The Dim-Post

September 29, 2011

Dumbest scare campaign ever

Filed under: Politics — danylmc @ 7:56 am

The Herald sums up the submissions to the Government’s Video Camera Surveillance select committee:

The committee also heard from Police Commissioner Peter Marshall, who said evidence was being lost and safety put at risk.

“I am aware of a particular situation which involves the safety of community members and we have been trying to identify a particular offender. It is a serious top-end scale offence likely to be committed.

This is the crux of the argument put forward by the Police, the Prime Minister and the Attorney General: ‘if we don’t give fisheries officials legal powers to install secret cameras in the home of private citizens, lives may be lost!’

So let’s talk about risk to the community. The police obviously consider Valerie Morse a risk to the community. They charged her with terrorism! That charge was thrown out by the Solicitor-General, and the Supreme Court dismissed the other charges against her because the police made an informed decision to break the law when they collected evidence against her. Because the police acted illegally, someone they consider a terrorist is at large! Haven’t they put us at terrible risk? When do we see some accountability on that score?

As far as the actual bill, I see this in terms of real-politik: the civil service is always eager to expand its powers; Judith Collins is an authoritarian who believes in the limitless expansion of police power for its own sake; Key is a pawn of his officials, and Finlayson is so desperate to become Justice Minister he’ll happily tear up his reputation as a legal expert to do so.

But let’s say you’re a National supporter, and you think the government is acting out of principled, selfless motives – they’re just trying to protect us! But National won’t be the government forever, and this sets a dangerous precedent for all future governments. Are you happy for a Labour-run government department to knowingly act in an unlawful way, then retrospectively change the law if they get caught out by the courts?

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68 Comments »

  1. Counterfactual – the raids happened under a Labour government. If they were still in power today, what whould they be doing following the Supreme Court decision?

    Comment by The Double Standard — September 29, 2011 @ 8:06 am

  2. The police were using surveillance right through Labour’s 9 years in office and democracy survived pretty well and indeed a group of extremists were prevented from forming an anti-democratic militia.

    So in the unlikely event of a Labour govt I think the police having the same powers would be the least of our problems.

    Comment by NeilM — September 29, 2011 @ 8:10 am

  3. “If they were still in power today, what whould they be doing following the Supreme Court decision?”

    IMO – probably something pretty similar – but isnt that the point?

    its pretty weird how in some quarters weve gone from -lightbulbs – “oh my god!” > to > shower heads – “the world is ending!” > then > election spending shenanigans – “here come the jack boots!” > and ended up with > illegal filming by agents of the state on private property “meh.”

    Comment by framu — September 29, 2011 @ 8:19 am

  4. So let’s talk about risk to the community. The police obviously consider Valerie Morse a risk to the community. They charged her with terrorism! That charge was thrown out by the Solicitor-General, and the Supreme Court dismissed the other charges against her because the police made an informed decision to break the law when they collected evidence against her. Because the police acted illegally, someone they consider a terrorist is at large! Haven’t they put us at terrible risk? When do we see some accountability on that score?

    Well, obviously that’s the Supreme Court’s fault, rather than the police’s. If they’d been willing to turn a blind eye and ignore the law, then we wouldn’t be in this mess.

    And that’s the police mindset which gave us planted evidence and Arthur Allen Thomas.

    Comment by Idiot/Savant — September 29, 2011 @ 8:33 am

  5. Because the police acted illegally, someone they consider a terrorist is at large! Haven’t they put us at terrible risk? When do we see some accountability on that score?

    had the police not used surveillance they would all be free. Morse got lucky but she’s no longer practicing for the revolution out in the bush.

    Comment by NeilM — September 29, 2011 @ 9:05 am

  6. If we hadn’t invaded Iraq, Saddam would still be free.

    Comment by Sanctuary — September 29, 2011 @ 9:14 am

  7. FFS, whats the fuss? According to the media the police have been video snooping for at least 17 years with the near 100% indifference of three parliaments, the police, public, defence lawyers and crims. OK, it needs to be tidied up *now* that a fuss has been made but the principle has been long established and accepted.

