John Pagani – a sheltered child

Written By: - Date published: 4:27 pm, September 29th, 2011 - 104 comments
Categories: police - Tags: , , ,

Since I can’t seem to leave a comment on his site to refute John Pagani’s current foolishness on the operation 8 outcomes and ‘evidence’. That is unfortunate because I’ll put it here instead with a wider audience just to please him with a response from a lefty.

He was talking about some of the material released in court documents where the police asserted that those charged threw Molotov cocktails and fired semi-automatic weapons. He asserted

…but it’s worth a mention because of the deafening silence among other left blogs today:

Well I read it and simply didn’t think anything of it. I’ve been aware of much of the evidence for a few years now. Leaving aside the presumption of guilt that Pagani seems to think that a mere accusation by police brings, none of those things are particularly unlawful. My reply that didn’t seem to appear on his site was …

Hey John – as a lefty I think you simply had a rather sheltered and unadventurous upbringing.

I used semi automatics on the farm when I was a kid (and bolt-actions and shotguns). Making molotov cocktails would have been too easy. I used to make explosives for rocketry and for the sheer hell of making things explode. Not to mention building electric detonators to find out how it was done.

I did all that before I went into the army at 18 and started using military grade weapons and explosives. Then I did a science degree where I had even more fun.

When I looked at these reports I thought that they were too unremarkable to get wound up about. I guess you wasted your youth if you think that anything revealed was terrorism.

If they’d started accumulating ammunition stockpiles or large quantities of seed chemicals for explosives or war gases then I’d have been interested.

But feel free to make a even bigger dickhead of yourself.

Now I’m sure that some of those things I have done in my youth were probably unlawful and not particularly legal. But they simply aren’t uncommon amongst our rather adventuous population. They certainly don’t amount to terrorism, they are just simply things that I have done while investigating things.

I’ll freely admit that I have also written computer viruses, keystroke loggers, had unprotected sex, gotten into fights, massively abused people, driven a car in excess of the speed limits, hacked into other peoples systems, compounded poisons and lethal gases, and probably a multitude of other things that could be highly unlawful in the right context.

Now the difference between these being something that I would be convicted in court for and that I would is a basic legal principle that John Pagani appears to have failed to pick up on. He seems to regard the act (actus rea) as being sufficient for him to become a condemner.

But of course the intent of why actions are taken is at least as important in almost all criminal trials. This is the principle of mens rea.

For instance being a programmer means that I wrote viruses to investigate them, loggers are critical to debugging, hacked into peoples systems because they asked me to do so. I was using various weapons to cull pest populations including poisons and gases. Some of my speeding was because I was driving a ambulance in the army. Many were because I’d drunk a bit too much alcohol.

Many of these acts would have been sufficient police to charge me for. I don’t think many of them would have resulted in a conviction, provided John Pagani wasn’t on the bench.

It would appear as well as being a sheltered and unadventuous child, John also fails to have any particular grasp of basic legal principles. For instance where he says..

Molotov cocktails and semi-automatic weapons require lengthy and detailed explanations from the accused (and now acquitted) long before they require explanations from the police.

He is simply wrong and being as much of a dickhead as the police were. Talking about Valerie Morse he says

So does every other apology seeker: Were you part of the molotov throwing, semiautomatic firing group, or not? You cannot purport to be an anti war activist when you are throwing molotov cocktails.

Perhaps John Pagani should actually read some of allegations to find out how much veracity there is. The ODT has a nice clear article accessible that unlike him does not make a presumption of guilt.

For instance the basis that Aaron Pascoe laid the charge against Morse about using molotov cocktails..

He concluded the person in the film and photographs was Ms Morse because that person was wearing clothing the same as Ms Morse was seen wearing when she was observed on her way to Ruatoki.

That was the only basis for the identification because in all the images her face was concealed.

Clothes are really definitive right? Well they must be according to dickheads like John Pagani and Aaron Pascoe who appear to have similar levels of presumptive stupidity.

Photos of a person holding a pistol in various military type poses were said to be of Ms Morse.

Two pistols later seized by police were found to be unable to discharge a shot, although an attempt to modify one appeared to have been made.

Now the point is that making Molotov cocktails, using the same, and holding a disabled weapon are in themselves not illegal. It is where and why you use them that is important. Furthermore as far as I can see there was no unequivocal evidence in the accusations by the police Valerie Morse even did these non-illegal acts.

Like much of the operation 8, the accusations appear to be based largely on the interpretation and judgement of Aaron Pascoe. This is the person who appears to have authorized the unlawful video surveillance thinking that it was ‘legal’, made the applications for the search warrants on the dubious grounds of a anti-terrorism act that the solicitor general subsequently said did not apply. Eventually he has wound up, out of the hundreds of people detained and eighteen charged, with just four remaining to go before court. Quite simply to me it looks like his paranoia has wasted a awful lot of the states money and time, not to mention that of those detained, arrested and charged.

There are months of prison time, massive legal expenses to repay, and significant amounts of time hanging around in court by the discharged defendants that can (and should) be charged to Aaron Pascoe. Even the remaining defendants in my opinion are unlikely to be convicted on more than a actus rea offsense. The supreme court merely looked at the seriousness of the charges against those four. Looking at what is known of the evidence against them, I find it unlikely that they will be convicted in front of a judge and/or jury.

In my opinion, John Pagani looks like a dickhead. Perhaps he should actually go and investigate the details and legalities before he implicitly leaps to the defense of someone like Aaron Pascoe?

Update: from an e-mail I just received, it looks like John read my comment and deleted it. It appears he mostly disliked being called a dickhead. But he did seem to ignore the substance of my comment. Who’d have thought a longtime political could get wound up about being called a name?

104 comments on “John Pagani – a sheltered child”

  1. What John also omits to mention is that there are still 4 people facing trial for the most serious of charges and there has been no huge uproar on this.  I think the balance is not bad, the breaches of the law by the Police were too egregious to allow the evidence against them to be admitted but for those facing the most serious charges the discretion was exercised to allow the evidence in by the Court.

