyone but them?
Vote:September 21st, 2011 at 2:24 pm
slightlyrighty,
I admire the defence lawyers use of the claim of right defence in the Waihopai trial. That may be because I know one of the lawyers relatively well and it sounded just like something he would do, and would do successfully. Prosecutors tend to understimate this particular lawyer, usually to their detriment. EDIT: that is not just my opinion, by the way, but that of a very experienced High Court Judge, who praised this lawyer very highly to me a few years ago.
Do I approve of the defence? Well, yes, as it was there to be used. Am I surprised that it suceeded? Yes, to put it mildly.
That said, I have not doubt of the sincerity of the beliefs held by those protestors.
Do I have any issue that it worked? Not a jot. Nor do I have any problem with the Government suing the protestors for damages!
But to answer your questions, no, the Police couldn’t use that defence (if still available) as it is a defence for defendants who have broken the law. If the officers involved were charged with trespass, then perhaps we could argue they should have been allowed to use it, but that would be an academic argument because no police officer will ever be disciplined in any way for deliberately deciding to break the law in order to gather this evidence.
Most importantly, even if it were to be available to them, consider the fact that by the Police had taken the decision to deliberately break the law in order to gather evidence, the police knew there was no imminent risk. Therefore they were not actually saving the life of anyone, nor could they have believed that they were doing so. What they were actually doing was allowing the then suspects sufficient rope with which to hang themselves.
So, no, I don’t think they could use the claim of right defence, if it had been available to them.
Vote:September 21st, 2011 at 2:26 pm
F E Smith.
The covert filming of suspects is regarded as illegal, as per the ruling of the supreme court. In what way would a recorded version of the actions prejudice a trial?
It is one thing for a witness to say I observed something happen, but to have that assertion supported by video evidence could only help to achieve certainty. The supreme court has allowed that evidence to be presented in the case of 4 of these persons, so the issue is not about the veracity of the information, rather than the legal status of the evidence.
Like any evidence gathered in any way, it can be challenged in court, but what we have here is a challenge not to the eviednce, but to the methodology of gathering that evidence.
Vote:September 21st, 2011 at 2:37 pm
The government wants to minimise the maori heat they are taking by concentrating on the worst offenders only-let the small fish go and catch the biggies. Similarly to how the police have discretion over speeding offences I’d suppose.
I support these retrospective law changes – the intent of the law is important to me, and as John Key says , some pretty bad people will get away with some serious crimes otherwise.
The cops were not sure whether the evidence would be admissible–it was a grey area from reports. Even the supreme court had a 3:2 split — so, how were the police supposed to know if it would be a 2:3 or 3:2 decision.
Interesting point, I recall hearing maori revolution rumours in high school back in the 80′s. I guess it must be a persistent rumour that pops up periodically. Although, maybe there was a little substance behind it this time.
Vote:September 21st, 2011 at 2:38 pm
F E smith.
I would argue that the police, having been informed that paramilitary type activities were being carried out, by persons known to have a political agenda, probably had more reason to break the law than the Waihopai 3.
Given what I have read in the transcripts of the record of surveillance, the activities in the Ururewas had far more potential to endanger life than the surmised activies of the GCSB. We know that civilians, hunting in the area, had been threatened by armed political activists, and this was discovered without such surveillance. Given the persons involved, I see the police conduct as reasonable. You may disagree, but if the police actions have stopped the actions of a New Zealand version of Anders Brevik, (and having read the transcripts, there were discussions by some parties along that line) then I am willing to forgive the police in this regard.
Vote:September 21st, 2011 at 2:52 pm
slighlyrighty,
no, the police never have more reason to break the law. They are supposed to uphold and adhere to the law. It is completely wrong for the police to ever break the law. Otherwise you have a contest between one set of government sponsdered lawbreakers and another set of private lawbreakers.