    JC

    Comment by JC — September 29, 2011 @ 9:19 am

  8. I don’t think too many people will be crying constitutional outrage if it means people like peace activist Valerie Morse are prevented from playing with guns and doing dodgy deals in the back streets of Wellington.

    Comment by insider — September 29, 2011 @ 9:24 am

  9. This is an interim tidy up of something that should have been tidied up yonks ago but there was no pressing need, now there is a pressing need. Pragmatism versus “dangerous precedent” – but I think governments have done the retrospective thing before with probably much weaker (self interested) justification than this one.

    Comment by Pete George — September 29, 2011 @ 9:31 am

  10. “According to the media the police have been video snooping for at least 17 years with the near 100% indifference of three parliaments, the police, public, defence lawyers and crims.”

    According to that same media, NZ’s Next Top Model is important. So if you choose to believe what you read/see/hear in the media … well, that’s an exercise of free choice, I guess. But don’t expect to be respected for exercising it.

    “I don’t think too many people will be crying constitutional outrage if it means people like peace activist Valerie Morse are prevented from playing with guns and doing dodgy deals in the back streets of Wellington.”

    True. But (i) neither of these examples are relevant to the actual Bill under discussion – the Morse case is excluded from the Bill’s effect, while filming in public places isn’t illegal after the Supreme Court’s decision; and (ii) in order to allow the Police to prevent 9-11 in NZ by covertly filming Tama Iti et al being revolutionary heroes, why is it necessary to allow fisheries officers to install video cameras in a boatshed to see if someone is catching under-sized blue cod?

    Comment by Andrew Geddis — September 29, 2011 @ 9:34 am

  11. Pete G,

    Why is it “necessary” for this “interim tidy up” to have a retrospective element?

    Comment by Andrew Geddis — September 29, 2011 @ 9:35 am

  12. @10,

    “According to that same media, NZ’s Next Top Model is important. So if you choose to believe what you read/see/hear in the media … well, that’s an exercise of free choice, I guess. But don’t expect to be respected for exercising it.”

    Are you seriously questioning this when this morning the Commissioner is quoted as saying:

    “Over the last 15 years or so we have had Crown solicitors’ advice, we’ve had advice from courts. I’m not sure if it is up to the police to bang on the door of the legislators and say we need this,” Mr Marshall replied.

    JC

    Comment by JC — September 29, 2011 @ 10:00 am

  13. JC,

    And that previous court advice remains good. The police can still covertly video, so long as you aren’t trespassing to do it AND that videoing doesn’t amount to an “unreasonable” search. They can’t covertly video if it involves a trespass OR if it amounts to an “unreasonable” search. This always was the law (even if there was no court decision that had spelled it out as plainly as the Supreme Court now has). So claiming that the Supreme Court has suddenly and unexpectedly changed the rules in this area is wrong – plain wrong.

    As for the Commissioner’s words – would you accept without question the claims made by the President of the CTU about the effect of a court decision involving an aspect of employment law? The Commissioner is not an uninterested party in this matter.

    Comment by Andrew Geddis — September 29, 2011 @ 10:12 am

  14. When you put it like that. Gulp. NO

    Comment by Barnsley Bill — September 29, 2011 @ 10:15 am

  15. Andrew – not as necessary as petitioning to keep Coro Street at whatever time it’s on now. Personally I’d like to see the retrospective aspect addressed, but the “fear” of dangerous people getting away with alledgedly bad stuff seems to seems to be pushing the polies – but 5.30pm is just terrible isn’t it?

    Comment by Pete George — September 29, 2011 @ 10:16 am

  16. JC @ 12 said “Are you seriously questioning this…”

    Andrew said it more politely than me, but the answer is a straightforward “yes”.

