Winston Peters versus ministries and MPs nearing an end

The Winston Peters versus government ministries and heads of departments, and two National MPs, is nearing an end as closing addresses began yesterday.

There is no doubt that Peters’ privacy was breached, but despite Peters making serious allegations and insinuations there is no indication of solid evidence to back up any of his bluster. This looks to me like classic Peters – he has a long history of making accusations and not backing them up with evidence or substance.

Peters claims his reputation was damaged, which is rather ironic given the number of times he has tried to smear the reputations of others over the years, but his own disclosure to media of a seven year overpayment of his superannuation, and what has been revealed due to his own claims and actions in this case, are making it like more of an own goal.

Peters is finding that he can’t get away with bluster and bullshit in court like he has in politics for decades.

The case has proven that he has made false claims, in particular that MSD had conceded they made a mistake with his Super application form – it appears to have has been made clear in court that Peters made the mistake himself and signed in incomplete and inaccurate disclosure. For some reason he disclosed that he was married but separated, but he failed to disclose that he was living in a relationship with Jan Trotman. It was when Trotman applied for Super in 2017 that MSD became aware of the incorrect payments to Peters. They had asked for conformation from Peters that his details were correct in 2014, but he claims not to remember receiving the letter.

Despite all Peters’ insinuations and innuendo the case seems to have come down to whether it was proper for government departments to advise ministers under the ‘no surprises’ practice. Department heads have made it clear that the procedure was normal and proper, and also said that Peters’ claim there was a 3 month pre-election no disclosure period was not based on facts.

Newsroom – Expert surprised by Peters’ claims

Former top civil servant Sir Maarten Wevers has thrown doubt on three claims by Winston Peters that governing conventions were ignored by two chief executives who told National ministers about Peters’ superannuation overpayment.

Wevers, an expert witness called by the Crown defendants in the breach of privacy case brought by the NZ First leader, backed each of the two chief executives’ decisions and conduct in the affair – and told the High Court Peters was wrong on three claims he had made in court.

Wevers backed both Boyle’s decision to brief his minister, Anne Tolley, and Hughes’ decision to brief Paula Bennett.

“A high-profile, notable, and very public figure had received money through the state benefit system that he was not entitled to. That followed an error he had made on a statutory declaration he had made.

“The individual was a former Cabinet minister, sitting senior MP, leader of a political party.

“There were issues in play as to the integrity of the system,” Wevers said.

Boyle had not rushed to judgment, Wevers said, but consulted with the State Services Commission – whose advice was the appropriate “buttress” in such a situation between a department and minister. His briefing to Tolley met expectations and “given what was going on with Metiria Turei, this was a matter with potentially high public interest. “That was the context – if Mr Peters had become public, another MP had received money they were not entitled to.

“Ministers expect to be forewarned about this and to be assured that MSD had handled the matter appropriately and to defuse any suggestion there had been preferential treatment.”

Wevers said in his opinion Hughes’ briefing to Bennett had also been appropriate. “In the same position I would have taken the same course.”

That addresses (and opposes) the main claim by Peters in the case.

Newsroom – Words matter to these civil servants, Mr Peters

Journalists and opposing politicians seldom have the opportunity to precisely fact-check – with access to his documents – claims made by Winston Peters. But one government department has done it.

A Winston Peters interview on RNZ in August 2017 has featured repeatedly in his High Court privacy case.

Peters had denied, to RNZ, a report by Newsroom that he was billed $18,000 by the Ministry of Social Development for the seven-year overpayment, in an interview that also ran in a story on the Stuff website on August 28, 2017.

The MP said he repaid “way less” than $18,000 and then said it again:

“To say I repaid $18,000 is demonstrably false.”

He didn’t pay back $18,000. The court heard, first from Peters on day one and then repeatedly from others, that he repaid $17,936.43.

It was court evidence so is accepted as demonstrably true rather than his claim of “demonstrably false”.

In the same Stuff story, Peters made the following claims, all fact-checked by MSD in preparing for its officers’ time in the court-room. This interview was after he had looked into the problem, had it explained to him and received and paid the invoice for the debt he owed:

– Peters claimed the overpayment likely started in 2013/14. MSD staff and Peters confirmed in court it started on April 12, 2010, the day he applied for it.

– Peters said he had asked in 2017 to speak to the person who dealt with his case in 2010 but that person no longer worked there so couldn’t act as a witness. MSD witnesses told the court the staff member worked in 2017 at the same office, in the same role, and does so until this day. She gave evidence for MSD to defend Peters’ claim. An MSD witness denied Peters had asked her in 2017 if he could speak to that original case manager.

– Peters had said about his repayment: “The reality is a payment like that also attracts interest.” An MSD witness told the court she had seen this claim by Peters and it was wrong. The ministry never charged interest on debts it wanted repaid and no issue of financial penalties would arise unless fraud had been involved, which was not the case for Peters.

– Another MSD witness told the court she had seen in a media report in 2017 that Peters had claimed he had not received the full superannuation because his payment had been “abated”. She said no such abatement existed and the records back to 2010 showed he had been paid the full rate.