The statement that the police knew there was no imminent risk comes from an admission by the police themselves in the case. They said that they did not consider the risk to be imminent. If the risk was imminent then we may have more sympathy for it, but if the police themselves did not consider it thus, then nor should we.
Interesting question. The answer is not at all. But that is not why it was excluded. It was excluded because of the way in which is was gathered, not because of the effect it would have on the trial. The police do not have permission to break the law in their evidence gathering (notwithstanding big bruv thinking they should be able to do so) and therefore any evidence that they gather illegally should prima facie be excluded. There are exceptions provided in the Evidence Act 2006, as people have noted above, but the illegality here was so egregious that a majority of the Court thought that the evidence should not be admitted against 13 of the defendants. The 4 defendants charged with the most serious offences remain and this same evidence can be admitted against them, but only because of the seriousness of the offences.
Despite that majority ruling, it is important to note that all 5 of the judges ruled the police actions to be unlawful and unreasonable, so Wreck1080 you are only partially right.
But are we really going to say that we are satisfied with the police breaking the law at will so long as they think a judge might justify their actions? A ‘oh well, we lost this time but at least we tried’ approach to state sponsered burglary, or kidnapping, or torture, perhaps? I cannot agree with that.
Except it is not the government who did it, it was the Courts. I hope those are two different things.
Vote:September 21st, 2011 at 2:53 pm
” Given the persons involved, I see the police conduct as reasonable. You may disagree …”
I think the point is, all 5 members of the Supreme Court disagree that the Police action was a “reasonable search”. They then differ on what should happen to the evidence, sure … but that doesn’t change the basic finding that the Police broke the law.
If your claim is “the Police should be allowed to break the law whenever they think the end justifies the means” … that’s OK. Just don’t expect to find many people in your camp.
Vote:September 21st, 2011 at 3:02 pm
F E Smith.
The police, by their very nature, are bound by the law to uphold the law. But in the course of carrying out their duties, they do carry out a number of activities outside the law that covers the rest of us.
I am not allowed to carry a tazer, or a loaded firearm in an airport. But a Police Officer can. I am not allowed to have a dog that attacks and bites people. Police can. I am not allowed to detain a person. Police can. I cannot drive over the speed limit. Police can in certain circumstances. I cannot remove a violent spouse from a home. Police can.
Now we would all like everyone to be bound by the law, but the law is there to protect the innocent, not sheild the guilty.
Vote:September 21st, 2011 at 3:05 pm
Thanks GPT1,FeSmith,PeteGeorge and Tristanb for the references, have read them as advised including Andrew Geddis’ s blog.The Police have got themselves in an arkward situation, they can’t use the audio/visual evidence they’ve collected until the revised retrospective law is passed, which is also a conundrum.
Vote:September 21st, 2011 at 3:06 pm
Such as?
Vote:September 21st, 2011 at 3:10 pm
I am not allowed to carry a tazer, or a loaded firearm in an airport. But a Police Officer can…
You clearly have not thought this through.
The police cannot break the law either. However, you are quite right that in certain circumstances the police are enabled to do things that ordinary people cannot. On such occasions, such as carrying weapons in a public place, this isn’t the police breaking the law, it is the police obeying the law that applies to them.
This is totally different to the video surveillance question. There the police decided on their own, without enabling legislation, to do something that would be illegal for ordinary people. As there is no enabling legislation, it is also illegal for the police. This is quite simple.
Vote:September 21st, 2011 at 3:21 pm
oops, missed the second part…
As rjl said, you haven’t thought that one through. None of those things are outside of the law. The Police are perfectly entitled to do those things in certain circumstances under current legislation. So the Police are not breaking the law at all. The law specifically allows them to do so.
This video surveillance was unlawful. The Police knew it was unlawful. It is no different from the Police entering your home without a search warrant and looking for evidence, and you saying that such a practice is acceptable.
Vote:September 21st, 2011 at 3:22 pm
It seems that the Government now has the numbers. As DPF suggested above, there will be a 36-hour Select Committee process before the Bill is reported back.