    Read the law. Read the Law Commission report from 4 years ago saying that the activity of the type at issue in the Uruwera case (i.e. installing video surveillance equipment on private property) was not legally authorised. Take some steps to educate yourself about what the law actually is before blindly deferring to the pronouncements of the nearest authority figure (said authority figure being, as Andrew said, hardly an uninterested party in this case). “Cos the cops say so” is not, and has never been, a determinant of what is legal.

    Comment by Eddie C — September 29, 2011 @ 10:41 am

  17. #6 – and over 100,000 Iraqi citizens would still be alive.

    Comment by Thawed out — September 29, 2011 @ 10:52 am

  18. Counterfactual – the raids happened under a Labour government. If they were still in power today, what whould they be doing following the Supreme Court decision?

    Best-case: they’d have passed the Search & Surveillance Bill in a proper and democratic fashion, rather than trying to shove through retrospective legislation under urgency.

    Comment by Russell Brown — September 29, 2011 @ 10:59 am

  19. @ andrew

    I note that the bill says that over the fence surveillance is also under threat as a result of the SC judgment. So it is not just trespass based video (that said, I couldn’t see anything in the judgment that said that but IANAL – have they redefined ‘unreasonable search’?) and it might be that that accounts for a number of the at risk operations that retroactivity is deemed necessary for.

    Comment by insider — September 29, 2011 @ 11:15 am

  20. Best-case: they’d have passed the Search & Surveillance Bill in a proper and democratic fashion, rather than trying to shove through retrospective legislation under urgency.

    Likely case: exactly as we have seen with the current Govt. though possibly packaged differently.

    Comment by Gregor W — September 29, 2011 @ 11:26 am

  21. I note that the bill says that over the fence surveillance is also under threat as a result of the SC judgment.

    Look, here’s a clue: Even since I got my head around indpendent expert opinions on what the law was before and after the supreme court ruling – I am not a lawyer – none of the pronouncements from anyone connected with the government on these things make sense.

    I have seen no dispute of those independent assements outside government.

    Seriously, just go see
    Dean Knight http://www.laws179.co.nz/
    Andrew Geddis (saves him reprinting all his posts here) http://pundit.co.nz/blogs/andrew-geddis
    Steven Price http://www.medialawjournal.co.nz/?p=502

    Or anyone else. The Law Commission’s submission is summarized here http://www.scoop.co.nz/stories/PO1109/S00420/nzls-opposes-proposed-surveillance-law-change.htm

    I think all of these people agree the police should be able to use video surveillance. It’s just that everything else about the Government reaction is constitutional Alice in Wonderland.

    (FWIW the person who declared what you mention in the bill would probably quote Sian Elias’ opinion on the need for positive authorisation for All Things, but I’m told the rest of the bench did not agree so it’s not really a factor.)

    Comment by lyndon — September 29, 2011 @ 11:40 am

  22. @Russell and @Gregor if I remember correctly the S&S Powers Bill from the last Labour Government gave even meat inspectors the power to bug phones, so I think the likely case is we would have seen all sorts of interesting activities go on if Labour had to try and rush it through.

    However I think the real issue that needs to use is why the Police tried to use the terrorism legislation. If exactly the same activities (that are alleged to have taken place) were being performed by the Black Power or Mongrel Mob no one would blink an eye at them being prosecuted using organised crime legislation. And the courts probably would have accepted the video surveillance.

    Comment by R Singers — September 29, 2011 @ 11:51 am

  23. Likely case: exactly as we have seen with the current Govt. though possibly packaged differently.

    Actual case: red herring.

    Comment by Pascal's bookie — September 29, 2011 @ 11:57 am

  24. If I remember correctly the S&S Powers Bill from the last Labour Government gave even meat inspectors the power to bug phones

    I understand thet they got quite clever with the devices that were bugged.

