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..



No prosecution over CTV building collapse

The police have decided not to prosecute anyone over the CTV building collapse in the Christchurch earthquake. Not surprisingly this has dismayed many people.

RNZ: CTV decision ‘not trial by expert’

A criminal prosecution against the designers of the CTV building was abandoned even though engineers said it was clear substandard design led to the collapse.

On Thursday, police announced they did not have sufficient evidence for a successful prosecution.

“If I’d taken my heart’s advice, we would have prosecuted. I can’t take my heart’s advice, I have to use my head,” Detective Superintendent Peter Read said.

Documents released by the police show the Crown Solicitor had concluded there was enough evidence to lay charges of negligent manslaughter against designers Alan Reay and David Harding, after a three-year $1.2 million police investigation.

The centrepiece of that investigation was a report by the leading engineering firm BECA that lays out a dozen major deficiencies in the structural design.

“It is our opinion that, had the whole building complied with codes and practices of the day, the building, though damaged, would have had sufficient resilience not to collapse suddenly and in a pancaking fashion,” BECA said.

“Dr Reay’s omission to discharge his obligations in regard to the allocation of appropriate resources to the design were the reason why the design errors were not identified and corrected, and was therefore a substantial and operating cause of the deaths.”

BECA and the two peer reviewers agreed that Dr Reay and Mr Harding did not fulfil their duty to design up to code – a major departure from expected standards, which was a substantial cause of the collapse.

This sounds fairly damning. I wonder how many other buildings around the country are substandard?

But Deputy Solicitor General Brendan Horsley pulled back, saying “this is not trial by expert” and he considered the prospects of a successful prosecution were low, as did the Crown Solicitor.

“A key difficulty for the prosecution would be in proving the CTV building would not have collapsed in the absence of the identified design errors,” he said.

“The expert peer reviewers were cautious about drawing this conclusion.”

An American peer reviewer, who is not named, said it was possible the collapse could have occurred in the absence of design errors due to higher than expected ground motions in combination with the building’s lack of resilience.

The documents explained that the building code at the time did not demand adequately strong columns for resilience in high-risk zones.

However, a New Zealand peer reviewer pointed out other buildings of a similar age and type withstood the quake and that the designers did not take into account the building having to move sideways in a quake.

I don’t think anyone expected such a dangerous earthquake in Christchurch. That other buildings withstood the quake could be due to range of factors. The specific site the CTV building was on may have been particularly vulnerable.

The building’s designer Dr Reay said he was “deeply anguished.”

In a statement, he said: “I have tried to understand why the building characteristics changed after the September 2010 earthquake and then ultimately collapsed.

“It is my strongest hope that from this tragedy every possible lesson is learned.”

I’m sure he is anguished.

Certainly lessons will have been learned, it’s important that they are.

Justice Minister Andrew Little said he wanted to consider introducing a corporate manslaughter charge in the future.

“Everybody involved in this has walked away scot-free. And that’s not right,” he said.

He’s not right – I’m fairly sure that anyone who thinks they could have some degree of responsibility for this tragedy carry a heavy burden.

Would a prosecution be in the public interest? Would it achieve anything useful?

Would Little be happy for politicians to be prosecuted if laws were found to be at fault in a tragedy?

If there was deliberate cutting of safety corners in building design and construction then certainly charges should be a strong possibility. But for human error?

Should designers and builders of buildings found to be substandard and have survived so far because they haven’t been subject to devastating earthquakes be prosecuted?

Should council planners and geologists who didn’t foresee the risks of the Christchurch land that was built on be culpable?

Or should it be ensured that lessons are properly learned and acted on in the future, and leave it at that?


No charges after Todd Barclay re-investigation

The police say they have no new evidence of that justifies re-opening the case against ex-MP Todd Barclay so no charges will be laid.

A number of news reports implied that this decision was because Barclay again refused to talk to the police, but as for anyone else that’s his right and a right that is commonly claimed on legal advice.

It wasn’t the reason for no charges being laid, as with any case police have to find sufficient evidence to justify a prosecution and they say they have not been able to do that. New information given to them and new interviews did not make a viable case.

Stuff:  No charges from Todd Barclay re-investigation – police

Police reopened an investigation into allegations Barclay, the former MP for Clutha-Southland, illegally recorded a staff-member after it emerged in June that former prime minister Bill English had been a key witness in the case.

Police have now closed the case as they have insufficient evidence.

“After a thorough review of all information available to us, including legal advice both internal and from Crown Law, plus consideration of the Solicitor General’s prosecution guidelines, Police has (sic) determined that there is no change to the outcome of the original investigation,” Assistant Commissioner (Investigations) Richard Chambers said.

Police rejected criticisms of the initial investigation and any claim that witnesses had been coerced.

“We are aware that the original investigation has been subject to some criticism,” Chambers said.

“While we recognise the strong interest in this matter, the foundation of any decision to seek warrants or to prosecute is always the evidence available to us.”

“Speculation, hearsay and third party information does not in itself constitute such evidence.”

Neither do concerted attempts to score political hits with no evidence.

Stuff details the whole shemozzle:  How the Todd Barclay story got here


Key: prosecution likely, by-election possible

At Kiwiblog Peterwn has posted his view on the likelihood of a prosecution of John Key – very likely – and of a subsequent by-election in Key’s Helensville electorate – start preparing.

  1. A private prosecution appears very likely, if not from Mr McCready, then from the ‘victim’s’ supporters (eg Unite Union’s lawyer).
  2. There are three possible charges a. assault (6 months), b. male assault female (2 years), c. sexual assault (7 years).
  3. If a MP is convicted of b. or c. his seat is vacated and his seat is filled at a by-election or the party’s next person on the list as appropriate.
  4. Mr McCready has gone for b. Any other private prosecution is likely to go for b. as this has the potential to cause serious political damage.
  5. On past performance a District Court Judge would allow a private prosecution even if the ‘victim’ has not been consulted over this.
  6. Mr McCready cannot be called a vexatious litigant he has succeeded with one private prosecution and has been successful with the other as Crown Law took it over. Even if his attempt fails because he is having to do it via a shell company, a private prosecution by Unite appears likely.
  7. Historically an accused’s spouse could not be called upon to give evidence against the accused – the law has been changed to allow for this. The days of ‘feme covet’ are well and truly over.
  8. With what is currently known I cannot see why any prosecution for b. should not succeed.
  9. An accused in this case an accused has two options – try to get the charge downgraded from b. to a., or if proved try and get a discharge without conviction with respect to b. (I think the chances of this would be good based on other ‘discharge’ cases but don’t count on it). Diversion would be a possibility for a., but I am not so sure about b.
  10. So in conclusion, National would be well advised to start preparing for a Helensville byelection now. Both Winston Peters and Judith Collins will be licking their chops in anticipation.

Peterwn often posts comments that indicate he has a good working knowledge of law.

With a few exceptions the general feeling seems to be that Key’s alleged offending is at the lower level of severity, but as long as the maximum sentence available is two years or more then any conviction would force a resignation from Parliament.

This potential outcome disproportionate to the crime may seem tough but them’s the rules. It may increase the possibility of a discharge without conviction but that would cause a political uproar in some quarters.

Assault can cover a wide range of severity. I think simply touching someone could potentially be ruled assault – including touching someone’s hair apparently.