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September 9, 2011 11:00am by David Farrar

Trotter on Urerewa 17

A very insightful post by Chris Trotter on what went wrong in the Urewera case.

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Comment29

NZ Politics
Chris Trotter
Urerewas

Comments (29)

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jaba

what where these people doing .. they don’t seem to want to get into too much detail BUT will milk this for as long as possible backed by the Greens.
OJ Simpson was innocent aye
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September 9, 2011 11:09am
Scott Chris

Perhaps the problem with the legislation was making it flexible enough to cover peculiar instances such as “operation eight” without being flexible enough to affect the rights of non-terrorist citizens.

Perhaps Chris Trotter could enlighten us with his ideas for creating anti-terrorist legislation which would clearly define what constitutes terrorism, and what powers are accorded the authorities in dealing with such instances, and what sanctions those deemed guilty of participating in such activities should face.

My observation of his well compiled and detailed article, is that he places a little too much emphasis on the process of law, and too little on its meaning. (as lawyers are wont to do)

In the end, it was a discretionary call made by the authorities which was preemptive and correct IMO, regardless of what the legislation stated, but I agree there needs to be a better measure of their accountability.
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September 9, 2011 11:52am
backster

Just as well the Police didn’t uncover evidence of murder, rape, or bank robbery that would have been ruled inadmissible as well.
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September 9, 2011 11:52am
Brian Smaller

I imagine that next time the Police will wait until terrorists in training actually commit some viokent act before pouncing on them. Then the outcry will be “why didn’t the Police act earlier”.
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September 9, 2011 11:56am
F E Smith

Hmmm, and had they ignored the Terrorism Suppression Act and just gone with the known quantities that are the Crimes Act and the Arms Act then there wouldn’t have been such huge losses by the prosecution in Court.

Don’t forget that, notwithstanding Backsters cheerleading for the cops, the evidence is only being ruled inadmissible because of Crown Law and Police screw-ups. The Courts are not trying to find ways to help the accused, they are simply looking at the facts and applying the law as it has been written by Parliament.

EDIT: Brian and Scott, I think you will find it is not when the Police acted, but how and under what laws they gathered the evidence, that is the issue. There is nothing wrong with the Police acting pre-emptively if they can point to crimes already committed. In fact, they should act in that way if it prevents greater crimes.

FURTHER EDIT: Jaba, isn’t it ‘eh’, not ‘aye’? Just I see that a lot these days and I am not sure it is correct
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September 9, 2011 12:20pm
kowtow

I’m prepared to wait for the trial of the remaining accussed. The truth will out then,or is that suppressed too?

Trotsky makes the point that NZ is a democracy with the rule of law……hmmmm
With all these secrecy orders you’d wonder. Justice is meant to be open,we don’t have that.
Also we lost the Privy Council thanks to Labour,that was very undemocratic,did the electorate have a say on that,like so many other important decisions in this counrty,made in Cabinet.

And even the decision not to prosecute the U 13 was a legal opinion. They could still have gone to court.
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September 9, 2011 12:22pm
F E Smith

“And even the decision not to prosecute the U 13 was a legal opinion. They could still have gone to court.”

Not really. If the Crown Solicitor that has responsibility for charging in that area (in this case Simon Moore SC) is of the opinion (and it was his own opinion) that it is not appropriate to bring charges for one reason or another, then it would be highly unethical of him to then bring those charges. It would also open the Crown up to that rarity of things, a costs order if they lost.
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September 9, 2011 12:26pm
ross

Trotter says:

“From what the Prosecution has already placed on the public record, it is relatively straightforward to deduce that the Supreme Court has denied the Crown the use of this evidence, thereby making a successful prosecution of those individuals charged with arms offences alone highly unlikely.”

That’s not strictly correct. Crown Solicitor Simon Moore said it wasn’t in the public interest to proceed with respect to various accused. Moore didn’t say there was a lack of evidence or that conviction was unlikely.
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September 9, 2011 12:44pm
Scott Chris

FE Smith – “but how and under what laws they gathered the evidence, that is the issue”

Perhaps they knew they weren’t sufficiently empowered to act but did so for the greater good, hence Trotter’s assertion that the legislation was inadequate. (ie they acted outside the law as it was written)

Of course, the defense were morally obliged to interpret the law as it was written. Its a tough job. I don’t envy you.
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September 9, 2011 12:58pm
hj

The evidence isn’t admissible because it was obtained under the terrorism suppression act, not because there was nothing to see so those defendants on whom that evidence pinned get to walk. Hopefully we get to see the video evidence after all we get to look at Big-Foot and decide for ourselves. They wont mind if we see the video evidence as they weren’t doing anything and will want to clear their names, wont they?
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September 9, 2011 2:01pm
kowtow

Given the publiciy surrounding this case one could argue it was in the public interest to persue the charges against the U13.
Costs are not automatically awarded either.
As I said ,lets’ see the evidence against the remaining defendants.
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September 9, 2011 2:06pm
Longknives