    Comment by Gregor W — September 29, 2011 @ 12:00 pm

  25. link fail

    http://www.textually.org/textually/archives/images/set3/26361_1_468.jpg

    Comment by Gregor W — September 29, 2011 @ 12:01 pm

  26. However I think the real issue that needs to use is why the Police tried to use the terrorism legislation.

    I think the rational at the time was that that legislation, or so it was thought, enabled them to intervene sooner – ie prior to those people actually doing something like killing a cop or kidnaping a farmer.

    It seems to me that both Labour and National, to their credit, were in no rush to pass the new surveillance legislation and had allowed a substantial amount of public input. I think Labour had issues with third party disclosure but no one from either party was beating the drum for urgent action, until now of course because of the court decision – an unforeseen consequence of events back under Labour.

    Comment by NeilM — September 29, 2011 @ 12:07 pm

  27. @ insider: “I note that the bill says that over the fence surveillance is also under threat as a result of the SC judgment.”

    You’ll also note the bill’s explanatory note says that there is some divergent legal opinion on that point. Mine is one – I do not think the S.Ct (outside of Elias CJ, who is on her own) says that over-the-fence covert filming is in itself illegal (as opposed to covert filming that involves trespass, which it did say was and is illegal in every case) UNLESS it amounts to an “unreasonable search” under the NZBORA on the facts. Other C. of A. cases have said the same about over-the-fence surveillance (it isn’t unlawful until it is unreasonable), before concluding that on the facts before the court the particular search was not unreasonable. So I don’t see the S.Ct as saying anything different to what the C. of A. has said on this matter.

    Now, it IS possible to argue that the S. Ct has given hints that some sorts of over the fence covert filming that the Police presently are doing will amount to “unreasonable searches” under the NZBORA on the facts and thus be illegal. However, the Bill before Select Committee will NOT deem such unreasonable searches to be lawful – the Government made this point quite clear. So, if this is a “problem” (which I doubt it is) then the Bill actually will not fix it.

    Comment by Andrew Geddis — September 29, 2011 @ 12:14 pm

  28. An excellent summary of the Law Society submission:
    http://www.imperatorfish.com/2011/09/law-society-slams-police-spying-bill.html

    Comment by ianmac — September 29, 2011 @ 12:24 pm

  29. I used to work in the same building for the same company as Valerie. To think, all that time, myself and dozens of my colleagues were at serious risk.

    But I am surprised, given that Valerie is public enemy number 1, she wasn’t put on round the clock surveillance, her every move watched and her every comment recorded. It seems that police instead opted for covert video surveillance only, ignoring all the other more mundane ways to obtain evidence.What Peter Marsahll really wants is for the government to sanction police incompetence.

    Comment by Ross — September 29, 2011 @ 12:25 pm

  30. > had the police not used surveillance they would all be free…

    Neil, correct me if I’m wrong but aren’t the Urewera 18 all free? And let’s not forget that even if Valerie and her co-conspirators had been convicted, they would have been looking, in all likelihood, at a fine. No jail time, just a fine.

    Comment by Ross — September 29, 2011 @ 12:31 pm

  31. correct me if I’m wrong but aren’t the Urewera 18 all free?

    yeah, wrong choice of words by me.

    Comment by NeilM — September 29, 2011 @ 12:35 pm

  32. @ Ross

    You’re wrong. She and others were followed and their conversations/communications bugged – the transcripts have been floating around the web for a couple of years despite suppression orders. She may not be public enemy number 1 but IMO she stepped over the line from being an annoying activist to a public risk the moment she started playing with guns.

    Comment by insider — September 29, 2011 @ 12:38 pm

  33. Andrew Geddis said:

    “As for the Commissioner’s words – would you accept without question the claims made by the President of the CTU about the effect of a court decision involving an aspect of employment law? The Commissioner is not an uninterested party in this matter.”

    That’s funny, Andrew, because only last week you seemed to accept without question John Key’s claim about the number of cases affected by the SC’s decision. You said he had no reason to lie, seemingly ignoring the possibility that he was provided with false and misleading information. Indeed, some of the submissions to Parliament have suggested that the numbers given to the PM have been exaggerated. Are you now saying that the Police Commissioner had every reason to gild the lily when he briefed the PM after the SC’s decison?