And guess what; Wednesday will now be a Members’ Day again, so we know what that means…two birds killed with one compromise
http://keepingstock.blogspot.com/2011/09/will-this-satisfy-dissenters.html
Vote:September 21st, 2011 at 3:28 pm
IV2,
so long as this bill is retrospective it remains bad law. I have no problem with video surveillance, just with the retrospectivity of it.
Vote:September 21st, 2011 at 3:35 pm
FES – I would normally rail against retrospective legislation as well. However there is a pretty unique set of circumstances at play here. John Hartevelt summed it up well this morning:
Vote:September 21st, 2011 at 3:37 pm
FES – what’s the chances of enough pressure being applied at Select Committee to address the retrospective element?
Vote:September 21st, 2011 at 3:48 pm
PG,
none at all. Simon Power is immune to pressure or reason, unless it comes from the prosecution arm of government.
EDIT: to be fair, PG, it might, but I doubt it. But if Power has a majority then whatever changes the Committee make will be, I am sure, changed again in the House.
IV2,
Again, I disagree. They did stuff up. But we the people are entitled to be judged by the laws as they stand today, not as they are tomorrow. If defendants are discharged because the Police wilfully broke the law, then so be it. I hold the opinion that it is more honourable for the government to admit that Parliament and successive governments/ministers have screwed up and that the Police have been knowingly acting unlawfully for a number of years, then pass urgent legislation making the necessary change from the date the Bill is signed into law, and not before.
Instead, the government is operating from a bully pulpit, telling the country that it can do what it wants and if its police officers, who are obviously not subject to the same requirement to observe the law that we the public are, want to break the law then they will be looked after when they finally get caught.
While some may think that is hyperbole, this really is that bad.
This is especially true as the Courts still retain the power to admit unlawfully and unreasonably obtained video surveillance if they think the case is serious enough to warrant it. So this isn’t about 40 or so people ‘getting off’, this is about 40 or so alleged criminals having a better, but not guaranteed, chance of ‘getting off’. Nothing has changed in that respect, but it will soon when the government retrospectively legalises the police trespasses.
Vote:September 21st, 2011 at 4:02 pm
Andrew Geddes’ summary is full of legal niceties but it ignores the reality that every one of the defendants in the 90 some cases being brought to trial where video evidence is presented, will contest the admissibility of such evidence and be encouraged to take it all the way to the Supreme Court (on legal aid of course).
Vote:September 21st, 2011 at 4:17 pm
trout,
well, not really correct. Their lawyer, if they have one, will evaluate their options, give their advice and act on the instructions given by the client. Very few, if any, would make it beyond the judges at first instance, let alone the Court of Appeal, because the SC has already given some guidance on the subject and trial judges and the Court of Appeal should be able to apply it without too much effort.
That is why we have these sorts of cases go to the SC, so that the lower courts can take guidance from the decisions of that august body.
And what is wrong with defendants having a grant of legal aid? It means that they are being prosecuted by a fully funded State and have insufficient means to pay for a lawyer themselves. The criteria are on the MoJ website- go and have a look.
Or do you think that the State should require people it prosecutes to represent themselves, all the while paying for lawyers to represent itself, and paying those lawyers more than it used to pay the legal aid lawyers?
Vote:September 21st, 2011 at 4:39 pm
IV2 – “If you stuffed it up the first time, make it right – don’t just walk away.”
I agree, but you can’t apply it retrospectively. Had Clayton Weatherston’s claim of provocation been likely to succeed, how likely would the government have been to retrospectively change the provocation law to prevent him from using it as a defense?
Doesn’t matter what you think of the creep, still isn’t right to move the goalposts to achieve your aim, cause that isn’t in the spirit of the law as it stands.
“move decisively to make the necessary laws that are the will of the people.”
