Police refuse to reveal any details of Dowie text inquiry

A police investigation into an alleged crime committed by a Member of Parliament is newsworthy – especially when the complainant or claimed victim is also an MP.

It’s common with major newsworthy crimes for the police to issue statements and have media conferences, with some outline and details of the investigation being made public.

But with investigations involving politicians they often if not always seem to prefer secrecy. There is no obvious reason for this, apart perhaps from protecting politicians from media mayhem.

David Fisher at NX Herald has used the OIA to seek information about an inquiry: Sarah Dowie and the text message inquiry – what the police won’t tell you

Police headquarters has pulled down the shutters on the investigation into the text message sent from National MP Sarah Dowie’s to Jami-Lee Ross.

Even basic details such as the date on which the complaint was laid and the part of the country where the investigating officer is based have been kept secret by police.

It came months after the end of their extra-marital relationship and included the words: “You deserve to die.”

Ross has previously said he did not make the complaint, which was received through the Crimestoppers freephone number.

Ross, 33, revealed the investigation just before his return to Parliament this year. It was a move which led to Dowie being named as one of the women with whom he had an extra-marital relationship while National MP for Botany.

Ross was obviously aware of the complaint and the means of making the complaint. It hasn’t been revealed whether this was due to contact with the police, or contact with the complainant.

Dowie said she was not aware of the complaint and had bot been contacted by the police.

Police headquarters had refused to make comment on the investigation, leading to the NZ Herald seeking specifics through the Official Information Act.

The sort of information sought was intended to place a context around the police inquiry involving a sitting MP – an unusual occurrence in any Parliamentary term.

Details sought included the date Crimestoppers took the complaint, when it was passed to police and where in the country the investigation had been assigned.

Other details included the rank of the officer leading the investigation, whether he or she worked in a specialised police area and the amount of time spent carrying out the inquiry.

Detective Inspector David Kirby, manager of the National Criminal Investigations Group, said: “The investigation is still ongoing and whilst the investigation is ongoing police is not in a position to go into specific details of the complaint.”

Kirby quoted the section of the Act relied on to refuse providing the information, which says OIA requests can be knocked back if doing otherwise would “prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial”.

Other areas police ruled out were the date on which Ross had been told there was an investigation, whether he had been interviewed – if at all – and whether Cabinet ministers had been told of the inquiry.

if the police had not been in contact with Ross when he revealed the complaint had been made it would indicate that Ross knew via the complainant. He has not said he had no connection to the complaint, just that he had not made the complaint himself.

It has prompted a former senior police officer to ask: “Why would this investigation be treated any differently to any other investigation?”

The blanket withholding of basic information, commonly released by police, was at odds with normal practice, said a former detective, who would not be named.

Do politicians get special treatment from the police? That’s how it appears. If so, why?

A basic tenet of our system is ‘open justice’. This sort of statement is comment in court judgments:

The starting point is the principle of open justice and the right of the media to report on decisions of court as reflected in s 14 of the New Zealand Bill of Rights Act 1990. The principle in favour of open justice should only be departed from in circumstances where the interests of justice so require, and only to the extent necessary to serve those interests.

See Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2]

New Zealand Bill of Rights Act 1990:

Freedom of expression

14. Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

But that is often balanced against the right to a fair trial, and this was given as a reason by the police for secrecy in this case. Claiming a right to a fair trial is a common grounds for seeking name suppression,  but in this case the names of both alleged offender and claimed victim are already known – because the claimed victim Ross revealed it to media.

So Ross chose to go public for political PR purposes, but despite this the police are refusing to give out any information or context, as seems common with inquiries involving politicians.

The difference in this case is a politician claims to be the victim and has already publicised the inquiry. This is an unusual situation.

Politicians are usually subject to more scrutiny than the general public, but not when the police are involved.

The SIS dictated secret trial in Wellington

There was an unusual top secret trial in Wellington last week, where neither a Melbourne woman contesting the cancellation  of her New Zealand passport, nor her lawyer, nor any media, were allowed to attend the hearing.

Andrew Geddis at The Spinoff:  The bizarre case of the NZ court case hidden from public and media scrutiny

Something quite strange is happening at the High Court in Wellington this week. Journalists doing their regular rounds of that place’s pathos, bathos, high drama and human frailty came across a closed courtroom with nothing to say what was going on inside its doors, heightened security outside of them and strange “men in dark suits” lurking in the nearby halls.

Upon asking what was up – journalists are pesky like that – they were told they weren’t allowed to know before quickly being ushered away by court security officers. Which, of course, simply makes everyone that much more curious about what on earth could be going on.