    Comment by Ross — September 29, 2011 @ 12:39 pm

  34. > You’re wrong. She and others were followed and their conversations/communications bugged…

    Yet she faces no charges…it must have been cogent and compelling evidence.

    Comment by Ross — September 29, 2011 @ 12:42 pm

  35. Ross,

    I see a difference between saying on National Radio’s Morning Report that the PM is telling the public lies and pointing out on the comments section of an insignificant blogsite run by a loveable man-child that the Police Commissioner’s portrayal of the legal position following Hamed v R may be somewhat biased. if you don’t, then that’s perfectly OK, too.

    Comment by Andrew Geddis — September 29, 2011 @ 12:46 pm

  36. What Ross said – I am increasingly of the view that covert video spying should be illegal under all circumstancs (though I am open to be convinced for serious cases, as suggested by No Right Turn, who thought the Crimes Act audio spying clauses could be broadened to include video spying – these clauses are limited to serious violence offenses, and are constrained).

    Letting police, or any govt agency (I’m looking at you SIS!), plant video cameras in our bedrooms or bathrooms is just plain creepy. Saying it won’t happen to us is bullsh*t – just look at what Ross said above. He could easily have been ‘accidentally’ spied on at his work, just because he shared a building with Val Morse. Ditto for any of us – do you know what your family or flatmates are up to 24-7? Of course not. Hopefully they’re not int’l drug kingpins, but if they are, I am not sure nabbing them is worth letting our police spy on anyone they come in contact with.

    After all, have we forgotten all those (recent!) cases of police rapists (on very borderline age girls), or police accessing citizen’s police files without authorisation, etc. Giving that blue gang the ability to spy in people’s homes just seems to tempt fate too much :(

    Comment by bob — September 29, 2011 @ 12:50 pm

  37. Well she did face quite significant charges in case you hadn’t noticed and a number of judges (including most if not all of the SC) thought the evidence good and important enough to not be discarded outright.

    Comment by insider — September 29, 2011 @ 12:50 pm

  38. “Are you happy for a Labour-run government department to knowingly act in an unlawful way, then retrospectively change the law if they get caught out by the courts?”

    I see what you did there.

    Comment by Hugh — September 29, 2011 @ 12:51 pm

  39. @ bob

    “Letting police, or any govt agency (I’m looking at you SIS!), plant video cameras in our bedrooms or bathrooms is just plain creepy.”

    Actually that is specifically allowed in the Crimes Act section 216 due to the Crimes (Intimate Covert Filming) Amendment Act 2006.

    Comment by insider — September 29, 2011 @ 12:57 pm

  40. Andrew,

    It’s good to see that you you treat Morning Report with such esteem, and you treat Danyl’s blog with the contempt it deserves. But my point was that you could’ve been just a little sceptical of the PM’s claim without actually calling him a liar.

    Comment by Ross — September 29, 2011 @ 1:16 pm

  41. But I am surprised, given that Valerie is public enemy number 1, she wasn’t put on round the clock surveillance, her every move watched and her every comment recorded. It seems that police instead opted for covert video surveillance only, ignoring all the other more mundane ways to obtain evidence.What Peter Marsahll really wants is for the government to sanction police incompetence.

    No. She and others were the subject of interception warrants. There were bugs placed, text messages intercepted and addresses covertly observed. The headline results are contained in the original affidavit. But when the police lost the terrorism charges, they lost the ability to use much or all of that evidence. At least some of what’s in the affidavit should be approached with great caution — it was never subject to challenge and some of it was selective and stripped of any reasonable context. But it was a big, expensive exercise and the invalidation of the evidence it reaped reflects very poorly on the competence of the police.

    Comment by Russell Brown — September 29, 2011 @ 1:16 pm

  42. Well she did face quite significant charges in case you hadn’t noticed and a number of judges (including most if not all of the SC) thought the evidence good and important enough to not be discarded outright.