– Evidence from the official who dealt with Peters in 2017 said: “I remember reading in the media that Mr Peters was saying MSD had been unable to resolve how the mistake happened. That is not correct. It was very clear to me, which I communicated to Mr Peters in our meeting, that he had been paid the incorrect rate of superannuation as a result of his declaring at question 26 that he was in a relationship and completing the partner details accordingly. He had been paid in accordance with his declaration – as a single person.”

– A regional official said she was aware of Peters’ evidence that his application form was incomplete because he had not ticked a box on his current relationship status. “Based on all my service experience I do not consider the form is incomplete and I am not surprised it was processed in the form. The key information needed to determine Mr Peters’ relationship status was provided, i.e that he was separated.”

– Another official also challenged the claim MSD had made the original mistake. “I’m a bit of a perfectionist at times,” the case manager he dealt with in 2010 told the court. “It was hard to hear that I had made a mistake. I was upset because I knew this was not correct, but I had no way to defend myself.”

– Further, she said media reported Peters saying there appeared to have been an alteration on his application form and no one knew how it had been made. “Categorically, we do not alter forms,” she said.

– Two MSD officials recalled Peters having told media he had dealt, in 2010, with a “very senior” MSD official. The woman concerned told the court: “He referred to me as a very senior person at MSD. I definitely do not consider myself a very senior person at MSD. Case manager is hardly what I call very senior.”

Tim Murphy and Newsroom have been providing detailed coverage of the case (Murphy was originally included in the legal action).

In this story, they alleged Peters had made multiple errors on filling out his form, and dated his signature on it on a different day to that which he claimed. He has also cited in evidence an incorrect and irrelevant statistic about MSD cases involving relationship issues.

In this story, they challenged his claims over an MSD policy and a public service pre-election protocol.

In this story, the court heard three staff from the office at which he applied for super in 2010 would give evidence that Peters attended alone and his partner Jan Trotman was not there. Both the MP and Trotman gave evidence that she was there, but the three officials appeared later in the week and on oath repeated their firm belief that he had been alone at all times.

Yesterday final addresses began – Peters case: The dog that didn’t bark

The lawyer for Crown defendants in the Winston Peters superannuation leak court action says the NZ First leader’s evidence is like ‘The Case of the Dog that Didn’t Bark’.

Victoria Casey QC told the High Court at Auckland in her closing submission on day seven of the case that Peters had made sweeping allegations against the State Services Commissioner Peter Hughes, the former chief executive of the MInistry of Social development and the ministry itself.but had not backed them up in court.

His statement of claim for damages over the leak of information in 2017 on his seven-year, $18,000 overpayment of national superannuation claimed the officials and department had acted in bad faith, but neither Peters’ evidence in court nor his lawyer’s cross examination of witnesses had attempted to confirm that.

The now Deputy Prime Minister claimed the disclosure of the overpayment information was for the purpose of salacious gossip and made deliberately to political opponents before the election but  he had not made the case for any of these central claims. “The plaintiff is required to prove his case,” Casey said.

“This case is, with respect to Sir Arthur Conan Doyle, the case of the dog that didn’t bark…. The silence is, with respect, resounding.”

Bruce Gray QC, closing for two former National ministers Anne Tolley and Paula Bennett, who Peters is also suing for $450,000 in the breach of privacy case, told Justice Geoffrey Venning: “We have asked ourselves: ‘why are we here’? What is this case about?”

The lawyer said Peters had acknowledged in court he was more sensitive about privacy than many people and his desire for secrecy might have been the reason for his original failure to provide full information about his de facto relationship when applying for superannuation. “He did not feel it necessary to make disclosure of something he preferred” people not to know about him.

The MP had chosen to reveal to the public the fact of his overpayment and the MSD agreement that he should repay the $18,000. That was the reason it became known and had set the tone of media and public commentary. No other publication had occurred, Peters had provided zero evidence there had been ‘social media’ publications about him as he claimed and the fact two journalists had received anonymous calls did not mean a publication was imminent. The calls in themselves were not  evidence of serious harm to Peters.

He said Tolley and Bennett did not even get briefed on the extent of information provided to journalists by the leaker. “It seems they did not know there had been any suggestion at all that Mr Peters had lied, so could not have told anyone that.

“In any event the publication was not highly offensive or objectionable to a reasonable person. Mr Peters is not an objective reasonable person. He is more sensitive than average to privacy matters. His subjective views are not the test in this case.”

Gray told the court: “This proceeding is a defamation case in drag. We still do not know precisely what Mr Peters complains about.

Peters was seeking $450,000 from each defendant. “The plaintiff’s claim in this case is beyond extravagant and is further evidence for the genuine motivation for the proceeding,” Gray said.

“It is a shame this claim had to be made. It seems to arise from an inability to accept a mistake had been made, and a desire to punish.”

Victoria Casey QC, for the three Crown defendants, began her closing late in the day and will finish this morning.

She said: “Something happened that should not have happened. The fact that it did enter the public domain did not establish that the Crown defendants are liable at Common Law and MSD is not liable for unknown actions to the media.”

Peters had conducted the case in a way that made serious allegations about her clients in pleading but did not bring them up personally in evidence or in cross examination. She said to Justice Venning: “We do ask that you pay attention to who was asked what and more importantly who was not asked anything.”