Brian Smaller- Alas, It appears that this is the only way many NZers (Mainstream Media included) would wake up and realise that the world is a violent and dangerous place and this isn’t a bloody game.
Watching John Campbell (supposedly a respected journalist) positively fawning and salivating over Iti and his Motley mob a few years ago made my stomach churn..Regardless of the results in Court I commend the efforts of the Police and the Crown in trying to keep NZ safe from these lunatics.
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September 9, 2011 2:48pm
F E Smith

Scott,

“Perhaps they knew they weren’t sufficiently empowered to act but did so for the greater good, hence Trotter’s assertion that the legislation was inadequate. (ie they acted outside the law as it was written)”

So are you condoning the police acting illegally when they think it is in the ‘greater good’? If so, what is the point of requiring the Police to act within the law at all?

But, regardless, I disagree. They were sufficiently empowered to act under the Arms Act, if not the Crimes Act. However, acting on incorrect legal advice does absolve the Police somewhat, although not completely.
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September 9, 2011 3:26pm
F E Smith

Kowtow, if the Crown doesn’t think they have a better than even chance of succeeding with a prosecution then it is unethical of them to bring it. The Police/Crown do not have the right to charge people on the off chance that they might win. The test is

1. The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and

2. Prosecution is required in the public interest – the Public Interest Test.

At least some of that prosecutions failed on that first test. If the Court was to find out that was the case but a prosecution had been taken regardless, which would amount to an abuse of process by the Crown, then costs would be almost certain.

EDIT: You can find the guidelines here.

FURTHER EDIT: Scott, the judges were also LEGALLY required to interpret the law as written, same as the Defence, same as Crown Law, same as the Police.
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September 9, 2011 3:32pm
kowtow

The Crown solicitors statement does not say there was insufficient evidence, it talks of practicalities.

It also implies the 13 had had their punishment and so it would be OK to drop the matter,nudge nudge wink wink.Yes there would bea delay and as we know justice delayed is justice denied. But then someone else pointed out the delays were largely on the defence side.

The trial of the remaining 4 will be interesting,if the public are privy to it.
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September 9, 2011 3:50pm
Scott Chris

FE Smith – “They were sufficiently empowered to act under the Arms Act”

Oh I see. So basically they stuffed on the basis of poor legal advice. Fair enough.

I was speculating that perhaps a situation had arisen which required the police/SIS to make a clear political statement, and damn the legal consequences.

With regard to acting outside the law, sometimes it may be necessary for a government to make that decision for the good of the country – within reason.
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September 9, 2011 4:00pm
F E Smith

Kowtow,
I said

At least some of that prosecutions failed on that first test

Which you seem to think is wrong. But this is from the ODT:

Mr Moore said the judgment of the Supreme Court is subject to
suppression orders and cannot be reported. But as a result of
the Supreme Court decision, the Crown no longer believes
there is sufficient evidence to justify the Arms Act charges.

Can you tell me what that italicised bit means, please?

Scott,

So basically they stuffed on the basis of poor legal advice. Fair enough.

Yep.

I was speculating that perhaps a situation had arisen which required the
police/SIS to make a clear political statement, and damn the legal
consequences.
With regard to acting outside the law, sometimes it may be necessary for
a government to make that decision for the good of the country – within
reason.

Eh? Are you serious? You are saying that the Goverment should be free to act outide the law if it feels that it is necessary? If that was the case then the concept of the Rule of Law is a joke. Why not just say that you are happy to live in a police state? After all, they are the ones you are trusting to decide whether and when they must adhere to the law.
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September 9, 2011 4:08pm
Lee01

“You are saying that the Goverment should be free to act outide the law if it feels that it is necessary?”

I’m inclined to agree with Scott. There are times when it may be necessary. Sometimes governments have to do dark things to keep us safe. Does anyone seriously believe that counter-terrorism special forces are always scrupulous about the rule of law? Does anyone outside the whacko Greens think they should? Of course these times should be few and far between, and related exclsuively to terrorism and national security.
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September 9, 2011 4:13pm
F E Smith

Seriously, Lee?

I struggle with the idea that anybody would think it is acceptable for the Government, whether through the Police or any other agency, to break the law at will.

That especially applies to the Police, who are supposed to police by consent.

Of course these times should be few and far between, and related exclsuively to terrorism and national security.

And what if the Government then decides that it also needs those powers to combat organised crime? And then to prevent hate crimes? And then… and then…

When does it stop? Once you give the government the right to break the law at will they will extend it as far as they can. Perhaps not in this generation, but the next, and then the next.

So why not just go the whole way now and argue that the Police should not be required to operate under the law? So long as they are fighting crime and are acting in good faith, what have we got to fear?
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September 9, 2011 4:20pm
Lee01

“I struggle with the idea that anybody would think it is acceptable for the Government, whether through the Police or any other agency, to break the law at will.”

I didn’t say they should break it “at will”. I said there may be times when it is necessary and they have very little choice. Sometimes governments, and for that matter people, are faced with decisions that involve having to choose the lesser of evils.

