"Terror" Prosecution, Name Suppression & Open Justice Hit A "Two Trial" Snag
News Analysis By Alastair Thompson
The four members of the Urewera 17 who are now only facing "Arms Act" charges cannot have evidence obtained against them under interception warrants sought by the police in relation to Terrorism Suppression Act (TSA) charges used against them.
It is a general principle of criminal law that evidence obtained under a search warrant issued for one thing cannot be used to pursue charges not listed to obtain the warrant.
This is one of the key reasons why so much of the evidence being presented at bail hearings for the Urewera 17 (held so far in Rotorua, Auckland and Wellington) is being suppressed. That said suppression of evidence presented at bail hearing is not that unusual in any event.
Meanwhile the 12 members of the Urewera 17 who are being pursued by the police for "terror" offences also face Arms Act charges. They may in due course also potentially face "terrorism" charges and the Attorney General (delegated to the Solicitor General) is presently deciding whether to grant leave to the police to proceed on this basis.
Yesterday the crown told lawyers for the 12 "terror" accused that it intends to hold 2 separate trials for each the accused. One on the Arms Act charges. One on the terror charges.
On hearing this the lawyer for one of the accused who had been considering allowing name suppression to be removed sought to have name suppression continued for his client - a 23 year old Swiss national and Wellington musician. (In addition the accused said he needed more time to inform his mother of the charges against him.) Judge Patrick Treston agreed to maintain suppression.
This morning this same legal issue was used to successfully get the name of one of the accused - who is applying for bail today - suppressed on an interim basis.
The lawyers both argued that they need name suppression on the Arms Act charges because if they are found guilty (or plead guilty perhaps?) to Arms Act Charges then this would prejudice their case in front of a jury considering "Terror" Act charges against them.
There is a general principle in criminal law that the record of an accused - the fact they have previously either faced or been convicted of offences - cannot be introduced as evidence against them during a trial.
All this creates numerous problem for both the accused, the crown and the media in relation to the present "Terror" case.
The reasoned political and public response to the controversy to date - and that taken by a majority of the public according to a survey out today - has been to say lets "wait till we see the evidence" before coming to a conclusion.
However unless the two-trial evidence and name suppression problem is solved no real public assessment of the evidence is likely to be possible until the Arms Act charges have been heard.
So while the media want to report the proceedings and the crown say they want them reported - most of the evidence against the accused in relation to the terror charges will need to remain suppressed for the interests of justice.
- Is the genie already out of the bottle? Most of the accused have now been publicly named and if their names are suppressed again in relation to proceedings it is going to look rather odd;
- As a general principle justice ought to be conducted in the open, and especially in a case like this where there are intimations of "big brother" policing.
Further complicating all this is the fact that the evidence being used by the crown at present to argue against bail for the accused on the Arms Charges they presently face consists mainly of evidence obtained against them using the "Terror" interception warrants.
Rightly this evidence is now being heard in open court by those present and the media. By all reports it is fascinating and lurid - and it will doubtless become more so in the re-telling in private conversations.
While public gossip may not be enough to prejudice a trial of the accused immediately the levels of intrigue look likely to be ratcheted ever higher in coming weeks and may eventually become a serious obstacle to justice.