The MP claimed  in the media in 2017 that senior officials had been part of a “cartel playing politics” and that “very senior politicians had been operating outside the law… in tandem with ministers.”

Casey said: “This is the case to which that privilege applied. This is the case where if Mr Peters had any foundation for these comments they should have been brought before the court. We have no evidence whatsoever about a cartel, a conspiracy and no questions to the ministers or chief executives about these claims.”

Despite all Peters’ public claims the case made at court against the Crown defendants seemed to come down to the decision the chief executives took to brief their ministers on the Peters situation after it had been resolved.

“There is no allegation pleaded or in evidence that the plaintiff [Peters] suffered damage from the briefings to ministers.”

In claiming that his reputation has been tarnished Peters himself has taken to court and called into question the reputations of MSD employees, department heads and two MPs.

It may turn out that he has enhanced his own reputation of a blusterer and bullshitter.

Anne Tolley’s reputation has taken a bit of a hit – Minister told husband, sister about Peters’ super

Former National minister Anne Tolley told her husband and her sister about Winston Peters being overpaid superannuation after she was briefed by the head of the Ministry of Social Development.

But most shots fired in court have been blanks or missed their mark.

Tolley and Bennett reject Peters’ claim that under the legal principle of ‘res ipsa loquitur’ or ‘let the thing speak for itself’, Chief High Court Judge Geoffrey Venning should infer they disclosed the Peters’ information publicly.

Gray said: “They resist this. They say that neither of them disclosed the information.”

There has been no evidence produced of who disclosed the private information.

Newsroom – Two ministers and a drunken conspiracy

Could someone from the National Party, stressed, and slightly or heavily intoxicated have told journalist Barry Soper that news of Winston Peters’ superannuation overpayment was about to leak?

That was an implication from a series of questions from Peters’ lawyer Brian Henry in the High Court at Auckland today to former National minister Paula Bennett.

He did not ask Bennett if she was that person.

But when he asked her if she had a view on the “inference” which could be taken from Soper’s evidence on Tuesday that he had been told by someone from National, she answered:

“No. I’ve had many allegations made as to who may or may not have leaked this but I see no more validity in this than any other.”

Henry, who had called the NewstalkZB political editor Soper to give evidence under subpoena, said: “Someone told him about this coming scandal for Mr Peters. Someone he is leaving us to infer is from the National Party.”

It was in Bennett’s cross-examination that Henry, for Peters, suggested a National person had been Soper’s source.

Despite Soper declining in court to reveal that source, Henry told Bennett: “He had been told by a source that we are left to infer was from the National Party.”

Justice Geoffrey Venning interceded to say: “That’s your inference, I think, Mr Henry.”

In politics Peters is big on bark but often without evidence to back up allegations and innuendo and inference.

In court he has barely whimpered, and his lawyer Brian Henry has had a hard job inferring for him with a glaring lack of substance.

Perhaps the dog ate the evidence.

Defence closing submissions will conclude today, and will be followed by the closing submission by Peters’ lawyer.

Peters in court versus Government departments and National MPs next week

Winston Peters is expected to be in court or up to three weeks beginning on Monday when his case against the Attorney-General (on behalf of the Ministry of Social Development), the ministry’s chief executive, the State Services Commissioner and former ministers and national MPs Anne Tolley and Paula Bennett.

This is over an alleged leak of details of an overpayment to Peters of Superannuation from 2010 until 2017. He received a single person’s Super but was living in a relationship.

Peters actually outed himself after journalists were given the information and started asking questions.

I’m not sure how everyone taken to court by Peters can have leaked the information.

There are a number of bizarre aspects to all this.

Newsroom:  Peters’ day job on hold as he sues the Crown

Winston Peters will take time off his day job as Acting Prime Minister next week when his high-stakes court action begins against the head of the public service, a top mandarin, a government agency and two former National ministers.

His case alleging a breach of his privacy in the leaking in 2017 of his seven-year national superannuation overpayment starts in the High Court at Auckland on Monday.

Peters’ case has moved from an initial focus against the two National politicians for leaking the details of his overpayment, to now claiming the government departments and officials breached his privacy in advising the ministers. Further, he has accused the officials of being reckless and acting in bad faith, and the Crown is defending that allegation with vigour.

This seems to have been a fishing expedition with Peters trying too discover who leaked the information. As information was provided he seems too have changed his targets.

Newsroom and Newshub were two media organisations that received anonymous calls alerting them to the overpayment and were initially subject to Peters’ legal demand to reveal phone, electronic communication records and any journalistic notes. The demand was refused and Peters abandoned that action.

Peters should have known that journalists are able to protect the identity of sources. He seemed to think he could legally bully them into revealing who provided the information.

The Deputy PM wants $450,000 in damages from each of the named defendants, meaning a total of $1.8 million if he pursues all of those monetary claims listed in early court documents.

That’s a lot being claimed. I have no idea what his chances are of getting anything like that amount. This is an unusual case so there are unlikely to be similar precedents.

Any damages awarded would be covered by the taxpayer under an arrangement authorised by the Cabinet. Taxpayers are also paying for the two Queens Counsel and legal teams.