    The defendants’ side has a habit of paraphrasing the Solicitor General’s remarks in such a way as to leave out the part where he refers to “very concerning activities” and congratulates the police on their work. Morse did it yesterday on Checkpoint and I was a bit surprised Mary Wilson wasn’t sharp enough to remind her.

    Comment by Russell Brown — September 29, 2011 @ 1:19 pm

  43. > Well she did face quite significant charges in case you hadn’t noticed…

    I noticed that she and her “terrorist” mates were looking at a fine, not jail time. So she and her mates were always going to be free, whether convicted or not.

    Comment by Ross — September 29, 2011 @ 1:21 pm

  44. @Ross: “…my point was that you could’ve been just a little sceptical of the PM’s claim without actually calling him a liar.”

    Why? I’m not a defence/prosecution lawyer. I don’t have any active, day-to-day knowledge of police practices in carrying out investigations. I was being interviewed regarding my expertise in constitutional law and practice. The question that was put to me (paraphrasing somewhat) was whether I agreed with the comments of some defence lawyer that the numbers were overcooked, and did I agree that the PM’s numbers were dodgy. Surely when I am speaking in my professional role as a person with a degree of specialist knowledge of a subject I should confine my comments to that which I believe I can substantiate, rather than engage in what can at most be speculation?

    Or am I just being too precious, and should have taken the chance to beat on Key ’cause we all know he’s a bad, bad man?

    Comment by Andrew Geddis — September 29, 2011 @ 1:33 pm

  45. @Ross

    The whole SC said the charges were serious. If you know what the sentence was going to be then wll done you. If you think her and her mates were terrorists, I won’t argue.

    @ Russell

    Under the interceptions law the police have to take out all the non relevant bits when using transcripts so that would remove what you and I probably consider context. I think the fact the case went all the way to the SC can’t be said to reflect badly on the competence of the police.

    Comment by insider — September 29, 2011 @ 1:42 pm

  46. Insider,

    It was reported earlier this year that those accused of firearms charges were, if convicted, looking at no more than fines. And I have no idea whether she’s a terrorist…which is why I put quotation marks around the word.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10723411

    Comment by Ross — September 29, 2011 @ 2:00 pm

  47. Steven Price and Felix Geiringer oppose the proposed Bill in its entirety.

    http://www.medialawjournal.co.nz/

    Comment by Ross — September 29, 2011 @ 2:07 pm

  48. @bob given the progression of technology just saying “you can’t do X” is of very little use, because “x” is replaced by “y” in quick order. Where I think this all leads to is the case Greg Bear portrays in _Slant_ (IIRC), where the police have to apply to an oversight authority to allow the use of evidence that may have been gained through technology in a manner that may breach an individual’s rights.

    Comment by R Singers — September 29, 2011 @ 2:16 pm

  49. FWIW I thought Andrew was being diplomatic re the PM, in a situation where it was critical to be so. If you want to engage in a constructive process it’s important not to be presonally attacking the person making the final decision.

    Comment by lyndon — September 29, 2011 @ 2:49 pm

  50. @ Ross

    You can believe a report from the US embassy but I wouldn’t see that as a guarantee – even one of the defendant’s lawyers didn’t believe it.

    from the MoJ – The proportion of cases involving offences under the Arms Act 1983 that resulted in a custodial sentence fluctuated from 10% to 17% between 1997 and 2003. The proportion rose from 13% in 2004 to 16% in 2006. Between 1997 and 2003, the average length of custodial sentence imposed for such offences fluctuated between 8 months and 12 months. In 2006, the average length of sentence imposed was ten and a half months. Note the most frequently imprisoned individual offences appear to be unlawful possession of a pistol or restricted weapon, and unlawfully carrying or possessing firearms, airguns, pistols, restricted weapons, or explosives. I believe these were the charges the Urewera group were facing

    Comment by insider — September 29, 2011 @ 3:00 pm

  51. @ insider

    You beat me too it.