Is it the will of the people to retrospectively apply law? I doubt it. They just don’t know it’s happening.
Vote:September 21st, 2011 at 4:41 pm
Yes, none of those things I have mentioned are outside the law, providing certain circumstances are met. Police are not allowed to carry firearms in all situations, nor are they allowed to speed at will. If I was tazered at random, then the police would be breaking the law, but if I was tazered because I was armed and threatening a policeman, or an innocent citizen, then the police are acting within the law.
We now have the seemingly ludicrous situation that the video evidence gathered can only be used in some of the prosecutions, because the other prosecutions have fallen outside the criteria for that sort of evidence gathering to be allowed under law.
So in the case of 4 of these defendants, the end seems to justify the means, but not in the rest? Why?
Why is it that the evidence gathered is allowed based solely on the seriousness of the offence in question? Is the police conduct to be allowed or disallowed based solely on how naughty the subject of the surveillance is?
Vote:September 21st, 2011 at 4:47 pm
slightlyrighty,
because their charges were so serious that the SC majority allowed them to proceed. Actually, only one judge wanted that situation, 2 judges wanted all of the evidence to be allowed in and 2 wanted all of the evidence to be ruled out for all of the defendants. In this case, the ‘third way’ won.
In answer to your last question: because Parliament said that should be the case-
Section 30, Evidence Act 2006
Translation: Parliament is ok if the Police break the law, but it has to be proportionate to the charges.
I, myself, would prefer to just turf any evidence that has been improperly obtained.
Vote:September 21st, 2011 at 4:49 pm
FES@4.17 The only guidance from the SC that I can see is that the admissibility of evidence is dependent on the seriousness of the crime and what is the benchmark for that? – Gaoltime?. Re legal aid I have no problem with legal aid except where it is exploited by barristers to keep files on the boil, and for defendants to avoid gaoltime. The situation is very messy.
Vote:September 21st, 2011 at 5:20 pm
# Nick K (140) Says:
September 21st, 2011 at 9:18 am
How can the police possibly be the arbiter on what is serious offending, and what is not? That’s silly, and places trials and investigations at risk.
My question is this: Why has Simon Power removed provocation as a defence; removed colour of right as a defence for damaging Crown property; changed jury rules based on one case; changed rules regarding the reporting of crimes for child abuse based on one case (all of these done in a knee-jerk fashion) but done nothing about video surveillance in three years when all the signs were there that this was a major issue?
That’s the question that needs asking, and answering.
————————————–
Because Simon Power is a nitwit whose legal “experience” is as a conveyancing lawyer. He’s the worst politician to affect this country in a long time. He’s well and truly put us on the path towards a police state. But he isn’t as much to blame as the moronic public is to blame which buys into every populist law and order agenda.
Vote:September 21st, 2011 at 5:24 pm
That is quite difficult to do, as we are limited in the number of hours we can claim for a particular case. How many hours of prep you are allocated depends firstly on the guidelines and then secondly on the case officer. If you need more than the guideline hours then you have to justify a furhter grant, and that often isn’t successful.
This idea of us prolonging cases to make more money is just utter crap.
Your gibe about the defendant’s prolonging cases is a bit more accurate, but the idea there is nothing to do with legal aid, and more to do with avoiding a conclusion to the case!
EDIT: With regards your first question, you have to go back to the legislation for the guidance.
Vote:September 21st, 2011 at 5:30 pm
Weihana – “Because Simon Power is a nitwit…. He’s the worst politician…… on the path towards a police state…. moronic public is to blame.”
Get off the fence Weihana! Say what you mean!!
Vote:September 21st, 2011 at 6:22 pm
Part of the reason the public are often dissatisfied with the results of trials is the disconnect between the law and natural justice.
The law is many narrow and detailed lines about certain bad things. This is to prevent people doing such bad things. The police have to operate within these narrow lines, and if they make a mistake then the criminal does not get punished.