Regardless of whether damages will be awarded this is an expensive exercise. Peters is at risk of it backfiring.

Peters has implied publicly that MSD made the error in which he was recorded on that application as single rather than in the de facto relationship with Jan Trotman that he was in at the time. Court documents show that in ‘interrogatories’ – or questions asked by the Crown in advance of the hearing – Peters acknowledged he could have received a letter in 2014 asking him to check the details on that 2010 application, but does not recall that and did not read it if it did arrive.

I doubt that not reading a letter is a solid defence for not being aware he was being overpaid.

It is odd that he received an overpayment for years without knowing it was more than he was eligible to receive.

Peters’ lawyers filed the first application in this case – featuring the various National Party figures named above – the day before the September 2017 election and he then proceeded to negotiate ‘in good faith’ with both National and Labour, before serving the papers on the National MPs and others after the Labour coalition was formed.

I suspect National knew that Peters was simply using them to push a better deal with Labour. It’s hard to see serious intent to negotiate a coalition agreement with National.

It was alleged recently that Peters had offered to drop the legal action if Paula Bennett retired from politics. That can’t be true – but if it was it sounds like a form of extortion.

In past election campaigns Peters has insisted he wouldn’t indicate which parties he would consider going into coalition with. It would be even more farcical if he tries that again next year.

Bennett and Tolley could be in the witness stand from Thursday, and can also expect to be cross-examined by Peters’ lawyer Brian Henry, a one-time advocate for the former Dirty Politics blogger Whaleoil, aka Cameron Slater.

Slater is now bankrupt, presumably owing Henry a some sort of amount for representing him (unsuccessfully) versus Matt Blomfield.

It had seemed odd that Peters’ lawyer represented Slater, and at the same time Slater promoted NZ First on Whale Oil. There is another connection there, Simon Lusk, who has used Slater and Whale Oil to promote political clients and attack opponents of clients, and is apparently now advising NZ First.

as previously indicated, this whole situation is has a number of bizarre aspects to it.

 

 

Court insists that Peters provide answers

Winston Peters is finding out that he can’t avoid answering questions in a legal proceeding – unlike his frequent fobbing off of media questions.

He has been ordered to pay “modest costs” for failing to adequately answer questions.

Peters was paid a single person rate since 2010 while living in a de facto relationship, until his partner claimed Superannuation in 2017.

Court documents have confirmed that MSD  sent Peters a letter in 2014 asking him to check the details he had supplied. Peters says that he doesn’t recall receiving the letter. He failed to answer whether he had contacted MSD after receiving the letter.

This came out in a High Court hearing last Friday.

Newsroom – Judge to Peters: Answer the questions

Court documents have confirmed New Zealand First leader Winston Peters was sent a letter by officials four years into his seven-year overpayment of national superannuation asking him to check details he had supplied, including that he was ‘single’.

He continued to receive the higher rate of superannuation for ‘single, shared accommodation’ rather than his actual ‘de facto relationship’ for three further years.

In answer to questions by Crown lawyers in a case brought by the Deputy Prime Minister to prove departments and two former ministers breached his privacy by sharing in 2017 information on his overpayment, Peters says he does not recall receiving the letter “but I do not doubt I would have received it”.

Peters had to repay around $18,000 to the ministry after the overpayment came to light months before the 2017 election, when his partner applied for her own superannuation. An unknown whistleblower alerted media but Peters announced the overpayment himself before the news could break.

The question and answer over the March 2014 letter asking him to check what he had told MSD in 2010 is included in a new judgment in the case, dealing with a Crown request for the court to order Peters to give answers.

Chief High Court Justice Geoffrey Venning has now ordered Peters to supply answers by Friday to several questions he had not adequately addressed.

He also ordered Peters to pay “modest” costs over this round of the case.

While the judge did not make Peters give further answers over his filling out and initialling of the original superannuation application from 2010, or specify for how many years before then he had been in his de facto relationship, he did order more information from the MP.

For example, the judge found Peters’ answer to the Crown lawyers’ question of “As at March 18, 2014, were you living with Ms Janet Trotman in a de facto relationship?” was “general in the extreme” and “is to be answered”.

He also had failed to answer the Crown’s question on whether he had contacted MSD after the 2014 letter.

Further, Peters had not answered if he told MSD officials at their office in Ellerslie on July 26, 2017, that his claim on his original superannuation application that he was ‘single’ was incorrect. “The question is to be answered,” the judge said.

Peters had not answered a question over whether at that meeting “you agreed that you were not and had never been, entitled to receive National Superannuation at the rate you had been receiving it (the ‘single, sharing accommodation’) rate.” The Judge said he must now answer.

The NZ First leader had also not answered a direct question of “who disclosed the issue of the overpayment of New Zealand Superannuation to you to the media?” Justice Venning said: “The question requires an answer. If the answer is the plaintiff does not know, then that should be recorded. The question is to be answered.”

This is in preparation for a full hearing due to start on 4 November.

Defendants are:

  • the former Minister of State Services, Paula Bennett
  • the former Minister of Social Development, Anne Tolley
  • the State Services Commissioner, Peter Hughes
  • the Attorney General on behalf of the Ministry of Social Development
  • the chief executive of the Ministry of Social Development, Brendan Boyle.