    Ross, using a Herald article that cites a leaked diplomatic cable from a foreign embassy doesn’t really count as an accurate assessment of NZ statute or the potential outcomes of legal proceedings.

    Comment by Gregor W — September 29, 2011 @ 3:10 pm

  52. > FWIW I thought Andrew was being diplomatic re the PM

    But why be diplomatic about a PM who says that the law needs to be changed immediately and needs to be changed retrospectively? And when the PM says there are very serious criminals who could run free if this urgent legislation isn’t passed?

    Comment by Ross — September 29, 2011 @ 3:12 pm

  53. Insider and Gregor W,

    The cable was based on info apparently supplied by police (and possibly based on Crown Law advice). And then there’s the quote in the article:

    Asked whether the accused would face a fine if they were convicted of firearms charges, Mr Hirschfeld said: “There is a view that if there were any worth in the case at all, it wouldn’t rise much above that, if indeed it could reach that at all.”

    Of course if the charges were as serious as has been claimed, it is a little surprising they have been dropped (especially when the Crown Solicitor has claimed there is evidence on which to proceed with the charges).

    Comment by Ross — September 29, 2011 @ 3:17 pm

  54. > The proportion rose from 13% in 2004 to 16% in 2006

    In other words, a large majority convicted under the Arms Act were given fines, which suggests that the info supplied by police to the US Embassy was correct.

    Comment by Ross — September 29, 2011 @ 3:21 pm

  55. @ Ross

    So a police official opines on something (sentencing) that he has no jurisdiction over.

    Nothing in the article even mentions Crown Law, so it is equally possibe that this opinion is based on advice from the official’s dog(also un-named in the cable but believed by (Fmr.) Ambassador McCormack to respond to ‘Buster’).

    This is a clear case of “Sources tell us….”.

    Comment by Gregor W — September 29, 2011 @ 3:42 pm

  56. But why be diplomatic about a PM who says that the law needs to be changed immediately and needs to be changed retrospectively? And when the PM says there are very serious criminals who could run free if this urgent legislation isn’t passed?

    Andrew isn’t just an idiot blogger – he’s also a respected professor of law. So the select committee might pay attention to what he says – but they’re less likely to do so if he diverts from his subject area of expertise into talking about what a jerk the Prime Minister is.

    Comment by danylmc — September 29, 2011 @ 3:50 pm

  57. @ ross

    The act has a range of offences and possible sentences. Of the 100k plus offences of all sorts in NZ about half were fines, about 10% ended up in gaol time. SO you are more likely to get a custodial sentence with an Arms act conviction. Yes a fine was possible and statistically perhaps more likely (And maybe that was what the police told the embassy) but it wasn’t a done deal. In my uninformed opinion, I suspect most judges would have looked very dimly on what these people were doing and why, and a fine may not have cut it for what could be seen as near seditious activities. I doubt they would have seen it as akin to corporate paintball.

    Comment by insider — September 29, 2011 @ 3:57 pm

  58. I don’t think Valerie Morse is a terrerist. I saw her in [redacted] buying a coffee, and she lined up and paid and everything. If she’d been a terrerist, she’d have blown the place up with a suicide bomb, like they did in Four Lions, right.

    Comment by Rich — September 29, 2011 @ 4:33 pm

  59. Thanks, Danyl, I wasn’t suggesting that Andrew talk about what a jerk the PM is. But he’s been free and frank in his post #13, where he suggested we shouldn’t assume the Police Commissioner is telling the truth. Why assume, then, that the PM is? You’ll probably be aware that at least two submitters have doubted the PM’s claim on this issue.

    Wellington Vice-President of the Bar Association Ken Johnston, a barrister since 1979, said: ”In prosecuting over a number of years and in some defence work, I don’t think that I have ever seen a case where video surveillance material is the sole evidence. There is almost always substantial additional evidence.”