“And what if the Government then decides that it also needs those powers to combat organised crime? And then to prevent hate crimes? And then… and then…”

They already do, but thats really a different issue. I’m talking about extreme situations such as assasinating a terrorist who they know is going to carry out an attack and its not possible to arrest him/them.

“So why not just go the whole way now and argue that the Police should not be required to operate under the law?”

Your positing a false dichotomy in which we supposedly only have two choices. Either the state never ever under any circumstances breaks laws, or we must allow to break them all the time. I disagree that those are the only two choices we have. National security in the real world cannot be that simplistic or idealistic.

For example, it may be that taking out bin Laden was a breach of international law. But it was still (if that was the case) the right thing to do.
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September 9, 2011 4:29pm
Scott Chris

FE Smith – “You are saying that the Goverment should be free to act outide the law”

Not quite. I know that the Labour government acted without popular mandate to restructure the New Zealand economy in the mid-eighties, which isn’t quite working outside the law, but it amounts to the same thing. But they acted to prevent, as they saw it, NZ going bankrupt. We may not have had a choice in the matter, as there seems to be some speculation that the restructuring was an unconditional demand made by the IMF.

So, if the wise heads in charge were to decide that NZ’s national security was under threat by a nascent nationalist terrorist movement for instance, but were powerless to act effectively, then perhaps there could be some room for discretionary action within strict guidelines, but outside the normal rule of law.
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September 9, 2011 4:38pm
F E Smith

International law and municipal law are two different things. A country is not necessarily bound to follow international law, and if it doesn’t there really isn’t much that can be done about it.

But what you are suggesting is that a government should be able to ignore the law of the land it governs, the law that it asks its citizens to follow.

I didn’t say they should break it “at will”. I said there may be times when it is necessary and they have very little choice. Sometimes governments, and for that matter people, are faced with decisions that involve having to choose the lesser of evils.

But who decides when to break it? Of course, it is the government, isn’t it? So it is ‘at will’, because they decide when and how. Ok, so you might pass legislation saying that the law of the land does not apply to the Government and Police in situations involving terrorism and national security. What does that authorise? To search homes and businesses without a warrant? To hold people incommunicado for days on end? To kill and injure? To torture?

Or do you think it will be limited, perhaps, to evidence gathering? That the government can give the Police a certificate allowing the Police, on a terrorism case, to ignore the Police Act or New Zealand Bill Of Rights Act and carry out their functions as they see fit, preventing the Courts from having any jurisdiction over the Police and making all evidence obtained automatically admissible?

I do not accept that there is any situation in which the Government/Police should be authorised to act outside the law. Once you start going down that route you end up on a slippery slope.

EDIT: Actually, in what situation do they ‘have very little choice’ but to break the law? Example?
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September 9, 2011 4:44pm
Lee01

Well, there you go, agree to disagree.

“situations involving terrorism and national security. What does that authorise? To search homes and businesses without a warrant? To hold people incommunicado for days on end? To kill and injure? To torture?”

Yes, possibly. With regards to national security related to terrorism I’m not opposed to any of those, including torture.

But then one of my personal fictional heroes is Jack Bauer. 🙂
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September 9, 2011 4:48pm
F E Smith

"What does that authorise? To search homes and businesses without a
warrant? To hold people incommunicado for days on end? To kill and
injure? To torture?”

Yes, possibly. With regards to national security related to terrorism I’m not opposed to any of those, including torture.

Wow.
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September 9, 2011 4:54pm
Scott Chris

Lee01 – “Yes, possibly. With regards to national security related to terrorism I’m not opposed to any of those, including torture.”

Much too extreme. Surveillance and limited detention max.
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September 9, 2011 5:01pm
Lee01

We live in extreme times.

Have a good weekend all.
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September 9, 2011 5:03pm
Viking2

F E Smith (1,115) Says:
September 9th, 2011 at 4:20 pm

Seriously, Lee?

I struggle with the idea that anybody would think it is acceptable for the Government, whether through the Police or any other agency, to break the law at will.

That especially applies to the Police, who are supposed to police by consent.

Ah well they are usually way to clever for that. They bend the rules to suit and use subterfuge and entrapment to put them on the winning side.
But then you know that.
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September 9, 2011 7:23pm
hj

Interesting background here:
http://peter-petterson.blogspot.com/2011/04/violence-is-virtue-why-urewera-17-were.html
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September 9, 2011 10:40pm
ross

FE Smith,

You’ve made the same mistake Christ Trotter and others have made in assuming that there was insufficient evidence to proceed to trial. As Crown Solicitor Simon Moore said:

“The Crown considers that there is no longer sufficient evidence to justify the continuation of the proceedings against a number of those charged solely under the Arms Act. In respect of the others charged solely under that Act against whom there is sufficient evidence, the public interest would not be met by a continuation of proceedings.”

So there was, in Moore’s opinion, sufficient evidence to proceed against various accused in respect of arms charges, but it was not in the public interest to do so.
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September 10, 2011 10:09am

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