Peters was embarrassed by the overpayment and repaid it in 2017. His court action is airing it all again, and he is at risk of further embarrassment.

He filed court proceedings against Bennett and Tolley just before beginning coalition negotiations with National following the 2017 election.

Court decisions currently available publicly:

Dunedin student charge with making ‘anti-Muslim slurs”

A student with name suppression appeared in the Dunedin District Court yesterday where he admitted a charge of disorderly behaviour (likely to cause violence).

ODT:  Anti-Muslim slurs day after attack

A Dunedin student has admitted making expletive-laden anti-Muslim slurs just one day after the terrorist attack in Christchurch.

The student admitted a charge of disorderly behaviour (likely to cause violence), which holds a maximum penalty of three months’ imprisonment or a fine of $2000.

Police saw the man on the street in the student sector yelling words to the effect of: “Muslims are not welcome in our country, go home Muslims!”

Other revellers told officers there had been repeated earlier slurs too.

Police, who were patrolling areas around the mosque, were on Castle St, clearing up to 200 people from the road.

At the intersection with Dundas St, the defendant approached their vehicle and shouted his racist message.

“He yelled this repeatedly amongst the crowd of people on the street,” police said.

The teen was firmly told that his comments were “inappropriate and insensitive”.

However, the defendant was unapologetic, stating he was entitled to his opinion and freedom of speech.

He accused officers of trying to intimidate them and accused them of being “right-wing fascists”.

While this discussion was ongoing, three women told police that earlier in the evening the teenager had repeatedly shouted “f*** the Muslims”.

Others on the street began to abuse the defendant for his comments and police arrested him.

What this person was doing was awful and inappropriate. Is arresting him the best way to deal with it? In those circumstances it may have been.

Defence counsel Andrew More told the court his client’s father was at yesterday’s hearing and had been “surprised and disappointed” in his son’s behaviour.

Judge Michael Crosbie called it “no more or less than overt racism”.

It’s kind of weird for me to see this – I have appeared before Judge Crosbie (in the dock once), and Mr More appeared  for private prosecutor Dermot Nottingham at one hearing when applications were made to have the charges dismissed (charges were withdrawn at the next hearing).

He refused to sentence the teenager on the spot because he wanted to know what the repercussions would be with the University of Otago.

A university spokesman said any students who committed criminal offences were dealt with once any court process had concluded.

The student will be sentenced in June. The charge has a maximum penalty of three months’ imprisonment or a fine of $2000.

 

 

European Court says religious feelings and religious peace overrule free speech

The European Court of Human Rights has made a ruling saying, that the right of people to have their religious feelings protected  and the “legitimate aim of preserving religious peace” in Austria.

That this is in a case in which a women was convicted for calling the Prophet Muhammad a pedophile is likely to inflame a contentious and volatile situation in Europe.

Deutsche Welle – Calling Prophet Muhammad a pedophile does not fall within freedom of speech: European court

The ECHR ruled against an Austrian woman who claimed calling the Prophet Muhammad a pedophile was protected by free speech. The applicant claimed she was contributing to public debate.

An Austrian woman’s conviction for calling the Prophet Muhammad a pedophile did not violate her freedom of speech, the European Court of Human Rights ruled Thursday.

The Strasbourg-based ECHR ruled that Austrian courts carefully balanced the applicant’s “right to freedom of expression with the right of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria.”

The woman in 2009 held two seminars entitled “Basic Information on Islam,” during which she likened Muhammad’s marriage to a six-year-old girl, Aisha, to pedophilia.

The court cited the Austrian women stating during the seminar that Muhammad “liked to do it with children” and “… A 56-year-old and a six-year-old? … What do we call it, if it is not pedophilia?”

An Austrian court later convicted the woman of disparaging religion and fined her €480 ($546). Other domestic courts upheld the decision before the case was brought before the ECHR.

So the European Court of Human Rights has not made or imposed this law, they have supported lower courts.

The women had argued that her comments fell within her right of freedom of expression and religious groups must tolerate criticism. She also argued they were intended to contribute to public debate and not designed to defame the Prophet of Islam.

The ECHR recognized that freedom of religion did not exempt people from expecting criticism or denial of their religion.

However, it found that the woman’s comments were not objective, failed to provide historical background and had no intention of promoting public debate.

The applicant’s comments “could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship,” the court said, adding that the statements were not based on facts and were intended to denigrate Islam.

It also found that even in a debate it was not compatible with freedom of expression “to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression.”

As well as growing anti-Islam sentiment and speech this gets into wider issues of free speech that have been raised in New Zealand.

There are risks from people who claim the right to free speech to promote extreme views, to deliberately misrepresent, and to try to inflame and divide.

It is difficult to get a fair balance between the right to free speech and deliberate provocation and harm.

 

Do Greenpeace causes deserve immunity from prosecution?

I don’t think there’s a simple answer to this – protests and degrees of lawbreaking and importance of causes can vary a lot.

But Russel Norman and co-defendant Sara Howell are claiming that if they are convicted for “low level civil disobedience” it would prevent other protests for fear of prosecution.

