Legal Beagle by Graeme Edgeler

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Legal Beagle: The Police Investigation into the GCSB

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  • Graeme Edgeler,

    If you want a little more information on the law around this, you can read other comments I have made on the GCSB case here and here.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Cameron Pitches,

    Given the police were the ones that asked the GCSB to intercept communications in the first place, isn't there a conflict of interest here? Who normally investigates illegal acts that involve the police? Surely not the police?

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • Cameron Pitches,

    And isn't the test here just intent, not criminal intent?

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Cameron Pitches,

    Who normally investigates illegal acts that involve the police? Surely not the police?

    The police.

    And isn’t the test here just intent, not criminal intent?

    Yes. I happen to think the test should be criminal intent, but it's not up to me.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Cameron Pitches,

    Thanks Graeme. This all relates to sec 216b of the Crimes Act, I gather.

    So who could potentially investigate the breach of sec 14 of the GCSB Act? Does this rely on a civil action being undertaken by an aggrieved party?

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Cameron Pitches,

    So who could potentially investigate the breach of sec 14 of the GCSB Act? Does this rely on a civil action being undertaken by an aggrieved party?

    That would most likely come into a civil claim. It would be part of a criminal charge if one was laid, because a defence applies to the s 216B charge if the person had authority under the GCSB Act. Section 14 would be used to show there was no authority.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Kumara Republic,

    Do I sense a civil suit coming on?

    The southernmost capital … • Since Nov 2006 • 5429 posts Report Reply

  • Graeme Edgeler, in reply to Kumara Republic,

    Do I sense a civil suit coming on?

    A civil suit was filed some time ago.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Sacha, in reply to Cameron Pitches,

    was thinking exactly the same #snap

    Ak • Since May 2008 • 19706 posts Report Reply

  • slarty,

    Is their any impact on an individual officers 'immunity' (if there is such a thing)?

    Since Nov 2006 • 290 posts Report Reply

  • Andrew Geddis,

    Hi Graeme,

    Got to the end of writing a post saying pretty much what you've said, then discovered you'd said pretty much what I had just said. So I posted it anyway: http://www.pundit.co.nz/content/laws-like-the-spiders-web-catch-the-fly-and-let-the-hawk-go-free

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • George Darroch,

    We should be reluctant to impose criminal penalties on those who lack a ‘guilty mind’.

    Very roughly, what part of the law of the requires 'intent'? Is it a small fraction, or a large one?

    If I kill someone, and there is intent, it's murder. Without intent, it's manslaughter. However, there's no question about intent if I'm driving above the speed limit, the charge is simply handed down.

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • Rich of Observationz,

    Graeme: if I ever get accused of a complicated and serious crime, will you act for me?

    I would disagree on the grounds that:
    - Based on the documents released, the police and GCSB appear to have had a "don't ask, don't tell" attitude to Dotcom's residence status. Given that it was a core part of GCSB's legal unpinning that they did not spy on NZ residents, this failure could be said to amount to a criminal intent to operate outside this part of their charter.

    - Civil liability is an effective deterrent against wrongdoing by an individual or a business owner/operator. Against a public body where the taxpayer will pay the damages, not so much. Further, it is unfortunately not (especially in the case of the police) regarded as a serious employment matter when an officer exposes a government body to such liability, so those involved would be likely to move on with their careers unsullied.

    - In an environment where government officers see their loyalty to the Anglophone security apparat as more important than obedience to niggles of NZ law, there needs to be a robust system of investigation. What happens if a future government were to restrict GCSB and their officers decided to ignore those laws and bug away regardless? Should they be able to avoid prosecution on grounds of an ostensible lack of intent?

    - I find it somewhat hard to believe the facts in this case, which appear to present the minimal amount of transgression compatible with the documented facts Dotcom's lawyers were able to extract.

    When we eventually elect a more progressive government, we need an independent enquiry into all of this with the ability to dig fully into the facts, make public anything that doesn't compromise a current investigation or impact privacy and initiate prosecutions as appropriate.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Ian Dalziel,

    disappoint mentor anger ...
    ...as I understand it, with that pesky (but coulda been useful this once) 'criminal act serving a greater good' defence loophole excised, isn't this to all intents and purposes the police saying the GCSB technicians "were 'just following orders', compounded by systems and/or communications breakdowns, don't look up, nothing to see here..."
    (The same staunch 'back-your-comrades-in-arms-no-matter-what' attitude that sees the head of Chchch police still refuse to apologise to a plucky pensioner )

    Will it really stop people trying to game the system?

    Has it sent a strong enough message up the food chain?

    Won't 'those-that-want-to-know-stuff-without-you-knowing'
    just be implementing work-around #2, #3, or...?


    Great work Graeme,
    as always....

    Christchurch • Since Dec 2006 • 7943 posts Report Reply

  • Graeme Edgeler, in reply to George Darroch,

    Very roughly, what part of the law of the requires ‘intent’? Is it a small fraction, or a large one?

    I would guess that most of it has some intent requirement. Certainly almost all of the serious ones have an intent requirement with respect to some aspect of the charge. Most of the laws that don't are regulatory in nature, or aren't really criminal offences.

    If I kill someone, and there is intent, it’s murder. Without intent, it’s manslaughter.

    Not true. You can kill someone with intent in self-defence. And a death may also be a complete accident, and not criminal at all. There is also (for the most part), an intent requirement for manslaughter, eg you intend to punch someone, who then falls and hits their head awarkdly on the concrete and dies.

    However, there’s no question about intent if I’m driving above the speed limit, the charge is simply handed down.

