On the Urewera verdicts (and Nick Smith)

While the Crown regroups and rethinks about a possible retrial of the Urewera four, the country should taking a long, hard look at how the Police and prosecution have performed. Talk of a retrial is out of the question, surely. This is just the Crown trying to save face, and beating the most dignified retreat it can manage in the circumstances.

Besides the cost, and the likelihood that another jury hearing the same evidence would be just as split, there is the issue of natural justice and the time being taken to deliver it. The original arrests were five years ago, and the delay in getting to this recent trial was already stretching the acceptable boundaries of timeliness. Any decision that meant the accused would have to wait a further year or two years to finally clear their name would be open to challenge by the defence as an intolerable link, now, in the chain of delay in justice being served.

As yet, we do not know how the jury was tilting – towards acquittal on the main charge of conspiracy to join a criminal group, or towards conviction, or whether the numbers were evenly split. The other immediate issue is the sentencing for the firearms charges. On RNZ this morning, there was some dissent over whether the firearms offences were merely technical, or fell towards the top end of seriousness.

I have no legal background but – surely – the context for the firearms offences has to be ring fenced from the swirl of circumstantial evidence put forward by the Crown to support the main charge. The Crown cannot be allowed to hope that its failed terrorism training conspiracy scenario can be somehow recycled in the context of the firearms charges, and thus win the jail sentence that the same evidence couldn’t earn on the main charge.

Hopefully, the court can be expected to treat the firearms charge as being a purely technical issue – based predominantly on whether this was a first time offence, or not – while the Crown’s alleged context is treated as irrelevant.

In the ten years after 9/11, the country has seen two major cases involving the Police/Crown response to alleged terrorism threats. Namely, the Urewera case and the Ahmed Zaoui case. Both times, the authorities leapt to the wrong initial conclusion, and then spent a vast amount of time and resources trying to make those wrong assumptions sound credible – even when there were far simpler, and far less lurid explanations for the same facts.

The lesson seems clear. Give the authorities wide and sweeping powers to combat terrorism without putting in place proper checks and balances, and you can bet that over-excited officers in the field will use those powers. Head office will then close ranks and use any means to justify the initial dumb premises.

Of all the systems prone to bureaucratic face saving, the justice system seems the one most open to abuse – which is why the checks and balances at each stage of the process have to be made far more robust. Ministerial discretion has to exist, and has to be used. Unfortunately, the separation that makes genuine discretion possible has been eroded, as the public service has gradually become politicised.

What we now know – thanks to Wikileaks – is that as early as 2005, the authorities were expecting to lose the Zaoui case. But they pressed on until mid-2007 spending money and inflicting further trauma on the accused, regardless. A succession of Ministers with the discretion to intervene did not do so. There was seen to be an over-riding need to save face, politically and administratively.

Much the same seems to have occurred in the Urewera case, as well. The numbers of people being charged got whittled away, as the illegality of the Police evidence gathering became clear. The authorities probably knew, even before they reached the courtroom door, that they would be very lucky indeed to convince a jury. Yet they pressed on, because there was no politically acceptable way of turning back.

In the Urewera case, the accused had initially been denied access to a jury trial and had to fight for their right to have the charges heard before a jury of their peers. Doubtless, some will now treat the hung jury outcome in this case as further ammunition for scrapping jury trials altogether – as recently mooted by the Law Commission – and will be advocating that New Zealand should move closer to a European system of inquisitorial justice, where the judge investigates the evidence and delivers the verdict.

The opposite conclusion seems to be far more valid. Justice is meant to be weighed, not delivered unilaterally. The diligent way that this jury went about its work – and the fact that some jury members reached one conclusion and others, another – should be seen as being a strength of the jury system, not a weakness. (Guilt is supposed to be proven beyond reasonable doubt.) Juries are one of the necessary checks and balances in our system of justice – and they seem particularly valuable at this time, when the Police and prosecution are prone to become so over-excited. We have already weakened the jury system by making majority verdicts possible. Yet even that change couldn’t save the Crown case, this time.


Resign, Nick Smith

How many times have we heard how Ministers will not, and simply cannot comment on operational matters? When it suits them to dodge accountability, Ministers become very, very learned about the conventions about not meddling in – or being responsible for – the actions of their departments.

So its very hard to believe that then-ACC Minister Nick Smith didn’t know exactly what he was doing when he wrote a letter to his officials about matters relating to the ACC claim of one of his friends. In the letter, he even said it would be improper for him, as Minister, to intrude – but then did so anyway, and on ministerial letterhead to boot. It is hard to see how it can be taken as anything other than an attempt to influence the decision. That’s what reference letters are meant to do. That’s why it is entirely unacceptable for Smith to have written one for his friend, and sent it to his own officials for their consideration.

Ultimately, we are being asked to decide whether Nick Smith is a fool or a knave. If he was trying to make officials an offer that they couldn’t refuse on behalf of one of his cronies he is corrupt and should be sacked. If he doesn’t know it is wrong for a Minister to seek to influence the decisions of his departmental officers to help out a friend, he is a fool unfit to hold a ministerial warrant.

It should be a pretty clear decision for John Key. Unless of course, bending the rules for your mates is normal operational practice.


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