There are ways to protest without breaking the law, but that’s not part of this story.

Stuff:  Greenpeace activists oil ship protest was just ‘low level disobedience’

Greenpeace executive director Russel Norman and fellow activist Sara Howell appeared in Napier District Court on Friday to apply for a discharge without conviction after admitting a charge of interfering with an oil exploration vessel.

The prosecution

Crown prosecutor Cameron Stuart said the pair caused significant disruption and danger and there was a high level of perseverance and premeditation by the defendants, as evidenced by the fact they acknowledged they rehearsed their moves in advance.

Their actions posed huge risk to them and to the ship’s crew and sensationalised what would have been a peaceful and legal activity”.

“This hearing is not about the morality of the law. It’s not about oil. It’s not about climate change,” Stuart said.

He said the consequences of a conviction would not be out of all proportion to the gravity of the offending. He said the pair had leveraged what they called an “unjust prosecution” as a means of publicising their views.

This raised questions as to how their reputation could be damaged if they were convicted, he said.

The defence

Norman and Howell were represented by Ron Mansfield, said the pair were devoted to fighting climate change and the burning of fossil fuels.

Their views were genuine, well-held, and designed to care for generations to come, Mansfield said.

He said the pair had entered the water at a distance from the vessel that permitted it to avoid them without too much disruption.

He said the danger had been “completely overstated” and the pair could have been removed from the water at any time.

Mansfield said the offending was “low level civil disobedience” and it would be concerning if others undertaking such protests were prevented from doing so because they feared being convicted.

The judge

Judge Arthur Tompkins said that argument “cut both ways” and there may be an argument as to why a conviction was necessary.

Judge Tompkins said other protesters had been convicted in the past and this had not had the “chilling effect” Mansfield suggested.

The verdict – not yet

Judge Tompkins reserved his decision. The pair were remanded until September 24.

The pair faced a maximum penalty of 12 months’ imprisonment, or a fine of up to $50,000 for the offence of interfering with or coming within 500m of an offshore ship involved in oil exploration.

The discussion

Protest is an important part of a democratic country.

Laws are generally to protect safety and freedoms.

The offence of interfering or coming close to a ship involved in exploration was contentious. From NZ Petroleum & Minerals:

People are free to protest on the water as they are on land – provided they do not interfere with structures or vessels involved in lawful petroleum and minerals activities.

While a number of laws cover activities at sea, provisions specific to offshore petroleum and minerals activities were introduced following protests that hindered a seismic survey vessel in 2011.

In May 2013 the Crown Minerals Act 1991, which governs the allocation of the Crown’s petroleum and mineral resources, was amended. New offences were introduced for damaging or interfering with structures or ships being used offshore in prospecting, exploration and mining activities – including incursions into specified Non Interference Zones.

Green MP Gareth Hughes in parliament 13 April 2017:

GARETH HUGHES (Green) to the Minister of Energy and Resources: Does she agree with Dr Russel Norman, who said that section 101B(1)(c) of the Crown Minerals Act 1991, known as the Anadarko Amendment, was “put in place by the Government to protect the interest of big oil and to stifle dissent”?

If the “Anadarko Amendment” is all about protecting people’s safety, why does it apply only to the oil and mining industries, and is this simply a case of one law for us and one law for oil?

Can the Minister confirm that that 2013 amendment, used to charge Dr Norman, was passed under urgency with no consultation and received no New Zealand Bill of Rights Act check, and that polls at the time showed 79 percent of Kiwis wanted to see it withdrawn or sent back to committee?

I remember the opposition to the bill, but I don’t remember the poll, and I can’t find it..

 

 

Weinstein in court on sex crime charges

Harvey Weinstein revelations and accusations triggered the #MeToo movement against sexual assault and harassment, especially involving people in positions of power. Many women have claimed improper behaviour over decades, and Weinstein was the subject of many.

For the first time, Weinstein has been charged and has appeared in court in New York. This may be the tip of a legal iceberg for him.

Reuters: Movie mogul Weinstein handcuffed in court to face sex crime charges

Film mogul Harvey Weinstein appeared in handcuffs in a New York court on Friday to face charges of rape and other sex crimes against two of the scores of women who have accused him of misconduct, ending his reign as a Hollywood kingpin.

Weinstein, the 66-year-old co-founder of the Miramax film studio and the Weinstein Co, intends to plead not guilty to the two counts of rape and one count of a criminal sexual act, his attorney, Benjamin Brafman, told reporters outside the Manhattan courthouse.

Prosecutors did not identify the two women, but said the crimes took place in 2004 and 2013. If convicted on the most serious charges, Weinstein could face between five and 25 years in prison.

Weinstein, who has been accused of sexual misconduct by more than 70 women, with some of the cases dating back decades, has denied having nonconsensual sex with anyone.

The accusations, first reported last year by the New York Times and the New Yorker, gave rise to the #MeToo movement in which hundreds of women have publicly accused powerful men in business, government and entertainment of misconduct.

