Legal Beagle by Graeme Edgeler



I have just caught up with last week's Q+A, and yesterday's Native Affairs, both of which included segments on the Urewera cases.

A number of false claims were made by a number of people. I won't bother to single them out, but I offer the following corrections:

1. The Terrorism Suppression Act does not give police any powers. It just doesn't. The act creates some criminal offences, and then the police have to rely on the same powers they use to investigate other criminal offences (search warrants for imprisonable offences, interception warrants for really serious offences, etc.). They don't have special warrant powers, or surveillaance powers, or arrest or detention powers. Nothing new whatsoever. I repeat this a lot because of the lot of people made this mistake a lot of times. For more information, you can read the posts I wrote at the time of the raids about the reach and meaning of the Terrorism Suppression Act.

2. The High Court Judge did not rule that the police video surveillance was lawful. Rather she ruled that it was unlawful, but the charges serious enough that despite police acting illegally, the evidence would be admitted anyway.

3. In the Court of Appeal, the three judges ruled that some of the video surveillance was unlawful (because it involved an illegal trespass) and some (in relation to the camp itself) was lawful (because they didn't think there was a trespass). Despite the police behaving illegally in respect of some of it, they would have let the evidence in anyway, for same reasons as the High Court Judge.

4. In the Supreme Court ALL FIVE JUDGES said the police acted illegally. There were not two who thought they acted legally. There were certainly not three who "dissented". Each Supreme Court judge thought the police broke the law. In fact, in respect of at least some police action every single judge from the High Court up who heard the case found illegality (albeit the Court of Appeal judges not much). The two judges who dissented in the Supreme Court only did so on the question of whether the evidence should be admitted despite the illegality.

5. The High Court Judge who was granting interception warrants was not granting warrants to do with the video surveillance, so he or she did not say such surveillance was lawful. Interception warrants are about covert audio recording like listening in on phone calls, or tapping into text messages. I do not believe it has been suggested that the act of getting these warrants and undertaking that surveillance was unlawful, and using it to argue that you thought police were acting lawfully with the video surveillance is wrong.

6. The allegations that the accused were setting up a private militia are not unproved. As part of a sentencing exercise, it is a judge's role to make factual findings. This was among his. He heard a whole bunch of evidence, and came to his considered view. Whether that view is correct, and whether that view was open to him given the findings of the jury on the charge of participation in a criminal group is a matter for the appeal courts, but the finding has been made beyond reasonable doubt.

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