The suspicions of at least some of us were confirmed when Justice Venning, the Chief High Court Judge, released a statement confirming the subject of the case.

The statement:

Geddis:

How do we know this? Because her case already has been before the High Court last year, when she sought to challenge the government’s claim that not only did her appeal have to be held in secret, but that neither she nor her lawyer were allowed to know the reasons why her passport had been cancelled.

Those reasons, said the government, constituted “classified security information”. And under the Passports Act 2002, it’s not just the public and press who can’t be in the courtroom to hear the content of such information. Neither can the person whose passport is cancelled, nor that person’s lawyer.

That does sound bizarrre.

So, here’s what is happening in the High Court in Wellington. A woman is asking to get her passport back after the government took it off her. She is doing so without knowing the evidence the government has for deciding she represents a security risk, without being able to be in the court to watch the case being argued, and without being able to have her own lawyer present to argue for her (although some unnamed “advocates” have been appointed to “assist with issues that have to be dealt with” in her absence).

And none of us can go in and watch the case. Nor can the media go in to watch it on our behalf.

Closed justice, in a country where open justice is supposed to be an important principle.

Matt Nippert at NZH:  Secret Wellington High Court national security hearing lambasted as ‘Kafkaesque’

A Wellington basement courtroom last week became the scene for what a Green MP called “Kafkaesque” and civil liberties advocates described as “security theatre performance”.

MP Golriz Gharaman, the Green Party spokesperson for security and intelligence issues, said the court’s acceptance of classified information in this one-sided fashion was unjust.

“The courts are asked to base their decision on so-called facts, presented by just one side. It’s Kafkaesque – you can’t answer the case against you, because you can’t know the case against you,” she said.

The woman’s passport was cancelled in May 2016, but the protocols to allow secret trials was signed after that, in January 2017.

The Herald can reveal the case concerns a Melbourne-based New Zealander who in May 2016 had her passport cancelled on national security grounds by then-Internal Affairs Minister Peter Dunne.

A copy of the protocol governing passport cases where courts are asked to consider evidence classified as secret… signed last January by then-attorney-general Chris Finlayson and chief justice Sian Elias, prescribes: The extensive use of “tamper-proof envelopes”; requirements for court staff to stand watch over locked cabinets during lunch breaks, and; a ban on the public, media and even those accused by such evidence – or their lawyers – from being present during its presentation.

The eight-page protocol also allows for the New Zealand Security Intelligence Service (SIS) to insist that hearings be relocated from a courtroom to any location or their choosing, or to require judges writing up their decision to only use a computer supplied by the intelligence.

Cate Brett, a spokesperson for the Courts, directed questions about the protocol to the relevant minister.

The processes and procedures adopted this week in Wellington were “required by law” and it was “not appropriate to a judge to comment on how a case is conducted”, she said.

Andrew Little, the minister responsible for the courts and the SIS, issued a statement backing the handling of the case.

“There’s a balance to be struck between the vital principal of open justice and the equally important need for national security to be maintained and I believe the current protocol achieves that balance,” he said.

The protocol was put in place before Little became Minister of Justice, but he believes it strikes the right balance. As leader of the Opposition Little was on the Intelligence and Security Committee sol may have been aware of the protocol when it was signed.

Dunne used powers available to him under the Passport Act to cancel the woman’s travel documents if he believed the passport holder was intending to take part in terrorism or the proliferation of weapons of mass destruction in a country other than New Zealand.

In earlier pre-trail rulings Justice Robert Dobson mulled the possibility of this classified information coming from agencies outside New Zealand.

The self-represented woman, whose identity is suppressed, is seeking a judicial review of Dunne’s decisions, but has faced a legal labyrinth over the protocols which requires her to challenge the Minister’s decision without being able to know why it was made.

In her absence the court has appointed special advocates – allowed to attend the secret closed hearings – to assist the court when considering the classified information.

The case is complex. The first scheduled date for a substantive hearing – in June 2017 – was abandoned and no new date has yet been set. An appeal lodged with the Court of Appeal by the women was then abandoned, and twice during the past year judgements have had to be amended and reissued.

Without a passport the woman must be stuck in Australia, unless they deport her to New Zealand. She presumably won’t be able to travel here without a passport, and wouldn’t be able to return to Australia.

‘Open Justice’ is closed and dangerous

I received an email last night that offers New Zealanders only an online whistle blower service.

Called Open Justice, it is the opposite of open – it is suggested you send information and data to an overseas site run by anonymous people who can’t be contacted unless they choose to respond to secure messages.

They will choose what to post online from what is provided. There is no way of challenging their decisions. This is closed, dangerous and offers no justice.