Weinstein earlier turned himself in at a lower Manhattan police station around 7:25 a.m. EDT (1125 GMT). He carried thick books under his right arm, including what appeared to be biographies of Broadway musical legends Richard Rodgers and Oscar Hammerstein II, and Elia Kazan, the director of such classic Hollywood films as “On the Waterfront.”

About 90 minutes later, Weinstein was led by officers into court in handcuffs, grimacing with his head bowed, his books nowhere in sight, to await arraignment.

“This defendant used his position, money and power to lure young women into situations where he was able to violate them sexually,” prosecutor Joan Illuzzi said at Weinstein’s arraignment in Manhattan Criminal Court.

Judge Kevin McGrath ordered Weinstein released on $1 million cash bail. The defendant surrendered his U.S. passport and agreed to wear a monitoring device that tracks his location, confining him to the states of New York and Connecticut.

An irony on the legal privileges of the wealthy:

Google and other problems with NZ suppression law

Court suppression orders are difficult to deal with in the Internet age.

In the past media like newspapers had court reporters who were aware of what cases were suppressed and complied with suppression orders where appropriate.

But social media has introduced major problems – it is easy for just about anyone to say things (publish) online, but it is impossible for most of us to know what is suppressed, so we don’t know what can’t be legally published.

And another big problem is that major online content providers/publishers are based out of New Zealand, like Google, Facebook and Twitter. And Google says they are not bound by New Zealand law.

NZH: Google ‘thumbs its nose’ at New Zealand courts – lawyer

In high-profile cases covered by the Herald in recent months, Google NZ along with New Zealand’s major media outlets have been served with orders which suppress details and require the removal of content that infringes on privacy or fair trial rights.

However, Google says it’s “not in the business of censoring news” and won’t comply because its search engine is bound by the laws enforced at its home, the Googleplex, in California’s Silicon Valley.

The result means some information suppressed by New Zealand’s courts can be revealed in a Google search.

The problems and Google’s place in New Zealand’s courtrooms was an issue last year during the High Court retrial of double-killer Zarn Tarapata.

An interim take-down order for all content related to Tarapata’s first trial was made to protect his fair trial rights and suppress evidence which was ruled inadmissible.

The Herald and other media organisations opposed the order but were ultimately forced to comply and removed stories about Tarapata’s first trial to avoid being held in contempt of court.

However, despite having an Auckland office, Google NZ said it couldn’t remove details of the stories from its searchable records.

In an affidavit to the court, Google NZ software engineer Joseph Bailey, wrote: “Google New Zealand Limited has no ability to comply with the interim orders.”

He explained that the Google search engine, Google LLC, was a separate legal entity incorporated in the US, meaning New Zealand’s courts and laws held no power over it.

The company also said it would require a “perpetual review” to find the “trillions of webpages currently existing on the web, but also those which are subsequently created” that breached the court orders.

…a Google spokesman said: “We don’t allow these kinds of autocomplete predictions or related searches that violate laws or our own policies and we have removed examples we’ve been made aware.”

He said while Google NZ was bound by New Zealand laws, Google LLC was not.

“Google LLC prefers for news publishers to make their own decisions about whether their content should be available online,” he said.

Even for small publishers it can be a daunting task trying to monitor all content, especially when not knowing what is suppressed by court orders.

Prominent human rights and privacy lawyer Michael Bott said Google was “thumbing its nose” and “expressing a high-degree of arrogance” at court orders, threatening fair trial rights and due process.

Bott accepted however it was a “fine line” between attempting to control Google – like China – and protecting the foundations of a liberal democracy.

“In a liberal democracy we have the rule of law. If Google doesn’t follow take-down orders on the basis that it’s an international company based in California, well that maybe true, but it also ignores the reality of the internet,” he said.

But there’s another significant problem – take down orders, even if you can get one, can take quite a bit of time, and even if successful can be like shutting the stable door well after the story has bolted around the Internet.

I think that most people accept that suppression in some cases is important, especially when protecting the identity of victims of crime, especially children.

But I think that protecting the right to a fair trial via suppression can be virtually unworkable in the Internet age. Courts need to find a different way of dealing with this.

While I understand the argument for protecting rights to a fair trial i think that it needs to be reviewed, taking into account the practicalities of the use of the Internet.

There was recent example of failed suppression in Dunedin recently when a young woman was murdered. The name of the accused was published and circulated in social media before a suppression order was issued by the Court.

I have personal experience with abuse suppression in the courts. It was used to gag me while running an online campaign of harassment and defamation against me online, and if I confronted this online I was threatened with prosecution for breaching suppression, while the group attacking me claimed immunity because they claimed their publications were not in new Zealand, so therefore immune from New Zealand law.

So they used New Zealand law to gag me, while publishing offshore to avoid new Zealand law.

I am still gagged on this. I hope that that will be ending soon, but given the blatant hypocrisy of those involved they may try to keep their legal and personal abuses secret.

The Google (and Facebook et al) problem with suppression is not adequately addressed by New Zealand law and court practices, and neither is the use and abuse of suppression on a smaller and wider scale.

 

Fraught family issues and intimidating judges

Relationship breakups and family arrangements can be fraught with problems. Fathers in particular can be put in difficult positions, often feeling helpless in the legal system, with preference often given to mothers.

Some estranged fathers have been taking their frustrations too far.