    John should concentrate on the real damage here, the usurping of the rule of law by the police and the denigrating of our judiciary by the Attorney General for political reasons. 

    • lprent 1.1

      And the police are able to have the unlawfully obtained video evidence used against them because of the relative seriousness of the charges. Hardly seems like a real constraint on the police in using such techniques does it?

      I suspect that the police will still have some quite severe problems actually getting a severe conviction against the remaining victims defendants because there doesn’t appear to me to be a good mens rea case on the conspiracy charges. They may get some kind of convictions over the weapons – but the sentences aren’t likely to be high.

      Just looks like a immortal fuckup by the police at the paranoid Otahuhu building. For some reason John Pagani seems to think I’d think differently if they were right wing? Obviously doesn’t know me too well.

      What I object to is the police being stupid and abusing the legal system over activists. If there had been anything actually substantive then I’d have supportive. But it was clear just from very early on that the police were simply running a fishing exercise. The courts appear to have been used as a way to extract punishment before conviction because some idiots in the police seem to think that activism is inherently dangerous. All of the evidence I see is that the stupid suppression of activism by police certainly is.

      Findlayson is playing politics with the courts as a patsy. Based on the reactions across the political spectrum, I suspect that it is going to blow back on him.

      • insider 1.1.1

        the mistake that’s being made is that you can’t just look at this video information in isolation and assume it is conclusive of anything – and for the sake of fairness I accept that that goes both ways; for or against. There is other stuff that is suppressed, some of it floating around the internet and reported in the media, which help build a bigger picture and may have led to a conviction when considered together.

        But as Pagani says, we are not talking about criminal standard of evidence/proof. He contrasts the actions of a self proclaimed campaigner for peace with some of her words, and says they are not compatible and so neither is the left wing support for her. Pagani judges her much in the same way that John Key gets regularly tested and judged on this site, where frequently tenuous connections are made with far less evidence to reach conclusive judgments of corruption, or lies or bad faith or whatever the meme du jour is.

        • lprent 1.1.1.1

          …judges her much in the same way that John Key gets regularly tested and judged on this site, where frequently tenuous connections are made with far less evidence to reach conclusive judgments of corruption, or lies or bad faith or whatever the meme du jour is.

          We do that under the legal structure that holds politicians to a different standard because they seek public office (Lange vs Atkinson).

          Where and when exactly did Valerie Morse or any of the others seek public office? Since you are arguing that they should be treated the same way?

          We tend to curb ourselves when it comes to private citizens and I and other moderators have removed or edited quite a number of comments and posts over the years that have walked over the line between what is permissible and what is not under the legal structures. There is a grey area that hasn’t been particularly tested by people who are in the public eye that we tend to err on the side of caution for.

          However when someone like John Pagani wants to walk into that grey area with their opinion, then I feel no particular constraint in giving my own. I’m sure that Pagani appreciates it as much as Valerie Morse would have hearing his.

          • insider 1.1.1.1.1

            She didn’t seek public office but has actively sought and gained a public profile and that makes her open to public comment from you, me, pagani and anyone else with a view, just like, say, Michael Fay in the neighboring post. She moved the line much closer to herself and pagani hasn’t even begun to approach it let alone cross it.

            “We tend to curb ourselves when it comes to private citizens”

            Like you do/did with David Farrar, Peter shirtcliffe, Alex fogerty, Conor English, don Nicholson , alisdair Thompson… Shall I go on? They are as much private citizens as morse.

            • lprent 1.1.1.1.1.1

              Doesn’t work like that.

              You also have a public profile on here that you have actively sought. However that does not mean I can intrude on to your private life outside of what you choose to share and is available in the public domain. Sure you can express an opinion, but inventing ‘facts’ and obligations (ie lying) as some of you have been trying to do is something that is actionable if the recipient is prepared to exert the effort.

              Whereas a politician does not have that protection.

              • insider

                Sorry I’m not following your logic. You seem to be talking about legalisms and actioning, and I’m talking about the fairness/reasonableness of bloggers commenting on public issues and public figures – be they politicians, activists or business figures.

                • lprent

                  Not really, it winds up as being pretty much the same thing. Just the ranges are far wider for politicians because of the questions of public interest.

                  The legalisms codify those limits, but what is deemed to be reasonable by most bloggers (apart from some of the nutters) is incredibly close to what the law deems is reasonable as well.

                  But the key point is that outside of politicians, merely having a public profile does not mean that a person also gives up their rights to privacy and people making untruthful facts up about them.

                  • insider

                    Re the key point – sure, but Where has her or anyone’s privacy been invaded by pagani or what untruths has he made up?

                    Note – I think celebs also have a lesser level of privacy than ordinary peeps

      • King Kong 1.1.2

        With all the slipped in references to how brilliant and bad ass the author is I really thought I was reading Whaleoil.

        You are one very cool guy lprent.

        • DavidW 1.1.2.1

          Agree King Kong. In fact it makes you wonder what all the fuss was about David Garretts misdemeanour was. Certainly Mr Prent appears to have been a greater threat to society (if only through a possible accident) than someone who made a botch of attempting to recreate a scene from a novel to see if it could be done. HEH actually predated mythbusters there but remains vilified 20 years on.
          No pleasing some folks it seems

  2. ianmac 2

    I wonder why the information re Ms Morse is in the news just now?

    I-Predict says “A new stock this week predicts that the Video Camera Surveillance (Temporary Measures) Bill has an 84% chance of being given Royal assent before the General Election.”
    So one Party or another will give in. ” – Red Alert 2nd to last para.

    • lprent 2.1

      I suspect that is why the information was pushed now by the police

      I think that Morse is in an invidious position legally. While the charges have been dropped because the police are unable to use the unlawfully obtained photos and video that they got on private land, they could be revived just about as easily as they were dropped. She will probably also be looking at the legal case for restitution via civil court. My guess is that her lawyers have rather firmly told her not to comment.