    Speeding isn't a criminal offence. You don't get convicted of it. Rather, it's an infringement offence. Those are much less likely to have an intent requirement. But even then there can be a question of intent. If you have a reasonable excuse (perhaps you were driving someone who had been seriously injured to the hospital), then that amounts to a defence.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Peter Graham,

    We don't need to use the criminal law in respect of individual employees of the GCSB to mark our disappointment, or anger, at what has gone on here.

    Why not? Someone at the the GCSB ordered an illegal wiretap. They didn't order it because they were mistaken about the facts of the case, they ordered it because they weren't trying especially hard to follow the law. I think if you work for secretive spy agency you have an obligation to at least seriously attempt to follow the law.

    Christchurch • Since Jul 2011 • 39 posts Report Reply

  • Don Christie,

    Question for other readers. Am I the only one that found this article incomprehensible?

    Just what point(s) are you trying to make, Graeme?

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Don Christie,

    So, a tweet suggests that what this is saying is...

    1. The police got the law wrong;
    2. That's ok.

    I say, damn straight, if the GCSB can't be above the law, who the hell can be?

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Paul Campbell,

    I generally have this feeling that because this is a secret agency that we have to trust to follow the law because there's no open, transparent public oversight the consequences of not doing the right thing ought to be higher than for say the council guy spraying the weeds on the street who sprays my petunias out there in front of everyone. (I'd say the same for other parts of govt that tend to work in secrecy too, parts of the police, the IRD, the defense forces etc etc).

    However a question: so the police have declined to prosecute, can someone bring a private criminal prosecution here? (I'm think of Dotcom who I suspect is quite likely to at least consider doing such a thing, and of course has the means) And if one did such a thing will we see a parade of GCSB spooks in the witness box?

    Dunedin • Since Nov 2006 • 2620 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    Speeding isn’t a criminal offence.

    But it can be. Under the Land Transport Act , s.7(2): A person may not drive a motor vehicle, or cause a motor vehicle to be driven, at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person.

    Section 35(1) then designates this as an offence (without any necessary mens rea element), with section 35(2) then stipulating that the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500 (plus a mandatory six month disqualification).

    If you injure or kill someone while driving at a speed that is, or might be, dangerous to the public, then the potential sentence increases markedly (see ss. 36&37) … again, without any mens rea requirement.

    Did I just Edgeler the Edgeler? I think I did!

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Ian Dalziel, in reply to Andrew Geddis,

    excito pro-verbia

    Did I just Edgeler the Edgeler?

    ...and while elevating him to hallowed
    google®-like verb status!

    Double points!!

    ;- )

    Christchurch • Since Dec 2006 • 7943 posts Report Reply

  • izogi, in reply to Peter Graham,

    Why not? Someone at the the GCSB ordered an illegal wiretap. They didn't order it because they were mistaken about the facts of the case, they ordered it because they weren't trying especially hard to follow the law.

    In my head I keep wanting to compare this with the '95 Cave Creek accident, where 14 people died and 4 more were seriously injured as a consequence of incompetence, unrealistic expectations, and ultimately a badly run government department that was placing unrealistic expectations on its employees. In that case there were calls for individual criminal responsibility of those on the ground because, hey, someone didn't put in the bolts and someone didn't properly attach the concrete counterweight and someone didn't get a proper geotechnical report. These individual prosecutions didn't occur at that level (and I agree with that), but I'm still a bit miffed that DOC's higher level management didn't appear to be held accountable for running the department in the way they were. Effectively, a horribly-constructed platform was built because it was just something employees thought they were expected to do, despite a very constricted resources. The effects of this cascaded throughout the construction such that few people involved were actually qualified or were aware that nobody else was properly taking responsibility for what they were doing.

    It's hard to see inside the GCSB for obvious reasons but I could imagine something similar happening if it were badly run such that employees weren't being properly managed in terms of their responsibilities and expectations and qualifications, to the point where if Police asked for something, it'd just be given to them. Where does this nebulous type of responsibility of a hideously run organisation, criminal or otherwise, end up if a department is being run so badly that its employees can act in this way without intending anything malicious? Surely it should be near the top somewhere, and probably more than just a single person? Otherwise there's just a big motivation to mis-manage departments so they can avoid legal responsibility.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    Section 35(1) then designates this as an offence (without any necessary mens rea element)

    I refer you to Brooker's Transportation Law, which, with appropriate references, notes:

    To justify a dangerous driving conviction, there must be not only a situation which is objectively dangerous, but also some fault on the driver's part which caused that situation.
    ...
    The driver must be proved to have driven with knowledge of the circumstances which made the driving dangerous, but need not have directed his or her mind to the danger

    If all you have is speeding, you haven't committed a criminal offence. You must not only have speed, you must also have danger.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    There is also (for the most part), an intent requirement for manslaughter

    Isn’t there always an intent requirement for manslaughter, in that you always have to have intended to do whatever it was that resulted in the death? It’s the difference between a construction worker tripping and knocking a concrete block off the edge of a building, or throwing it off without being told that it’s clear below. As distinct from dropping a concrete block off a motorway over-bridge, which I believe would be murder based on the legal discussions when it last happened (ETA: which were based on section 167(d) of the Crimes Act 1961).

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    You must not only have speed, you must also have danger.

    And it's quite possible to have danger without having speed. If you're doing 90km/h on the open road when it's foggy, been snowing, and there are black-ice warning signs, despite not exceeding the speed limit you will almost certainly be nailed for dangerous driving if there's a crash, because that is objectively dangerous in the circumstances despite being below the posted limit.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

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