NZH: Police protect judges at home from ‘intimidating’ Family Court protesters

Judges are being protected at their family homes by police as angry dads protest outside with placards and megaphones.

A group of fathers, many of whom are disgruntled at losing custody or visitation rights to their children, are gathering outside the homes of Family Court judges in Auckland, say multiple Herald sources.

It is understood the protests, which have largely taken place during weekends over the past few weeks, against about three judges have so far been peaceful with no reports of trespassing or property damage.

So they don’t seem to be breaking the law, but they are unlikely to sway judges with their protests.

Minister of Justice and Courts Andrew Little called the protests “very disturbing” and said there was no excuse for people taking their case to the front door of a judge.

“The reason for that sort of protest is to create some level of intimidation and that is entirely unacceptable.”

It does seem a bit disturbing, but fathers can get desperate in their attempts to maintain contact with their children. This is understandable – and far better than walking away from their parental responsibilities.

And they have succeeded in highlighting a problem faced by many fathers.

Perhaps having the law and the Courts stacked against them is also entirely unacceptable, and drawing attention to this is a valid if perhaps misguided reaction.

A third review into the Family Court had also been ordered by the Government, Little said.

A review panel and expert advisory group would talk to families who had been through the Family Court process, he said, while he had also asked specifically for a “human rights approach” to look at the views of both parents and the children.

More details of the review were expected to be announced in the coming weeks.

Changes to the Family Court were introduced by the former National Government in March 2014, aimed at empowering families to resolve their matters outside court and without lawyers.

The reforms were also intended to help the Family Court focus on those cases which required immediate legal attention, such as those involving family violence.

Little said the review would evaluate whether the reforms had achieved their objectives.

In last month’s Ministry of Justice newsletter, Little also wrote: “Public confidence in the criminal system and family law has been eroded and a managerial approach has failed. We can do better, and we will do better.”

Swadling said there were “significant problems” introduced in 2014 when legal aid was removed and lawyers became unable to represent parties for some court processes.

“If protestors wish to be heard they would be best served by ensuring that they make submissions to the review panel rather than targeting particular individuals, especially judges who are unable, by convention, to defend themselves,” she said.

It is never easy sorting out relationship and family disputes, and it is a real shame that children get caught in the middle of parental legal battles.

While the care of the children should be paramount, both parents should be given a fair go by the legal system. This seems to be one thing where the system is often stacked against men.

Williams v Craig appeal

The appeal in the Jordan Williams v Colin Craig defamation case started today.

RNZ: Colin Craig defamation case back in court

In September last year a jury in the High Court at Auckland found Mr Craig had defamed Mr Williams and awarded Mr Williams damages of $1.27 million.

However earlier this year the court ruled that amount was unreasonably high, constituting a miscarriage of justice.

The highest previous defamation award was $825,000 granted to the Auckland accountant Michael Stiassny in 2008.

In her review of the case in April Justice Katz said the damages awarded were well outside any reasonable range by a significant margin.

So it has gone to appeal.

Jordan Williams’ lawyer, Peter McKnight told the Court of Appeal today that Justice Katz had not misdirected the jury and even if she did, it was not on a level requiring a retrial, as sought by Mr Craig.

“There was a very clear determination by the jury as to liability. It is suggested it would be a serious injustice to Mr Williams if he lost the advantages of those findings,” Mr McKnight said.

Justice Harrison questioned why the case had come before a jury in the first place.

“It should have been judge alone from the outset then we wouldn’t be in this mess.”

He also raised what should happen next if the Court of Appeal decides Justice Katz was correct to set aside the damages awarded against Colin Craig.

“Enough judicial resources have been wasted on it already and it would be most unfortunate to have to go through another trial.”

“What we want to know is do we have jurisdiction to order she has [the power] to settle all outstanding issues.”

A lot of time and court resources have gone into what is largely a political spat.

Stuff:  Jury must have ignored judge’s defamation case directions, court told

 

Williams’ lawyer, Peter McKnight, suggested the Court of Appeal could assess the damages, or another High Court jury could be asked to do so, using the first jury’s findings of facts, and hearing evidence only from Williams and Craig. Craig objected to having the trial judge set damages.

At the appeal hearing, one of the judges, Justice Rhys Harrison, said the court recognised the integrity of the jury’s verdict on Craig’s liability, and its provisional view was that Williams was entitled to that verdict unless the court was persuaded Justice Katz had made a wrong legal ruling on one of Craig’s potential defences.

Not surprisingly Williams wants it over as soon as possible, retaining the jury verdict and having damages set. Id that happens they are going to be less but could still be substantial.

Craig’s lawyer, Stephen Mills, QC, thought the case should be started again. The first jury’s decisions looked as if they had not followed the judge’s directions.

Mills said that, after the jury finished its work at the High Court in Auckland in 2016, Justice Sarah Katz had commented that the jury must have hated Craig to have decided as it did.

Mills said the judge had misdirected the jury about a possible defence, but he also agreed that it appeared the jury did not follow the judge’s directions in any event.

And Craig wants a new trial, giving him a second shot at winning, and at worst having the damages award reduce.

The appeal will continue tomorrow.