The website claims the launch email was sent to “selected media, bloggers, known activists, politicians and advocates that may have an interest in this service”, none of whom should have anything to do with entrusting ‘information of public interest’ to unknown people.

New service: anonymous release of public information

From: Felicity Abrone <fabrone@outlook.com>

To: John Key (his parliamentary email address, I will have been BCC’d)

This is a one-off e-mail from a one-off e-mail account

This e-mail is to create awareness of Open Justice
Open Justice is a whistleblower service for New Zealand
The service is secure, anonymous, encrypted and private
There is nothing of note to read as it has just started
Open Justice does not have specific issues\cases in mind
That is up to the public and its users to decide

This is an invitation to read\use Open Justice

Observant people will notice a problem with apostrophes in the email and on the website.

The reason this service exists

This is a “whistleblowing” service.

The emphasis is on security and anonymity for everyone involved. 

Open Justice will assist you in sending  information without your identity ever being exposed.

Information released to this site must meet the public interest test as understood by a reasonable, educated and informed adult.

This is not a service to get back at your ex.

Open Justice will expose criminals, corruption, fraud and gross breaches of public trust.

The aim is to provide the public with the raw data alongside any guiding information.
Open Justice is pro-police, pro-law and order, and pro-authority. It may appear counter intuitive to provide a service that will occasionally frustrate these sectors. However, this is the nature of whistleblowing.

This Service is extended to people in New Zealand only. But to ensure legal safety and separation it is 100% operated from elsewhere. No New Zealand currency pays for the operating costs. No New Zealanders are involved in operating it.  None of the infrastructure is on NZ soil.

Open Justice suspects there will be speculation as to who or what is behind all of this. You will be wrong as Open Justice people have no prior public profile (and hope to keep it that way).

The success of Open Justice is in the public’s hands. If there is no need for this site, it will wither.
Like you, this site does not know where this will end up. If anywhere. It does not have a specific issue in mind.

To launch, an email will be sent to selected media, bloggers, known activists, politicians and advocates that may have an interest in this service.

Open Justice is ready.

Anonymity and no right or ability to challenge anything is about as opposite to ‘open’ justice as you could get.

It reminds me of how certain people who call themselves ‘justice campaigners’ are incompetent on legal matters, and justice to them is trying to fuck over anyone they choose to harass.

A certain  website that itself has a complete disregard for practicing what they preach and operates in a similar way to what Open Justice says they will wrote:

…a complete disregard for the victims, the public expectations surrounding the type of offending and the well settled centuries old principles of open justice in we have in common within the Westminster system.

And:

To deny any citizen the right to witness open justice is a draconian step.

And…

Update: [name] has been advised by a number of our Kiwi readers that the above YouTube video has suddenly had a country block placed on it, that Kiwi’s wishing to view the video are unable to do so. [name] has further been advised that viewers instead receive the message “This content is not available on this country domain due to a legal complaint”.

It seems that the sudden geoblocking of this video is as a result of the New Zealand police’s cosy little relationship with YouTube and Google New Zealand and the New Zealand police’s concern that [name] readers might just get to see one amongst the many problems associated with [redacted].

If there had been a genuine legal complaint it would have taken a lot longer than just two hours for YouTube to process. Whats more Youtube would have pulled the video completely, not simply placed a geoblock on the content.

That then beggars the question, just how far will a corrupt police force go to prevent the public from seeing how justice is administered in [place name]?

In the interests of open justice, transparency and free speech [name] have decided to provide the video in question…

To that site ‘open justice’ means flaunting New Zealand law and natural justice, making numerous false accusations, defaming and harassing – the opposite of ‘justice’.

They are also known for having a problem with apostrophes.

Back to Open Justice:

About

WHO

Most people will come here wanting to know who. Sorry.

AIM

To make public such material that is or has been hidden from the public and where doing so is causing more harm.

PRIVACY

Open Justice will remove any material that is not  meant to be public from its site and keeps it encrypted and secure in a secret location.

EMAIL

To increase security for all involved, no incoming email is accepted.

You can send us a message here. Depending on what you write, you may not be contacted.

Whether it’s run by the same vigilante cowboys or not ( it’s possible it has been set up by someone who is well intentioned but badly misguided) but Open Justice is about as far from ‘open’ and ‘justice’ as you could get.

I expect that just about all media, bloggers, known activists, politicians and advocates will have no interest in using this ‘service’.

Who the hell would entrust whistle blower information with an anonymous ‘overseas’ entity with no right of response and no what of knowing how their information could be used or misused?

But they may have an interest in any content should it appear.

That could be revealing in an unintended way. Sure Open Justice may put up a few topics to try and appear to have various sources, but if there’s any obvious hit jobs then it may not be difficult to guess who is behind them.