      So of course that leaves the gate wide open for dickheads to convict her without bothering to go through the process of doing it legally.

      The politicians pushing this absurd bill don’t care. As far as Findlayson is concerned she will just be collateral damage of the attempt to pressure Act and Labour MP’s.

      • insider 2.1.1

        I don’t think the info has been pushed by police. The media have been following it and suppressions have lapsed.

        Note The law change enshrines the SC judgement excluding the videos for this group. the case was dropped because there wasn’t enough without the videos. You’d expect would need to be significant new evidence to revive the case – could happen I suppose; what if one of the former accused became a crown witness?

        • lprent 2.1.1.1

          I don’t think the info has been pushed by police.

          Possibly. Given the incestuous nature between some of the police and media, I’m always a bit suspicious.

          You’d expect would need to be significant new evidence to revive the case..

          You mean like a ex-defendant saying that that they’d was been in the general area of the mountains on the day in question? Or even that they had not and being unable to accurately account for their whereabouts on the day more than 4 years ago. Some evidence has been taken off the table by the courts and the government has not decided to directly override the courts judgement. But there is little point in someone who has had four years in court and quite some time in prison taking the risk.

          ...one of the former accused became a crown witness?

          Bearing in mind that the defendants have managed to resist the police in both taking it to court rather than seeking alternatives for so long, I’d mainly get interested in what pressure the police exerted. In fact I suspect even the judges would be pretty damn fascinated by that.

  3. John Pagani’s “Call of duty” post is as much a display of his lack of a proper New Zealand childhood as it is showing his lack of knowledge concerning legal matters. It also shows just how unhinged he is when he writes:

    I’ve filed a longer piece elsewhere on this, but it’s worth a mention because of the deafening silence among other left blogs today.

    He published that a few hours after the NZ Herald article was released, and obviously knew he was being disingenuous about the response from so called left blogs. It’s been one day since the article in question was published FFS!

    It will be interesting if he bothers to justify his obviously flawed thinking.

  4. Colonial Viper 4

    Pagani is yet another reason why the ‘Left’ (if you can even describe him as such) is out of touch with the working many in this country.

    • higherstandard 4.1

      I’ll think you’ll find that Pagani is far closer to the pulse of the ‘working many in this country’ than those that are leaping to the defense of the likes of Valerie Morse and content themselves with vilifying the police.

      • Colonial Viper 4.1.1

        Maybe. But it doesn’t escape peoples attention that police officers and non-sworn staff are frequently charged with abuse and misuse of powers and information systems. Its in no way as bad as many other countries – but it also indicates that we don’t want to give up the checks and balances or the judicial oversight.

      • Draco T Bastard 4.1.2

        I doubt it – he was, after all, the “advisor” telling Labour to be more like NAct.

  5. The Gormless Fool formerly known as Oleolebiscuitbarrell 5

    The left hate the right. But what they hate even more than that, is the left.

    • higherstandard 5.1

      Nowt as odd as folks.

    • lprent 5.2

      Not really. I mainly get irritated by two things – willful stupidity and unfairness. John Pagani in my opinion did both in that post. As you’re aware I’m rather direct in expressing my opinions about these traits when someone tips over the edge enough to actually irritate me. Happens all of the time in comments. Sometimes it spills through to posts.

      I really couldn’t care less what peoples political affiliation is when I write this style of post. I’ve written such posts about Chris Carter, David Farrar, Marianne Ny, and many others. I’m not really that interested in their politics or reasons, I usually confine myself largely to their actions and my opinions on those.

    • Draco T Bastard 5.3

      What you’re saying is that the political-right are far more conformist than the political-left which we already knew.

  6. Rich 6

    Actually, one can build substantial weapons caches quite legally and undetectably in NZ.

    All you need to do is not have a criminal record and find a couple of other similar people to vouch for your character. Then you can get a firearms license and start buying (class A) guns. Use a bunch of trademe accounts and tour the country shopping at a range of gun shops so you don’t seem to be buying up that large (once every few months and they’ll just see you as a good customer).

    With enough cash, you could easily buy 10 or more weapons a month – in a couple of years you’ll have enough for a platoon at the very least. Bury the weapons suitably packaged in forests and other remote places.

    If checked on by the cops, you’ve sold the guns on to license holders. You don’t need to keep a record of sales, and private individuals selling you guns don’t need to keep a record that they sold it to you.

    • Oleolebiscuitbarrell 6.1

      Rich, you are kind of scary.

    • insider 6.2

      Can you do it legally though? Is there a limit and the number you can own, store and trade?

    • Draco T Bastard 6.3

      I recall a news item many years ago about the end of a civil war somewhere. The non-government forces were making their own guns and ammunition. If you want to stockpile weapons – you don’t go around buying guns.

      At the end of the day a gun is a simple device and you don’t need the latest fashion for it to work. In fact, a major reason why the AK 47 is still in use is because of it’s simplicity – it’s far more reliable than pretty much any other assault rifle in the world and it’s field serviceable.

  7. I think Pagani is way off with this post and I have thought about how to express it.  The problem is that Judges and pointy head law lecturers and obsessive defence lawyers are utterly appalled by this but the great swinging voter is scratching his head wondering what the fuss is because after all criminals are being caught.

    So imagine if your 18 year old son smokes the odd bit of dak and one day went to a tinny house.  He was filmed by a camera that was imposed without authority in the upstairs bedroom of a 13 year old girl who lived in the house.  The camera not only captured who came  to and from the house but also filmed her getting undressed for bed.

    The Police retrieve the camera and decide to charge everyone identified with cannabis dealing.  They do this hoping someone will fold and give evidence for them as part of a deal.

    You engage a pay until it hurts lawyer and they tell you that there was no legal authority for the camera and so you challenge the video evidence.  Your son does not want to give evidence because it was a Head Hunter controlled tinnie house and he fears what would happen if he gave evidence of what occurred in the tinnie house.

    Your lawyer says it is in the bag because there has never been legal authority to trespass and plant video cameras and you get ready for trial.

    Two days before the trial you find out that the rules have changed.  Although legally the evidence is not admissible Finlayson has decided that the Police should be allowed to present it, even though they knew when they planted the camera the evidence would not be able to get in.

    Can you really say that this is ok?

    • Oleolebiscuitbarrell 7.1

      The difference is that smoking dak is a victimless crime. Throwing molotov cocktails at people tends to burn bits off their bodies.

      • lprent 7.1.1

        And you have proof that this either happened or was intended to happen? Amazing considering the police have been incapable of doing it, even unlawfully.

        • Oleolebiscuitbarrell 7.1.1.1

          You and this pyromaniac librarian are going to have to get your stories straight, lprent.

          Is the position now that she was not throwing molotov cocktails? Because she is not denying that she was. Her only “defence” so far has been that she is not obliged to offer a defence.

          Or is the position that blowing things up is just a the sort of diversionary fun radical bibliophiles go in for in secluded woodland hideouts. All innocent fun.

          The problem you and she have is that neither of these explanations put this woman in a very good light. Either she was not blowing things up but cannot be bothered to say she wasn’t, or she likes blowing things up for fun.

          Either way, she sounds kind of scary.

          I do not think this a particularly radical position, given that people who have been concerned about these activities to date have included not just me (and I accept I count for nothing, given that I am just a wanker) but Helen Clark, Bomber Bradbury and John Pagani among other more sensible people.

          • lprent 7.1.1.1.1

            Umm I don’t speak for her. I always speak for myself.

            But the point is that it is up to the police to make a case against her and prove it in court. Even with the unlawful evidence they have failed to do so. The material that just got released cannot prove that she is the person doing either the molotov cocktail or handling a disabled pistol. Nor have they even proved that she was there. Even if she was there appears to be no evidence to prove a criminal intent.

            In fact I’d say that the police do not appear to have had a case if it went to court.

            I’d say that I was far far more scary when I was a teenage than she is now. In terms of skills I am even more dangerous now. But I could be with a frigging baseball bat if I had criminal intent.

            Essentially I suggest you have a look at the actual law rather making it up as you find it convenient. The police should do the same.

      • Colonial Viper 7.1.2

        How about throwing molotov cocktails into a pit oven? Who gets hurt, the pit oven?

      • mickysavage 7.1.3

        Ummm ….

        The law does not differentiate between the offenses, although it differentiates between the seriousness of the offences.  Cultivating dak can mean 7 years in jail,  possession of a molotov cocktail can mean 4 years in jail.  So smoking dak may be a victimless crime but it is more likely to have the video evidence admitted …

        • lprent 7.1.3.1

          What is the actual offense for a molotov cocktail? Is it explicit? Or just a generic weapons charge…

          I’ve always wondered bearing in mind how many ways it is possible to make one.

          Updated: probably the explosives stuff in the Crimes act?

        • Armchair Critic 7.1.3.2

          Serious – if I reduce the rate of evaporation from my petrol can by jamming a rag into it, I can go to jail for four years??

          • Lanthanide 7.1.3.2.1

            A standard plastic petrol tank probably wouldn’t make too good a molotov cocktail because the container wouldn’t shatter when it hit a surface.

            Compared to say a glass bottle with petrol and a rag in it, I think you’d need a bit more context to be able to call a petrol can + rag a molotov cocktail.

    • insider 7.2

      Problem with your lawyer’s advice is the court’s ability to accept evidence even if gained improperly, so the law change may not have made a difference

      • mickysavage 7.2.1

        Ummmm ….

        Before the law change there was a chance and a Judge had to decide. After the law change the Judge had no say and the police can do what they like.

        Is that right?

        • insider 7.2.1.1

          Not sure but it sounds right. . Note that it wouldn’t be the first time that someone has had a line of defense gazumped by a change in the law – judges do it all the time in their rulings, particularly higher courts ruling on appeals.

          • Colonial Viper 7.2.1.1.1

            insider is being smart, trying to compare actions by the judiciary affecting a criminal case, and actions by the executive branch affecting a criminal case.

            Here’s a tip – the first one is expected as part of the normal activity of the justice system. The second is well down the slippery slope to becoming a banana republic.

            • insider 7.2.1.1.1.1

              How are they materially different in effect?

              Also, Court decisions can retroactively make illegal something that was legal by reinterpreting the law and not following precedent, which tends not to be done by statute. That is the normal working of justice yet appears on the face of it highly sinister in the way you describe.

              Note any effect on the case will be the result of the legislative branch not the executive

              • Hi Insider,

                The ‘material difference’ is not at the level of particular criminal prosecutions, judicial precedent setting and outcomes. It’s in the effect it has on the country in general – and into the future – in relation to how laws are set, what citizens start to expect might happen to them as a consequence of this practice, etc., etc..

                In brief, the ‘material difference’ is very marked since, in the second instance (a retrospective legislative change), it is much more consequential for the whole operation of our supposed democracy. 

                I’m with Rodney on this one – it was a very good speech. 

                • insider

                  Fair argument but I’d counter that this is not the first time retro legislation has been used, so perhaps not the impact on the national psyche you claim. We’ve survived previous events reasonably well. Maybe we’ve even learnt from them.

                  • Draco T Bastard

                    First time it’s been used to change the outcome of trials already in progress under an accepted ruling.

                    Also, Court decisions can retroactively make illegal something that was legal by reinterpreting the law and not following precedent…

                    Actually, I’m pretty sure that they can’t but if you’d like to put forward an example to prove your point…

                    • insider

                      I don’t think you are right about it being the first time. There are a list of retro laws some of which apparantly did just that here http://www.justice.govt.nz/publications/global-publications/r/report-of-the-legislation-advisory-committee/publication#6.0

                      most of them are more focused on civil cases but there is one about changing the evidence an IRD inspector can give. And of course labour changed the law and stopped the darnton v Clark pledge card case.

                      Re the latter point, dean knight has an article on his site which cites a change in the court’s view of marital rape – so what was considered legal before was criminalized by the court after the event, effectively retroactively changing the law. It’s here http://www.laws179.co.nz/2006/08/retrospective-or-retroactive.html

                    • Colonial Viper

                      insider trying to compare these low level paperwork cases against a bunch of (nearly) capital crimes which two governments have been trying to PR align with global terrorism.

                      Keep trying mate.

                    • insider

                      You’re doing well tonight cv – near capital crimes, show trials. What’s next? blood in the streets? Stormtroopers? Police state? Ad astra CV ad astra.

                    • Draco T Bastard

                      Re the latter point, dean knight has an article on his site which cites a change in the court’s view of marital rape…

                      Got the link? The one you provide doesn’t go to anything about spousal rape but about his opinion on the Darnton v Clark pledge card case. I did find this though:

                      In 1991 the House of Lords, the highest national court in the UK, sat in judgement on an appeal lodged in the case of R v R [1992] 1 AC 599. At the heart of the case rested the question of whether one of the parties involved could have have committed rape on the other party (the spouse) given that the two parties were married to each other. The judges found that what had been perceived as case law regarding marital rape had been made on the basis of Hale’s opinion, and that the opinion in question wasn’t precedence (as it wasn’t the finding of legal fact within a case), then common law granted no exemption for marital rape within the provisions of the statute governing the crime of rape.

                      So it appears that judges didn’t change the law retrospectively by re-interpretation but had, as a matter of fact, misinterpreted the law for two bloody centuries on some morons opinion. NZ actually changed the law in 1985 removing the exemption for spousal rape but I can’t find anything that shows that was a result of the actions of judges.

                    • insider

                      It’s in the Linked article on duynhoven by Waldron. Sorry you’ll have to trawl through it like I did -it is interesting if you can penetrate the longwinded style. It may be the same case you found. He concluded it was a retro change in effect.

              • Colonial Viper

                fuck you’re an idiot.

                The effect may not be material in the one instance but it opens the door to the executive branch controlling and overruling the judiciary, which is on the same road to becoming a third world banana republic. Show trials and political prosecutions would be just the start.

                Fuck its like being in primary school.

                • insider

                  Speaking of school You need to go back to learn about the difference between the three branches – if you can’t get the basic right that statute laws are made by parliament not the executive then you are not going to be credible in any discussion ( and the video bill is a great example because no-one knows as yet whether the executive can muster a parliamentary majority to make it’s plans law).

                  But I was talking in general. How does retrospective law change by parliament of statute differ from the same being done by judge? How is this opening that mythical door wHen retro changes have not done it before? Plenty of other countries successfully navigate courts undermining parliament and vice versa.

                  And show trials? Get over yourself .

                  • Colonial Viper

                    And show trials? Get over yourself .

                    Ahem. The whole Urewera trial has been a show trial on a grand stage set by the ‘war on global terrorism’.

                    Shows how shit and narrow your perspective is.

                    And yes, I was confused by the way that the US defines its Federal Govt structure, it does not apply to NZ per se, but the idea that Parliament should not undermine the independence of the judiciary must be taken seriously (more seriously than you are taking it).

                    Plenty of other countries successfully navigate courts undermining parliament and vice versa.

                    And plenty do it at great cost to their democracy. Including in recent history Russia, Phillipines, Argentina, Fiji, Malaysia, Singapore, several of the former USSR and central asian states…

                    • insider

                      The structure does apply in nz – read the Constitution Act 2006. It’s the basic Westminster structure. My perspective may be narrow but at least it is informed by fact.

                      No parliament should not undermine the courts and vice versa through the actions of activist judges, but they do – it’s part of the natural tension of checks and balances. Sometimes that is healthy, sometimes not. But changing the law in response to court judgments is not necessarily undermining the courts- it could be parliament saying the law as written and interpreted wasn’t quite as intended or exposure of gaps in law. Higher courts as well reinterpret what lower courts have said, and that is not undermining either.

                    • Colonial Viper

                      But changing the law in response to court judgments is not necessarily undermining the courts- it could be parliament saying the law as written and interpreted wasn’t quite as intended or exposure of gaps in law. Higher courts as well reinterpret what lower courts have said, and that is not undermining either.

                      None of your clever learned examples apply in the Ureweras case, thanks.

                      Knee jerk degradation down a banana republic show trial slippery slope where a National Government tries, at top speed and under urgency, to undo a higher court decision as broadly as possible, does though.

                      Love how you Tories love executive authoritarianism while embracing the guise of democratic ‘tension’.

                    • insider

                      Why do they not apply?

                  • Insider 

                    How does retrospective law change by parliament of statute differ from the same being done by judge?

                    You are running a Nat line here.  Let’s be really clear here.  The decision in Hamed did not overturn existing law.  Just to be clear I will say that again, the decision in Hamed did not overturn existing law.  And to be even clearer the Police knew that the law was not settled and should not have ben surprised by the decision.

                    Exhibit 1:  The Law Commission report in 2007 where the Government was warned that the law was unclear.

                    Exhibit 2:  The Search and Surveillance Bill introduced in 2009 and designed to permit covert video warrants.  If the law was settled why the need for this law?

                    Exhibit 3:  Chief Justice Sian Elias’ opinion.

                    “I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used. … [i]n circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”

                    Exhibit 4 Justice Tipping’s opinion.

                    “In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken.”

                    Exhibit 5:  Justice Blanchard’s opinion.

                    “ … [e]ven taking the view most favourable to them, the police seem to have been prepared over and over to run the risk of acting in breach of the law. They did not obtain legal advice and should have done so … [t]he police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable.” 

                    Still want to argue the law was settled?  This is important because if the law is not settled it is a constitutional affront to make the change retrospective. 

                    • insider

                      micky, you are arguing something I;ve never said – I’ve not mentioned whether the law was settled. But if the police knew there was no lawful authority, how can you say the law was not settled. The SC quotes you give seem to show they thought the exact opposite. Is it a constitutional affront for a judge to go against precedent too? Because they do, and that in effect can amount to a retroactive change.

                      Note I’d say that a retroactive change of settled law is far more serious than of unsettled law because in the former there is an expectation of certainty of action, but in the latter more of a chance of people knowingly acting in a grey area and knowing the risks that carries – tax law is probably a good example as recently shown in many NZ structured finance cases.

                    • if the police knew there was no lawful authority, how can you say the law was not settled

                      Who cares?  The main issue for me is that the change is being made retrospective.  This is NEVER done unless there has been a change to what was thought to be settled law.  This is the justification that Finlayson is raising.   

                      My “exhibits” above were just a selection to show that Finlayson’s justification is, um, how do I say this, not correct.

                      You seem to be suggesting that the retrospectively of the change is somehow normal.  I am trying to say that it is anything but. 

                    • insider

                      It’s far from normal but I’m saying it isn’t unprecedented. Some have tried to present it as such and the end of democracy in NZ. Yet there were two examples under Helen Clark alone, arguably more egregious as they involved the make up of Parliament and the election of our representatives. I’m saying the hysteria is not backed up by history.

                    • Neither involved criminal trials or the freedoms of citizens.  One was to give Duynhoven citizenship and from memory was supported by everyone.  The other was not required and there is a great deal of bullshit about it.  Feel free to provide a detailed analysis but read Dean Knight’s blog before doing so.

      • lprent 7.2.2

        The question was the seriousness of the charges based on the actual acts and intent. Looks like the police only had serious charges against four people according to the supreme court…

        Who’d have figured that from the police said at the time of the arrests? Huh?

  8. The Voice of Reason 8

    My difficulty with the immature behaviour of these saddoes is that it has cost us a freedom. I don’t care who wore what clothing or even what their names are. The went into the bush to learn how to kill their political opponents. That’s the real problem, not whether they cops buggered up the evidence. For example, this:
     
    “Mr Bailey’s computer was seized and the Crown was going to use chatroom logs that showed him talking to co-accused Whiri Kemara referring to “modified things that could easily kill someone if you chuck it in their windows”.”
     
    That’s sick.
     
    The last time this kind of thought process made the news was earlier this year, on an island in Norway.

    • lprent 8.1

      Man, it is a bit of stretch from listening to people to bullshit or play with ideas – to establishing criminal intent. Quite simply you have to show that there was a guilty intent…

      I’m a really peaceful person, but thinking through some of the idea trading and thinking I do…

      You should read some of the reading, mail and chats I have had at various times looking about computer security holes – you’d be convinced from that that I was intent on breaking the net. Of course it is part of my profession.

      Or when I was still playing online games the chat logs and phone conversations were all about assorted mayhem.

      There are a few online people who I used to trade scenario ideas with – they were authors picking my skill sets. Those ideas were frequently playing around with ideas on mayhem.

      My occassional talks with activists is often discussing legal and political bounds. In other words what is feasible to do legally. For that matter you see that around here – in public.

      When I’m around ex-military, the talks frequently used to go to mayhem.

      Not to mention that I read a lot of science fiction and various types of ‘action’ fiction.

      Etc… But playing with ideas does not constitute criminal intent – it doesn’t matter if it is vaulting buses or talking about how to make explosives. You have to show that there was an actual intent to act on the ideas at the barest minimum.

      Even if the police had been able to get all of their evidence in – there appears to have been very little evidence of any criminal intent. Not unless you viewed the police role as being thought police…

    • Adele 8.2

      VOR

      I believe amongst the many conversations that were taped there were threats made to the life of George Bush. They were going to assassinate him by catapulting a bus onto his head.

      Now a wise person, would take this conversation, ruminate on it for .00000345 of a second, and then conclude that these were men behaving as boys.

      The NZ Police, on the other hand, still maintain, after four years, that a credible threat was made. Doh!

      The second greatest threat to freedom is stupidity, yet, there can be no freedom without the freedom to be stupid.

  9. Well said Lynn.
    If ever there was a reason for Labour’s disasterously inept media management and utterly ineffectual strategy, Pagani is it. Listening to his advice has been the kiss of death for a Goff led Labour IMO. He’s also ensured a lot of talent activists have precisely no inclination to help Labour win this election.

    • The Voice of Reason 9.1

      Um, didn’t he stop working for Goff, like, ages ago?

      • Colonial Viper 9.1.1

        Yes, roughly 5 minutes ago in the electoral cycle. Unfortunately, it takes longer than that to turn the big ship of public opinion around.

      • Anne 9.1.2

        It was about 18 mths. ago. Trouble is, the damage was done. I recall being told that the Labour caucus was advised to “keep their heads down and not to cross swords with the govt. for the first 12 to 18 months.” What! Isn’t it the role of the opposition parties to probe and, where deemed appropriate, to criticise? Don’t know whether that advice came from Pagani or someone else.

        • Draco T Bastard 9.1.2.1

          Didn’t think it was that long ago. Earliest I can find mention of him being an ex-Labour advisor is April of course that does mean that he left earlier but I can’t find when that actually was. That advise sounds like Pagani – he is, after all, the one that said Labour needed to be more like National.

  10. Macro 10

    “Hands up those who have not set fire to a public building! I know I have.”
    Monty Python

  11. Ed 11

    I saw Pagani’s column as saying that the police raids were not an unprovoked attack on grandmothers and small children  – there was at least a smidgeon of evidence to trigger a little paranioa. I doubt most people thought differently, but some of the rhetoric was getting fairly close. 
    The reality is that the evidence that was collected (whether legally or illegally) has not been presented to a jury. The extent of the dealy would normally have resulted in all charges being dropped – that they haven;t suggests there is something substantive somewhere, as it must have been reviewed by more than the police who collected it.
    None of which gives us enough information to assess guilt or innocence, or the likelihood of either.
    What we can say is that the spin merchants have taken over – Christopher Finlayson appears to have forgotten that he is a lawyer and has demonstrated such a lack of faith that other parties should not vote for any legislation unless it requires ample prior justification for any further covert video surveillance, does not excuse any past actions if they have been adjudged illegal, and meets Human Rights standards – and not just on a Finlayson assessment.
    There is a bill substantially agreed a year ago – both Labour and National should agree that whoever is in government after November will put a considered bill before the house before Christmas and guarantee a proper select committee process; the current bill under urgency should be withdrawn, or perhaps better yet defeated in the house.
     
     

  12. clandestino 12

    Fuck this is any absolute joke and pissing the fuck out of me!

    Haven’t we all seen Operation 8? We know how the cops went about things and what these people were up to, they were pissing about in the bush!

    Fucking hell I know I’ve done worse, you can fire an AK-47 in this country if your heart desires and know the right people! (not saying I necessarily have, big bruv)

    Valerie Morse lives in Wellington FFS. One determined person could storm fucking parliament if they had the intent required (I don’t, bb). This is a joke. It’s one cop against a union and rights activist who (from people I know who know her) is perfectly sane. Those who wank on about how their freedom has been curtailed because of it, BULLSHIT! They have been filming for years you buying dope, smoking dope, and selling dope (not that I do, oh hoverer over us), and would have probably used it as police ‘witness’ evidence before.

    Fight the right fight, that is, against the police state! Huzzah…

  13. I’ll freely admit that I have also written computer viruses, keystroke loggers, had unprotected sex, gotten into fights, massively abused people, driven a car in excess of the speed limits, hacked into other peoples systems, compounded poisons and lethal gases, and probably a multitude of other things that could be highly unlawful in the right context.

    ah…but you’re not a real kiwi til you’ve shagged a sheep eh boys ?

  14. jh 14

    There’s none so blind as they who will not see- it is anathema that your fellow travelers are caught with their pants down showing their dark antagonisms to their own societies peoples and institutions.

  15. jh 15

    One of the funniest sights I saw was the peron with the long gray curly hair protesting the arrests in Colombo Street saying: “where just ordinary New Zealanders like you!”

    Iprent, Micky (what a joke) Savage etc, you are the reason Labour is no longer relevant to working people. You have over shot the mark by a mile.

    Never mind, enjoy your mutual masturbation on the Standard.

    • lprent 15.1

      *sigh* I suspect you mean “we’re just ordinary New Zealanders like you!”.

      …you are the reason Labour is no longer relevant to working people

      We’re not the Labour party. We are members of the party.

      I realize this is a subtle difference and may be beyond your level of comprehensible understanding, but it is as important for communication as the difference between “where” and “we’re”. MS and I come from different angles on to the issue of how and why the police have pursued this case. For both of us it has little or nothing to do with Labour and a lot to do with our viewpoints.

      For myself, the two issues are the legitimacy and respect for the law in NZ and the ability to change society peaceably.

      If the police do not respect the legal structure that they are working on, to the point where they appear to have deliberately used unlawful acts, then why in the hell should anyone else respect it? If the police hierarchy are prepared to tolerate rogue police who deliberately work outside the law like Aaron Pascoe, then why should I respect their organisation.

      Societies always require change to adapt to a changing world. It is preferable for the people who try to change things to work within the legal structures of society. Activists expect that social change is a hard and long road to change. After all you’re usually pushing against the inertia of most of society and there is a very good probability that you may not succeed. But never the less people do it because they think it needs to be done.

      The lesson of this case is that as an activist you can expect that the police will attempt to suppress your activities by pursuing you with unlawful means, laying spurious charges so that they can obtain search warrants to seize and hold your possessions, put you in prison for months, disrupt your life and activities for years waiting to get to court, and put you in debt to pay for lawyers. Eventually they are unable to make a legal case and drop it without any recompense. As the evidence emerges, what is quite apparent was that the crown never had any possible convictable case for anything beyond a relatively minor charges for most of the defendants.

      So my question is how is that different from any other nasty police state? Now I’m pretty sure that is the mindset of petty authoritarians like Aaron Pascoe, probably yourself, and others like Pagani or Collins.

      Why would any activist want to do anything openly when it can draw the attention of some pumped up little brownshirt like Aaron Pascoe into arresting you for reasons that appear to exist mainly in his fevered imagination? I’d personally do everything underground. But even that helps the wee empire builders who imagine themselves as anti-terrorism squads in a country without targets. They generate their own.

      However it isn’t the type of state that I want to live in. So rather than let it get worse, I will exert some effort to castigate the dickheads who mindlessly sprout platitudes about the police rather than look at what they are actually doing.

    • Funny JH you are using the classic “no longer relevant” argument.  Funny how it pops up as justification for all sorts of weird contentions.  It has the benefit that you do not have to argue the merits.
       
      The ordinary people I speak to are appalled at the granting of such huge retrospective powers to the Police. 
       
       

      • insider 15.2.1

        Seriously, I think more people are upset at the Coro St move. I just don’t see any groundswell on this.

        • mickysavage 15.2.1.1

          News flash insider, this is not about the politics it is about unconstitutional behavour and causing damage to our institutions.  If that is the extent of your concern then I suggest that you watch Coro street reruns and not bother commenting on blogs.

  16. Treetop 16

    Video camera surveillance is not currently being used by the police due to the uncertainty of its use. This tells me that the police don’t want to have to face the fact that the use of video surveillance is unjustified or illegal.

    Possibly the police need to also take a good hard look at their surveillance practices in other areas.

    • insider 16.1

      What it tells me is that the Supreme Court has just made a very clear statement on the issue and the Police are paying attention.

      • lprent 16.1.1

        Unlikely. There is nothing stopping them from using video*. The court decision simply said that they were unable to use it in evidence unless they had a serious charge to lay to justify the use of the unlawful evidence collected.

        So what the police reaction says to me is that the police are not confident that they will be able to lay serious charges in the cases where they are currently using video surveillance. Which kind of begs the question about why they are using it? From memory, the search and surveillance bill requires a warrant to be issued to install surveillance equipment on private property – in the same manner as they have to for wiretaps and the like.

        Or it could be that the police do have serious cases (as they assert), but closing the surveillance down means that they are simply playing politics. Not that good a look…

        So which do you think it is? Or give us your reasoning for another explanation..

        * Apart from the marky little issue of not having permission from the owner of private property to video from there because they don’t have a warrant to invade the property as they’d need under the search and surveillance bill. The owners of the properties that the police unlawfully appropriate usage without permission should retrospectively charge them some very high rents.

        • insider 16.1.1.1

          They’ve publicly stated that they’ve stopped all video operations including over the fence stuff on advice from the solicitor general following the SC judgment because that has said it is unlawful to collect. Where in the past they had a belief that an absence of law and guidance gave the freedom to film, this has changed things, particularly around trespass issues. I think the reason is a bit of both re politics and strength of non video evidence. The police have always been highly political players.

          • lprent 16.1.1.1.1

            Trespass isn’t really an issue. The way the law operates you have to get an order to kick them off if they do not damage or steal.

            However they would have problems using the evidence because of the unlawful way that they collected it.

  17. Treetop 17

    You hit the nail on the head in paragraph 2.

    I was aware that video camera surveillance could still be used, interesting that it is not being used.

    Have the police been asked why they are not currently using video camera surveillance?

  18. jh 18

    correction:
    “we’re just ordinary New Zealanders like you!”
    …….
    Oh boy what a work of art!. Scape and polish: truth, justice, rule of law. How’s Valerie looking now!?

    • lprent 18.1

      Read the post all the way though for my opinion. There are legal issues in there that you will have to understand to follow the logic – but I have provided links.

      *worry* You can read 600 odd words, can’t you? You don’t even have a spell checker to assist you (and you do screw up syntax even with one).

  19. aardvark 19

    two issues here

    1. police doing unlawful surveillance and national and national’s friends rubber stamping this unlawful surveillance. The police and prosecutors knew perfectly well that the lawfulness was in issue.

    Why ? because firstly the NZ Bill of Rights Act changed the law by underlining individual rights, and secondly, the surveillance legislation needed to put in a regime of approval for this sort of surveillance had not been passed by parliament. These drones need to toughen up and own the fact that the surveillance course they embarked on was a punt, and a punt that the Supremes rightly were having none of.

    2. as private individuals – not agents of the executive arm of government – but as private individuals we all of us can and do say “were you training how to make and use molotov cocktails”, “were you training to use machine guns”, “why ?”, “who were you going to use these against ?”, “what was your plan”, “I want an answer”

    LPRENT – don’t pretend these questions didn’t occur to you – and everyone else who has written here. And as private individuals – our rights to express our views protected by the same Bill of Rights Act – we can and do say ‘no I want to know what you were doing before you have my support’

  20. aaardvark 20

    two issues here:
    1.police and prosecutors embarked on a punt with the surveillance that has since been ruled out. It was a punt, because firstly police and prosecutors knew that the legislation to set up the approval regime for this type of surveillance had not been passed by parliament, even after a formal recommendation for it. Secondly, the NZ Bill of Rights Act changed the law here, by underlining personal freedoms outlined in the Bill of Rights Act.

    The ruling by the Supremes is no big surprise. Now that the Supremes have ruled, the drones responsible for the punt, need to toughen up, by owning the fact that the whole escapade was speculative.

    The usual law-n-order suspects are relying on the prejudice out there in the community against the accused – prejudice drummed up by sensationalist reporting of high lights with themes ‘terror’ ‘molotov cocktail’ ‘machine gun’ – to promote the retrospective legislation not as the act of bastardry that it is – but instead as a ‘we all know they’re guilty – we don’t want them getting off on a technicality’ – necessity. As usual Labour fudged by coming out with piffle about a select committee referral, and not standing up for the principle at stake here.

    2. lprent – as private individuals – not agents of the state – but as private individuals we can and do ask “were you training how to make and use molotov cocktails”, “were you using a machine gun”, “why”, “who were you going to use this against.” Everyone who has written in these pages has asked themselves the same question.

    • lprent 20.1

      …as private individuals we can and do ask..

      And as private individuals they (or myself) can tell you to stick their prurient curiosity up their favorite suppository.

      As I pointed out in my post, which I’d guess you didn’t bother to read, I pointed out that merely doing those things is not unlawful. For instance possession of a molotov cocktail is unlawful (as it is an explosive), but using one is not unless you do something illegal with it. But I’d have to say that the way the law reads the police would really have to find you with one to charge you with possesion. Identifying someone on a fuzzy video by their clothes doesn’t strike me as solid evidence of identity.

      I have fired automatic and semi-automatic weapons, played with explosives, built rockets, had flammable substances in glass bottles, etc etc. Some of these were probably not particularly legal and some were highly legal – in many cases for the same act. The difference is in the intent, and that is what has to be established (your very final point).

      Now I’m sure that amongst your reading of the recently released evidence you will have noticed that the intent was not exactly established by the police. in fact it was essentially non-existent from their case apart from some conversations that were clearly people blatting the breeze (catapulting buses?). And the most probable reason was that there wasn’t anything planned. Which is what all of the defendants have said from day one. As an ex-barman, I’d have to say that I have heard much more larcenous conversations any day in a country pub…

      But I guess that you were not listening. Perhaps you’d be better off asking the police why they tried to manufacture a case against 18 people of “terrorism” without any substantive evidence of any intent to carry out any acts of terrorism?

      In my opinion, the group of rogue police out in Otahuhu are the real villains in this case. Perhaps you should ask them some questions?

  21. jh 21

    Poo! poo! Iprent.

    [lprent: It is obvious you can’t cut it here in any identity. Permanently banning you. ]

    • Farrien Denton 21.1

      next speaker of house ?

      [lprent: And conversing with yourself is a sure sign of a troll. ]

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