That’s not justice. Justice would mean that when some nasty bastard does a criminal thing, our society gets some sort of protection from and retribution on said bastard. If someone’s bad, society does not want them getting off the hook because of some policeman’s mistake (which happens as they’re just human).
Well, what happened on the videos happened. It wasn’t Photoshopped or doctored. If it’s illegal to film, then prosecute the police separately. It’s like refusing to take evidence from the shoplifter who gets bashed nearly to death by the shop owner because he had a chocolate bar in his jacket pocket.
If anything, it shows the CoA has some common sense.
I was thinking about the various depths of Hell. But I stand corrected.
Vote:(Sorry, lawyer jokes are low even for me.)
September 21st, 2011 at 6:41 pm
A valid argument, but one that isn’t going to get any traction at all with either the politicians, the prosecutors or the police. So you are then left asking what else might used to ensure the authorities stay on the straight and narrow, which gets us straight back to this type of situation.
No, it is the other way around. I would go further, but I probably shouldn’t. I will let you read between the lines. Just let me point out that the CA said the first Bain trial was fine, whereas the Privy Council called it a miscarriage of justice. I can tell you know, regardless of whether Bain is guilty or innocent, the PC was correct.
Yep, but you have to understand that the resources available to the Police are huge and there is generally a way for the cops to get the evidence they need legitimately.
Vote:September 21st, 2011 at 6:48 pm
I am know a couple of the individuals thats started this operation, unfortunately one of them is a total idiot and this was doomed from the kick off as he has never done anything correctly basically because he does not know how. By the time any talent became involved in the operation the whole thing was flawed and grew into a monster that the local constabulary couldn’t imagine.
There is currently ample legislation that allows the police to gather information electronically. These are called interception warrants and have been used by the police for many years, very successfully. High Court Judges grant them and there are only a handful of NZ police members with the ability to even complete the application.
I get very grumpy when politicians grandstand over things criminal, bringing new laws in answer to public outcry. there is ample legislation on our books. the only changes that will occurr will be necessitated by socail media and international crime by computers etc . This is how we develope case law, judgements cause change not politicians.
And I know much of what was alleged sounded bad but seriously the people charged were like some of the cops that started the whole thing, they could’nt find their arse with both hands
Vote:September 21st, 2011 at 6:49 pm
Just a question out of curiosity – will the film in question ever become public? If it was obtained illegally, will it be suppressed permanently?
Vote:September 21st, 2011 at 9:45 pm
DPF:
You might want to reflect on the claim about uncertainty of the previous position. That claim might have some basis for non-trespassory surveillance. But, for trespassory surveillance like in the Urewera case – which by definition involves breaching the common law, the police clearly can’t rely on the claim that just because surveillance wasn’t prohibited, it was lawful for them to do it:
http://www.laws179.co.nz/2011/09/covert-surveillance-if-it-aint-unlawful.html
[DPF: Ta. I accept your point. I will try and remember to clarify in my next post on it]
Vote:September 21st, 2011 at 10:09 pm
Pauleastbay,
good comment. I generally think that if there is a complex operation that the Police do well to bring in the local Crown Solicitor to help draft their search/intercept warrant affidavits. At least that ensures they have a chance of being correct when if/when they are tested in court. Would you mind giving me your opinion on that, having been on the other side to me?
deanknight, seconded.
Vote:September 21st, 2011 at 10:25 pm
tristanb (566) Says:
September 21st, 2011 at 6:22 pm
“The police have to operate within these narrow lines, and if they make a mistake then the criminal does not get punished.”
—————————–
This isn’t true. Refer section 30 of the Evidence Act:
http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393610.html#DLM393610
Subsection 2(b) states:
“if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.”
Hence it is clear that when the police break the rules it doesn’t mean the “criminal” does not get punished. Improperly obtained evidence can still be used if excluding the improperly obtained evidence is not proportionate to the impropriety.
