Police repeatedly entered private Tuhoe land without legal authority to plant cameras to record what is alleged to have been military-style training camps in the Ureweras.
LATEST: They continued the secret filming long after it became obvious that the violent seizure of land that was feared was not in immediate prospect, a Supreme Court judgement that is now able to be published says.
Police are criticised, but also receive some sympathy, in the judgement. It is one of four released today about whether the evidence gathered could be used against 17 people then facing charges stemming from the investigation.
The outcome of the cases is that the charges against 13 were dropped and four are expected to go to trial next February on allegations that included that they were part of a group with objectives that included murder, arson, kidnapping and other serious crimes.
In the Supreme Court's decision Sir Peter Blanchard said the investigation began when it was suggested Tame Iti and others appeared to be having military-type training exercises in camouflage clothing and using semi-automatic weapons. In May, July September, and October 2006, police intercepted text messages between those they believed were involved.
In November police at observation posts on land in the Ruatoki area withdrew when they heard a large number of shots being fired.
In the months that followed they applied to a judge for more search warrants, in the early part of 2007 alleging "seditious conspiracy" and later replacing that with taking part in a "terrorist" group. The terrorism allegation did not stand legal scrutiny though and the Solicitor-General was later to rule that Terrorism Suppression Act charges could not be laid.
More filming was undertaken and police searched sites where they believed training camps had been run.
The police operation ended in October 2007.
Police did not hide the fact of filming to the judge who granted the search warrants but the judge's implication in activity beyond the lawful authority of the police was another troubling feature of the case, Chief Justice Dame Sian Elias said.
Dame Sian said Parliament had given the police authority to intercept private communications, but it had not given an equivalent authority with respect to secret filming.
It was clear that by at least April 2007 the police knew any risk was not imminent, Dame Sian said.
"Their surveillance was extended principally it seems for evidential purposes and in order to gain a better understanding of what was proposed by and who comprised the group."
Sir Peter said that the issue whether the police belief about what was happening had any substance or police simply misunderstood what was happening was an issue for any later trial.
But there seems to be no question that the police did act throughout in the genuine belief that the group's leaders at least posed a real threat to public safety if they were not investigated and stopped, he said.
The judgement leaves room for future arguments about covert filming on public areas.
But all members of the court agreed that the warrants police relied on were invalid and that made police trespassers when they planted the secret cameras, so the evidence collected through the trespass was improperly obtained.
TRIAL 'UNHINDERED' BY TRUTH
The type of secret filming police used in the investigation of alleged military-style training camps in the Ureweras in 2006 and 2007 fell into a legal hole that Parliament had failed to fix, it can now be revealed.
In a Supreme Court decision issued on September 2 but only able to be reported now the country's top judge, Chief Justice Dame Sian Elias said the courts could not fix the problem without destroying important values "to the detriment of the freedoms guaranteed to all".
It could be readily accepted that police needed legal powers to investigate what could be serious criminal offending, she said.
"Parliament has not however provided legislative authority for covert filmed surveillance, despite recommendations that it should do so," Dame Sian said.
The case split the members of the court on whether the seriousness of the allegation against four of the 17 accused meant that the evidence, even though unlawfully obtained, could nevertheless be used anyway.
Some members of the court were critical of the action police had taken.
"Crucially, there was a deliberate or, at the very least, a reckless disregard for the boundaries of legal power," Justice Andrew Tipping said.
Another judge, Justice Peter Blanchard, said even taking the most favourable view, police seemed to have been prepared over and over to run the risk of acting in breach of the law. They did not get legal advice when they should have.
The outcome was that a majority thought the evidence could be used against those facing the more serious charge of taking part in an organised criminal group - Tame Iti, Emily Bailey, Te Rangikaiwhiria Kemara and Urs Signer.
That allegation was refined this week in an amended charge that specified the objectives of the group were one or more of: murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm, using a firearm against a law enforcement office, or kidnapping.
The four also face charges of having weapons, including shotguns, military-style rifles and molotov cocktails.
They are due to face a jury trial in February.
The Crown formally announced on Monday that it would not proceed against the remaining 13 accused who faced only Arms Act charges.
The effect of the Supreme Court judgment was that the covert film evidence could not be used against the 13 charged only under the Arms Act.
The Crown says media discussion of the Urewera case - and the dropping of charges against 13 accused - had been "unhindered by the truth".
In the Court of Appeal today the Crown successfully pushed for the release of lightly edited versions of three court judgments dealing with what evidence could be used against 17 accused.
Comment has been allowed to take place in the media unhindered by the truth because the judgments have all been suppressed, prosecutor Ross Burns said during a hearing conducted by telephone conference this morning.
The three judges turned down an attempt by lawyers for the four accused to stall release of the judgments until they had more time to consider grounds to oppose the release.
Mr Burns said trial prejudice was a two-way street.
Up to this point there has been a very inaccurate picture in the media about what has gone on, he said.
The release of the judgments would help accurate and appropriate reporting and was more likely to enhance fair trial rights than go against them, he said.
In any event the court had no power, for legal reasons, to hear the appeal that was trying to be mounted against release of the judgments.
Lawyers for the four remaining accused, Tame Wairere Iti, Emily Felicity Bailey, Urs Signer and Te Rangikaiwhiria Kemara, all wanted more time to consider the implications of release or opposed their release at all pending the trial.
Kemara's lawyer, Charl Hirschfeld said the "cut and paste" that would inevitably be used in the media would cause prejudice.
The case had unique features that far from publicity waning over the years, it still had an extremely high public profile.
Val Nisbet, representing Bailey, said that even since a new form of the charges was presented in the High Court on Monday headlines about planning for "murder and mayhem" had emerged. It highlighted the concerns of the accused, he said.
Christopher Stevenson, for Signer, said the case was still "teetering on the edge of a stay", an application to have the trial stopped on grounds that the accused could not get a fair trial.
That the accused were still generally referred to as "terror suspects", when no terrorism charges were laid, was an example of how the case was misreported, he said.
Mr Stevenson said if the court erred on the side of caution and kept the judgments suppressed there would be no peril to the upcoming trial.
- The Dominion Post
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