Tuesday, September 16, 2008

Dispatches from Wellington 1a - Faifax contempt trial


"The Terror Files" - ten months ago the Dominion Post, Stuff and other Fairfax papers published several articles that were based on the affadavit that was used to get the search warrant for the raids on October 15th. In these articles they also published intercepted communications, in a random, cherry picked sort of a way (cherry-picking the cherry-picking - since search warrants dont' generally include the perspective people raided, or even counter-interpretations). Now, ten months later, they were being taken to court by solicitor general for contempt.

By now I'm used to the rhthym of court, so I knew that the first issue that was going to be addressed was media coverage and suppression orders (the reading of the charges didn't take three days this time). The judges order stated that the media were not able to report, directly or indirectly, intercepted communications or Aaron Pascoe's affadavit, and that either party could apply for more suppression orders in the hearing (and one other question and answer was suppressed, although not a very important or interesting one).

This was followed by the Crown opening. David Collins, the solicitor-general was acting for the defence. His main points were the prejudicial effect of the Fairfax articles, and the effect they would have on the jury pool. He went into much detail in the various ways this article created fear towards the defendants.

He also pointed out that this limited . He said that there are realistically only two defences under arms act charges - one is an identity defence and the other that you were using the firearms for lawful, proper and sufficient purpose (which I don't think is true, because surely as well as arguing it wasn't you, you can also argue that its not a gun, although that's a little beside the point). The solicitor general's point (and it's a good one) is that if the jury has half remembered intercepted communications that might mean that it'll be very hard for the defence to argue that there were lawful proper and sufficient purpose.

The argument of the solicitor general, that the communications were suppressed, they were illegally published (there's a law against publishing intecepted communications) and that they prejudiced a fair trial. With a little bit of bombasity about how judges, not newspaper editors should make decisions about fair trials.

The judges suggested that he didn't need so many steps. The combination of the bar on publishing any intercepted communications, and the suppression orders on those The fact that the communications were suppressed, coupled with the illegaility of publishing intercepted communications would be enough in itself to demonstrate contempt. There wasn't necessarily the need to prove that the right to a fair trial was put at risk.

I found it quite hard listening to some of this, because it's frustrating to hear people talk about things when you know more than they do. When asked when the bail hearings had happened the solicitor general didn't know if they'd all been completed by the day the article was published. Because I was in court I had to listen to people burbling about what might have happened, rather than list off the various days that people got bail which I know, because I've been paying attention (also the day they got bail? I'm not going to forget that day).

The first crown witness was a woman, who I think worked in the crown law office, but I didn't catch her name. She played some role in putting together the Crown's evidence, but we didn't hear what, or see the Crown's evidence. It was a disjointed court hearing, as the witnesses briefs were taken as read. This meant we only heard cross-examination, and we never heard the substance of what the witnesses were saying. The cross examination focused on nit-picking the level of circulation of Fairfax (the figures that had been given included the Sunday Star Times and Auckland community newspapers), as well as discussing other coverage of these events.

Then Mr Burns, the Crown Prosecutor in the Arms Act charges, took the stand. After his non-brief the solicitor general asked him some supplementary questions. These were mostly on clarifying some of the issues of fact, such as when the bail hearings were (of course asking me would have worked just as well). One of the judges had asked when it was decided that hte proceedings would be moved to Auckland. Mr Burns pointed out that it is only the preliminary hearings that have been moved to Auckland. There was some discussion about when the trial would happen, and he seemed to think that it could be before 2010 (which seems unlikely to me).

But the big news was that Mr Burns said that the Crown was considering laying additional charges of participating in an organised criminal group against some of those currently facing Arms Act charges. A quick perusal of Section 98a of the Crimes Act makes it clear that it'll be an uphill battle. An organised criminal group is defined as a group which has as one of its objectives either "obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more" or "the commission of serious violent offences that are punishable by imprisonment for a term of 10 years or more." (Of course me first reaction was "I'll go on the stand to testify that you're not organised" - turns out that's not a legal requirement - legislators ruin all the best jokes).

It's such a bogus charge. If they had any reason to believe that anyone had committed serious violent offences (or minor violent offences, or property offences or anything which requires a concrete action), then they would have charged them ten months ago. But beyond the dubious Arms Act charges, they don't have anything, which doesn't stop them trying to punish the defendants any way we can.

Anyway back to court today; Hugh Rennie's cross-examination of Mr Burns mostly focused on issues that he explained in more detail in his opening remarks, so I won't go into any detail. In response to comments about confusing suppression orders, the judges asked Mr Burns if anyone from the media contacted the Crown prosecutors to clarify the situation with the various suppression orders, and Mr Burns replied that they hadn't.

Aaron Pascoe, the lead detective for Operation Eight was the last prosecution witness. The questions for him were mostly about the nature of the affidavit. He gave evidence that the version of the affidavit leaked was the version that was the version that was provided to defence lawyers on the 18th of October. There was also some discussion about the leaked version of the affidavit on the internet. Hugh Rennie implied that the affidavit was leaked on the internet before they got bail. I don't know whether he was being tricky, or if he was fact-free, but the affidavit wasn't leaked on the internet until after the Dom Post article came out. One of the reason I was reading the leaked affadavit was to evaluate the Dominion Post article, and see if any of the quotes came from anyone I knew.

That was all there was from the prosecution, although we didn't hear most of their case because it was in the briefs and bundles of documents that had already been produced.

Hugh Rennie's first argument was that the information published by Fairfax wasn't substantially different from publications that were already in the public domain. That Howard Broad, Helen Clark and Annette King (among others) had all made equally prejudical comments, which had to some degree relied on the intercepted communications. He's not wrong. I think my favourite bit was when he quoted the solicitor general's decision not to proceed with the terorrism charges which included a statement that solicitor general agreed with the police decision to investigate under terrorism legislation and that the raids had put an end to very disturbing activities. The judges didn't have much time for 'they did it first arguments', but Hugh Rennie succeeded in pointing out that Fairfax was somewhat of a scapegoat for the extraordinary media coverage and public statements from many people (which was in turn covering up how much of a mess operation 8 was).

He then made a rather spurious argument that the comments quoted didn't have anything to do with the Arms Act charges people now face. Which ignores the argument about a legal, sufficient and proper purpose defence that the crown had already made. But things got really complicated when he started discussing existing suppression orders that arose from bail hearings.

Those who were around at the time will remember that there were a series of bail hearings (I could probably give you the dates of most of them if I thought about it). At most of these bail hearings some intercepted communications were introduced, and then suppressed. Hugh Rennie was trying to argue that the suppression orders about the intercepted communications only arise if people learn about them from teh bail hearing. In this case they came from the affadavit rather than the bail hearing, and under those circumstances they weren't suppressed. This didn't sit very well with the judges - who pointed out that names are often suppressed at bail hearings, and it wouldn't be OK for journalists to find out the name from a different source and then go and publish anyway. At least part of the case will hang on this issue of whether or not there were suppression orders that covered the intercepted communications (Hugh Rennie is also arguing that Tim Pankhurst didn't know about the suppression orders - I odn't know if that's a defence).

Although that's not the only issue because possession and distribution of intercepted communications is also illegal under the Crimes Act. Therefore the Solicitor General doesn't necessarily need to rely on the suppression orders (and wasn't in his opening address).

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