    Barrister Robert Lithgow from the Criminal Bar Association said he has seen no evidence that trials or operations are in jeopardy.”I would be amazed if those cases turned solely on illegal video surveillance, that there wouldn’t be perfectly legal audio surveillance – which often makes up drug cases…it would seem extraordinary that there are these set of cases where there is [no] evidence that will assist the inquiry other than, miraculously, a video image with nothing else.”

    http://www.stuff.co.nz/national/politics/5699656/Secret-filming-fix-legal-magic-dust

    Comment by Ross — September 29, 2011 @ 4:37 pm

  60. > I suspect most judges would have looked very dimly on what these people were doing…

    That assumes you know what they were doing, and it also assumes that a judge (or jury) would agree with you. Certainly, if you’re correct in your assessment, I might have expected the police to have suggested that the accused were looking at more than a fine. They haven’t done so.

    Comment by Ross — September 29, 2011 @ 4:45 pm

  61. Ross,

    Seeing as we’re being open and honest in our opinions, you’re being a bit of a dick. Barristers involved in criminal defence work have a basis to call into question the claims about the number of cases impacted by the decision because … they are involved in criminal defence work. I’m not. See that difference and why it matters?

    Comment by Andrew Geddis — September 29, 2011 @ 5:14 pm

  62. Yes a lot of uninformed assumptions but hey, that’s blogging. It’s a bit much though to definitively state the police have or haven’t said they were facing a fine. It’s not up to the police to promote let alone decide a sentence in this kind of case. As for cases turning on video evidence, I don’t think the PM ever said video was the sole evidence so it seems two strawmen arguments from those barristers. But this case shows that it can be an important foundation but foundations tend to come in groups and be mutually supporting. Lose one and you might just have a saggy floor, or the whole thing might tip over.

    Comment by insider — September 29, 2011 @ 5:23 pm

  63. Ross, you say ‘the police’ when you mean ‘a police official’. There is nothing to suggest the statement is anything more than a private opinion.

    Comment by Gregor W — September 29, 2011 @ 5:26 pm

  64. Just the thought of Labour ever getting back again and going back to their old habits of passing retrospective legislation to their own advantage makes me shudder. That’s more than a good reason not to let this principled govt. pass this bill!

    Comment by monty — September 29, 2011 @ 5:27 pm

  65. I have to hand it to the NZ police. On the same day they’re getting hammered over their illegal surveillance bill, they surreptitiously launch a bid to get access to every New Zealander’s DNA.

    (Now, I don’t think the proposal is entirely without merit – I might support it in the case of very serious crimes, with the application of a warrant. But I’m most unhappy about the way they’re going about it.)

    Comment by George D — September 29, 2011 @ 7:42 pm

  66. > Seeing as we’re being open and honest in our opinions, you’re being a bit of a dick.

    Thanks for that erudite and sophisticated comment, Andrew. That added considerably to the debate.

    Comment by Ross — September 30, 2011 @ 9:09 am

  67. > See that difference and why it matters?

    I saw that you had a crack at the Police Commissioner…but your experience and expertise is in constitutional law. Never mind.

    Comment by Ross — September 30, 2011 @ 9:11 am

  68. > It’s not up to the police to promote let alone decide a sentence in this kind of case.

    Firstly, the Sentencing Act 2002 promotes the use of fines and says (to the effect) that fines should be the penalty imposed where that is an option (unless circumstances make that unreasonable). So a fine in this case was always going to be the first consideration.

    Second, lawyers do deals with their clients. The recent case of the comedian charged with a sexual offence resulted, apparently, in a deal between the comedian’s lawyer and the Crown. After pleading not guilty to a more serious charge, he pleaded guilty in the expectation that he would not face a custodial sentence. That saved having a potentially drawn out trial, and also saved his daughter from testifying against him. Of course police may or may not have had input into that deal being made.

    Comment by Ross — September 30, 2011 @ 9:18 am


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