Background to the case

On Monday, October 15th 2007, more than 300 police carried out dawn raids on dozens of houses all over Aotearoa / New Zealand. Police claim the raids were in response to “concrete terrorist threats” from indigenous activists. What initially started with 20 defendants is now down to four: Taame, Emily, Rangi and Urs. Their trial will start on 13th February 2012 in Auckland.

The raids were the first ever carried out under the Terrorism Suppression Act (TSA). On the day of the raids, the police arrested 17 people. One person was immediately discharged, and 16 went to prison held on Arms Act charges for up to a month while the police sought to bring additional charges for “participation in a terrorist group” against 12 of the 16. In NZ, the consent of the Solicitor-General is required before charges can be brought under the TSA.

On 8 November 2007, the Solicitor-General refused to give police permission to bring these charges due to lack of evidence. All of the accused were released on bail still facing Arms Act charges.

The following week, the Wellington newspaper The Dominion Post published a front-page article entitled “The Terror Files” in which highly sensational extracts of conversations intercepted by the police were published. These extracts were said to be from the accused, but they were no longer legally admissible against them because the terrorism charge on which the warrant for the interception was granted had failed.

For this article, the newspaper was charged with contempt of court and a trial was held in the Wellington High Court in September 2008. The editor of the newspaper freely admitted breaching court suppression orders against publication. The Solicitor-General said the publication was the “most serious breach of an accused fair trial rights” that he had ever seen. The effect of the article was to deny the defendants any chance of advancing a defence of “lawful, proper and sufficient purpose.” He also said that the police affidavit where the published bits came from was itself full of conversations that were taken out of context to make the threat seem “imminent” and give veracity to the police’s narrative.

In February and April 2008, four more arrests were made. All were charged under the Arms Act along with the other 16, bringing the total number to 20 people in the case.

In September 2008, there was a month-long depositions hearing in the Auckland District Court. Two of the 20 were discharged from the case, 18 people were sent forward to be tried on Arms Act charges.

One month after the depositions hearing and a year after the original arrests, the crown brought an additional charge – “participation in a criminal group” – against five of the accused.

The trial was moved from the District Court to the High Court. The crown and defendants filed numerous “pre-trial” applications. The most significant of these concerned the admissibility of material obtained by police. During this hearing, the High Court ruled that the police’s investigation had been illegal: it involved breaches of human rights and criminal acts, but the material from it was still admissible for a trial. The defence team appealed the admissibility of this material to the Supreme Court.

Ultimately, there was a split outcome with the Supreme Court ruling all of the material illegal, but admissible only against the five people facing a charge of “participation in a criminal group.” This was due to the way the Evidence Act was written which allows the court to conduct a “balancing act” weighing up the alleged offending of the defendants against the actual offending by police. In this case, the balance of the court decided that Arms Act charges were of a less serious nature than the offending of the police in gathering the material, therefore the evidence should not be used against those 13 people who were only facing Arms Act charges. Shortly thereafter, the charges were dropped against the 13.

The “criminal group” charge, however, was deemed more serious thus the illegally obtained material could be used against the five people still accused despite the lack of any additional evidence.

In the meantime, one of the five remaining defendants, Tuhoe Lambert, died from stress-related illness.

One of the other pre-trial applications by the crown sought to deny a jury trial to the defendants, instead petitioning for a trial by judge-alone. The High Court granted their wish and ordered a trial by judge-alone, buying into the argument that the matter was too “long and complex” for a jury to understand. The defendants fought this all the way to the Supreme Court, but when the other 13 defendants were discharged from the case, the crown could not maintain their argument any longer and dropped their application. There will be a jury trial.

There are now four defendants in the Urewera trial. After four and a half-years, the matter has been set down for up to three months in the Auckland High Court.