But the problem is what kind of effect does this have on the freedoms of everyone especially given that subsection 3(d) states that the judge may have regard to the seriousness of the charge. You state:
“That’s not justice. Justice would mean that when some nasty bastard does a criminal thing, our society gets some sort of protection from and retribution on said bastard. If someone’s bad, society does not want them getting off the hook because of some policeman’s mistake (which happens as they’re just human).”
But you fail to account for the fact that the authorities can also do bad things and that they can be just as much a threat to our freedoms as a common criminal.
Vote:September 22nd, 2011 at 1:25 am
FE Smith
Two different things there. A normal search warrant- any police member should be able to complete the application within the parameters of Acts required. It used to be fairly easy to obtain a search warrant but requirements on applications toughened up up by the time I left the police (2004)
Interception warrants are a whole different thing. I don’t think there is any need for the Crown to be involved. The people that complete the applications are very experienced at it and it is quite common if the application isn’t up to scratch to have the Judge send them away to remedy / clarify points etc . So if the warrant is granted it has already had serious perusal by a High Court Judge. A electronic operation is not something thats ramped up over smoko, there is usually months if not years of pre-op work done prior to it going live.
I cannot remember any job I worked on where a interception warrant was involved that there were problems regarding warrant validity when it came to Court and I worked on every electronic operation in Auckland between 1994 – 1998. I was only ever involved in evidence gathering during these operations .That stands testimony to the professionalisim involved and that the process for something as serious as electronic listening is robust .
As I said above this Eastern Bay operation will have been flawed from the start because there will have been a “she’ll be right” attitude over things at the out set and then it grew into this monster and I garauntee that when work started on the job it was not envisaged that it would get as public as it has .
Vote:September 22nd, 2011 at 5:43 am
Isn’t covert video surveillance explicitly authorized under the Land Transport Act?
Why don’t the Police argue they believe vehicle offenses were taking place: no current WoF/CoF, no current Vehicle licence, speeding, not indicating, sustained loss of traction, cruising, illegal vehicle modifications, over-loading, careless driving, road user charges not current, log books not maintained, chain of possession not completed, excessive hours, etc there’s a ton of static and moving violations – bingo they’re done. And the best part the LTA-1998 applies to private property without the owners consent.
Vote:September 22nd, 2011 at 7:11 am
It seems like a resolution to this is being sought unusually openly. Maybe running to an election is a good time to promote more open consultative government.
There’s copies of documentation being sent to all parties, Law Society, Law Commission, Bar Association and Criminal Bar Association – and to Andrew Geddis with assurances Finlayson will speak directly to him about his suggestions.
Red Alert has copies of the documentation.
http://blog.labour.org.nz/wp-content/uploads/2011/09/Draft-Bill.pdf
http://blog.labour.org.nz/index.php/2011/09/21/surveillance-bill-letter-on-public-record
Vote:September 22nd, 2011 at 10:19 am
Isn’t covert video surveillance explicitly authorized under the Land Transport Act?
The police cannot tresspass on private property to set up a speed camera. Speed cameras are set up on public property and monitor activity in public spaces (i.e. the road).
Why don’t the Police argue they believe vehicle offenses were taking place…
Because it was in the middle of a forest on private property. This does not even pass the laugh test.
Even if it was plausible, the police cannot just assert a claim like this, they need to show that they had good cause for believing this. They can’t just make stuff up.
Vote:September 22nd, 2011 at 10:51 am
Cheers for the thoughts, Pauleastbay.
You make a good point the the intercept warrant being thoroughly scrutinised by a High Court judge, but I can tell you that getting a regular search warrant is still pretty easy, at least in my stomping ground. You can imagine my shock a couple of years ago to watch a deputy registrar sign a search warrant application whilst chatting to the officer applying for it- didn’t even bother to read either the affidavit or the warrant!
Sadly, and going on anecdotal evidence from other colleagues, that isn’t that unusual.
Vote: