- Date published:
9:30 am, November 26th, 2013 - 40 comments
Categories: crime, police - Tags:
The Police investigations into both the teapot tapes and the GCSB’s unlawful spying on Kim Dotcom came down to the same section of the Crimes Act, 216B. That makes it a crime to intentional intercept a private communication without lawful excuse. In both cases, the issue hinged on that word ‘intentional’ but the Police used very different definitions, and investigative tools.
When it was Bradley Ambrose being investigated over the teapot tapes, they used warrants to get hold of his phone records. Ambrose was interviewed. The Police concluded (outside their ambit) that he had acted “unlawfully” even though they did not find that he had intentionally recorded the Banks/Key conversation. They forced Ambrose to write an apology letter to Key to drop the issue.
But what about when it was the GCSB being investigated for intercepting Kim Dotcom’s communications without, as everyone agrees, the cove of their own legislation because Dotcom is a New Zealander and, at the time, the GCSB couldn’t spy on Kiwis? Then, the Police didn’t use search warrants or production orders. They didn’t interview all the key staff and, when the staff they did interview changed their stories, they discounted inconsistencies in their accounts.
They found that the GCSB staff had acted intentionally to intercept the communications (it was never in question) but applied a new (made-up) test: criminal intent. That is, they said it wasn’t illegal for the GCSB agents to intercept communications without lawful authority unless they were intending to break the law, and the agents weren’t because they wrongly thought that they were acting under the GCSB Act. They didn’t force the GCSB agents to apologise to Dotcom or declare their actions unlawful.
Now, that’s some list of differences.
The private individual got his records searched, the GCSB didn’t and only had to hand over what it wanted.
Ambrose was interviewed but key GCSB agents weren’t (to be fair, that’s on the GCSB, the police can’t compel someone to talk).
Even though the Police didn’t establish that Ambrose intended to intercept the communication, the Police decided he had breached the law; that the GCSB agents had intended to intercept the communications of Dotcom isn’t in question so the Police made up a stronger ‘criminal intent’ test.
Ambrose is defamed with the Police going outside their constitutional powers to publicly declare he breached the Crimes Act; no such defaming of the GCSB agents by the Police.
This is all with the Independent Police Complaints Authority now. It’s hard to have much hope that they will do a fair job, but hope we must.
I suspect this will all end up with Dotcom taking a private prosecution. I hope he offers to fund a defamation action for Ambrose, too, because there’s a lot of injustice from the Police to go round.
Gcsb may ebd up costing us alot of money over dotcom. It seems for dotcom its not about the money.i suspect nothinog short of a full public apology from key will make him drop it.
nice analysis of the two very similar situations.
He wouldn’t drop it. See through his bullshit. He’s already lied about going for compo once.
He’s using NZ and the left are just rolling with it.
He is a private citizen who has the personal wealth to afford the level of investigation and legal support that practically no-one else in our little slice of the world has. He is now taking the police and GCSB to task in ways that are only available to those with great wealth can and providing a feeding frenzy of information that is appreciated because it confirms a lot of our worse fears with regards to spying and policing and provides a platform of knowledge upon which we can act.
I don’t think anyone believes he is doing it for any other reason than complete self-interest. It doesn’t make me less grateful for the results though.
Well said, Zorr. Totally agree. Also see my 220.127.116.11 below.
IMO KDC is holding his ammunition for next year – both the extradiction hearing now scheduled for April (?) and the election.
“I don’t think anyone believes he is doing it for any other reason than complete self-interest. It doesn’t make me less grateful for the results though.”
i would say that a pretty common viewpoint
that is well said too Zorr
😀 infused. you, me and Helen.
Just a clarification.
Kim Dotcom is not a New Zealander (citizen), he is a New Zealand resident.
The clarification obviously does not affect your assertion that the GCSB acted illegally since the law which explicitly prevented the GCSB from spying on citizens also applied to residents.
In what sense is a permanent resident not a New Zealander, given the existing disparities between all the various parts of our cultures?
In the sense of my subjective experience of the world.
A resident has all the rights of a citizen including the right to vote.
But in my mind a person is not truly a New Zealander until they have citizenship.
This may or may not be common, but it’s how I’ve always interpreted it.
Mind you, I have dual citizenship, New Zealand and England. But I do not consider myself English.
So yeah, I’m totally inconsistant here.
It appears that a few years ago the US decided that it would start unilaterally spying on UK citizens, despite the UK being its most senior Five Eyes partner.
I don’t think that we would have got any better treatment in little ol’ NZ, whether you have your PR or your citizenship.
well, that’s pretty damn offensive to the great many NZers who are here are permanent residents and have been for many years
How about this then;
I wouldn’t consider myself a New Zealander unless I was a citizen.
I have an aunt who has lived in Australia for almost 50 years and is a permanent resident there. She doesn’t consider herself an Australian.
As I said, it’s subjective.
If you want to be offended, feel free.
resident and citizen : these are objective concepts.
Subjective is associating “New Zealander” with one or both of those objective concepts
“however in your mind a person is not truly a New Zealander until they have citizenship”
And just so we’re clear, that does not mean I believe they have any less right to be here, nor do I believe that they should have fewer rights.
Basically, because I would not feel like a New Zealander unless I was a citizen, that influences my interpretation when I see or hear someone using the term “New Zealander”.
Like pretty much everyone I’ve ever met in my life, I occasionally fall into the trap of assuming everyone sees the world or thinks the way I do.
Thats obviously what has happened in this case.
I don’t think that makes me a bad person, nor do I think it is particularly offensive.
If it does, or is, lets hear it.
😀 only a reflection of a Beautiful Mind . I was just cleaning the mirror.
Your contributions to The Standard generally shine.
And the unfortunate thing is, that none of it, is remotely surprising.
Readers of this post may also like to read Andrea Vance’s related article on Stuff today on the Police investigations into the GCSB spying on Kim Dotcom
MV you state “This is all with the Independent Police Complaints Authority now.” in your penultimate paragraph.
By “This” do you mean the findings of the Police investigation into the GCSB investigations only?
Or is the Police finding (including their illegal judgement* that Ambrose acted ‘unlawfully’) also with the IPCA?
* Only the courts – not the Police – have the right to judge what is unlawful.
Gee, the GCSB staff were described as “negligent” and “incompetent”. I wonder if there is an employment investigation going on?
Personally, I am not holding my breath re an employment investigation!
Andrea Vance’s article smells strongly of whitewash on the part of both the Police and the GCSB.
I may be being thick, but I am puzzled by Andrea’s last paragraph which does not seem to connect directly with the rest of the article
“Yesterday Prime Minister John Key refused to confirm whether he had been briefed to expect leaks from US spy whistleblower Edward Snowden that would embarrass New Zealand”
Any thoughts MS?
Here it is veutoviper:
Key attempts to transfer the blame on to Helen Clark who is unlikely to have known anything about it.
Thanks Anne – did not get to see the news etc last night so missed Key’s comments on Snowden. Key is hoping like hell that Snowden doesn’t ….
I laughed at Key’s comments re any Dotcom – Snowden link – ie “there are all sorts of rumours … I don’t know of any links.”. IMO Key is dreaming if he doesn’t think that Dotcom and his lawyers haven’t been in touch with Snowden and his people.
I desperately want Snowden to release what he has on NZ’s involvement. I realise he’s playing the long game but this needs to happen before next year’s election, for NZ’s sake. (Though it might be just as bad a look for non-NACT politicians, it’ll be the government that has to deal with the fallout.)
I wonder if there’s any point trying to reach out to him on Twitter etc.
Glenn Greenwald, the NYT, etc. have all the documents now. iirc Snowden said he took nothing with him to Russia.
As CV said, others now have Snowden’s files.
When I said that Key was dreaming about any links Dotcom- Snowden, what I was not saying directly is that IIRC Dotcom tweeted about being in touch with Snowden months ago.
Also see my 18.104.22.168 above. IMO Dotcom is keeping his ammunition dry for next year – his extradition hearing in April (?) and the general election.
He has top legal advisers here and overseas, and with the success of Mega launched less than a year ago, his finances are apparently doing well again. So my belief is that he will throw massive resources into exposing what he has next year.
An interesting tweet by KDC earlier this morning in relation to the Police findings and the Vance article
“I have the feeling there may be a private prosecution of #GSCSB spies and the Prime Minister based on upcoming NZ #Snowden leaks.”
I’ll get the popcorn ready….
It is as clear as a Bell Bird that the police were under instructions from a higher source to:
a) find Bradley Ambrose guilty of something. All the evidence pointed to an accidental recording caused by the police and DPS officials unceremoniously pushing the media out of the cafe and into the street outside. This fact was verified over and over again by witnesses yet the police ignored it and found him (probably) guilty of an unlawful act. Ambrose was forced to make a written apology to John Key for something he didn’t do. Btw, that’s a trick (letters of apology) Govt. authorities sometimes bring to bear on subordinates. I can say that from personal experience – albeit quite a long time ago.
b) do everything in their power to protect the government, the GCSB and of course themselves. The officers involved lied and cheated their way out of responsibility, and pretended nobody had done anything wrong except the target, Kim Dotcom. They saw themselves as ‘big time boys’ operating on behalf of a big time US agency. What I found the most disturbing was the attempt to cover up the whole mess, and I don’t trust the IPCA to come up with the correct conclusions.
Many years ago I was involved in an car accident with the brother of a local Policeman. He was in the wrong. I was breathalysed, he was not. By the time an ambulance arrived at the scene, he had been sent on his way, I was sent for a routine “check-up”, and a blood-test. I was cleared, but no charges were laid against him. Later, when queried, the officer said he was his brother, he was reliable and honest. Oh the double standards at work in our society. Me, they were trying to convict me, even though I was the innocent party in the accident.
This is just one example of the double standards at play in society. Then there was Keith Locke and his sibblings, who happened to be the children of Jack and Elise Locke, who were spied upon as children, long before they ever became politically active, just because they were children of two prominent activists – now that is disturbing.
There needs to be a royal commission of enquiry into police .
Police need the decks cleared to be respected as they should be their has been to many wrong doings .
A white paper or some look at policing in NZ.
For senior public servants to refuse full co-operation in a police investigation would mean the end of their career, would it not ?
very disappointing. the intent of the Police indeed. They wonder why we shake our heads. Oh well, they’ve got new Red and Orange cars this summer, at least they’ll resemble smarties.
Kim Dot Com? Extremely capable man, one of the big boys , and they come bigger, just not my cup-of-tea.
Wasn’t the absence of evidence of criminal intent the reason the New Zealand Police decided not to prosecute John Banks under the Local Electoral Act?
Well, if the police are careful not to look in the right places for evidence, then they can say with hand on heart that there was an absence of evidence of criminal intent.
And if the Prime Minister refuses to read subsequent police reports… the Sgt. Shultz defence kicks in, “I see nothink, I was not even here…”
Michael Valley has it exactly right.
The legal distinction between “intentionally” and “with intent” is indisputable. It is not something which can be discussed in terms of opinion. It is as palpabale an objective fact as 2 + 2 = 4. It is indisputable that the GCSB deliberately mounted unlawful interception. Everyone from the prime minister down acknowledges that. That is it. The offence is made out. The motive of the offender is irrelevant where “with intent” is not an element of the offence.
The only purpose of the conflation of the two was to “justify” the police not performing their public duty.
That begs the question – why would they not perform their public duty ? Was there “nudge nudge wink wink” from above or have they of their own initiative and uninfluenced decided to take a political pose. No one can sanely claim that they misunderstood the law. The most unartful law student wouldn’t so how could the police with their legal advice and resources ?
Either way there is cause for real concern. It’ll be interesting to see what the IPCA makes of it. The integrity of that body depends on its finding there was no misunderstanding and police inaction was deliberate.
The subjective argument as appears above about whom is or not “a New Zealander” is indulgent bullshit and a totally irrelevant distraction.