Article – Annemarie Thorby
Russell Fairbrother, as normal, was the first of the defence lawyers to open on Tuesday.
Operation 8: Day 19, March 13th
Tame Iti’s Lawyer Speaks
by Annemarie Thorby
Russell Fairbrother, as normal, was the first of the defence lawyers to open on Tuesday.
Mr Fairbrother is Tame Iti’s lawyer, but his opening statement began by mentioning Urs Signer.
‘Yesterday we heard some significant and important evidence from Christopher Stevenson on behalf of Urs Signer. One of those was Ruakere Hond, he began with a mihi. I have not translated it, but I refer to that because in my submission, that demonstrates very, very clearly the two different cases that have been placed before you this week.’
‘You heard the Crown put their case as strongly as they can do. I want to raise a few matters with you, that will make you seriously think about the base of the Crown’s case.’
‘Yesterday very fine people came to speak for Urs Signer and the same for Tame Iti last week, actually two had PhDs and that is not insignificant. What that tells you from the defence perspective is that we have quite an unorthodox position.’
‘The Crown presented their case with rows of police and two or three civilians. You may think that our case is unorthodox but if you look at it with different lens…it is completely compelling.’
‘The question I put to you, and ask you to take to the jury room with you is, are you going to convict Tame Iti on incomplete pictures painted by the Crown or are you going to consider the whole of the evidence…?’
‘You heard from the Crown, from Aaron Pascoe in fact (Aaron Pascoe was the officer in charge of the day to day running of Operation 8). Aaron Pascoe hadn’t considered all the evidence and didn’t place it all before you. He hadn’t considered the Waitangi Tribunal and the time-line and all those involved in advancing the Tuhoe case. And you heard from Tamati Kruger, who the police did not speak to.’
Mr Fairbrother reminded the jury of Tame Iti’s role in the negotiations with the Crown. He said ‘Tame Iti is the precursor for the Waitangi Tribunal’.
‘You heard from Dr McHugh about how the timing was so critical…2005 was a critical year. It was the first time in 170 years that the wrongs and that the suffering was being acknowledged by the Crown.’
‘In my submission you cannot dismiss that evidence, if you are going to judge the defendants on the standard of beyond reasonable doubt.’
Tame Iti is One of Those People
‘When this trial began five weeks ago, you each swore or affirmed to make your decision based on evidence here. That constructed how we, the defence lawyers, presented this case; how we put forward the best material for our case…it may make you uncomfortable, I don’t know. I don’t know your backgrounds.’
‘Take Tame Iti’s moko, some may find it intimidating. Some people may see him on TV and think why does he look like that? You now have an insight – it shows his deep cultural roots.’
‘Every day you come here, you pass great art work, these are not a Rembrandt, but great art from our Maori culture.’ Mr Fairbrother spoke about how it represented the two worlds in this case, and in this land.
‘By confronting that, we get to know it and understand it somewhat better. So that is what this is all about.’
Mr Fairbrother then talked more about Tame Iti. He quoted a passage from the bible: Matthew 13:57: A prophet is not without honour, save in his own country.
‘Many prophets,’ said Mr Fairbrother, ‘are well-regarded but not in their own land until later on.’
‘I suggest to you that Tame Iti is one of those people. Within the parameters of New Zealand, take 1981, we now know that the police resistance to that tour was wrong, we now know that we contributed to the overthrow of apartheid in South Africa.’
He Touches on Matters
‘1981 forced us out of our comfort zones…People were protesting and were convicted….Some of us were protesting and some of us were watching rugby.’
Mr Fairbrother asked the jury to challenge their own comfort zones.
‘No matter what personal feeling you have about Maori in society, what you think about the Waitangi Tribunal or whether you think Maori get too much or not enough – that is not the issue. You must put aside your own personal position on some of those issues…’
‘I am asking you to look above that horizon and to take what is given from the evidence advanced by the defence.’
‘So if you find Tame Iti’s appearance challenging, that is what it is meant to be. You heard from some well qualified people about the importance of that.’
‘And our grandchildren, yours and mine, will think well of Tame Iti. Long after I am gone and forgotten Tame Iti’s name will still be strong in the history books.’
‘You have been shown partial information from the Crown to pass judgement on. You have been asked to accept that there is some form of Plan B that will bring upon our fellow civilians mayhem. That is repugnant to all of us…and also I suggest repugnant to Tame Iti.’
‘That is why I refer to Ruakere Hond’s mihi and the artwork. It is about kinship and community, it is about putting things into context. It is about why we go on a marae and powhiri on a marae. You live your life and your history and you owe indebtedness to those who went before you and you try to equip yourself for the future…’
‘I suggest to you, it is very easy to condemn Tame Iti because he touches on matters that affect us.’
‘You heard from the military expert (he appeared on Day 10) about Jose Ramos Horta. The military expert had served in East Timor two times. For 400 years East Timor was colonised by the Portuguese, the Dutch and the Indonesians. And during part of Ramos Horta’s life, he couldn’t live there. Before independence, East Timor was supported by both Australia and the USA but the work of what the New Zealand military expert was doing in East Timor was supporting the return of Jose Ramos Horta….’
Mr Fairbrother pointed out that it is different for Tame Iti, basically he can live here.
‘Tame Iti lives and breathes Tuhoe.’
Mr Fairbrother also reminded the jury, ‘not one person from Tuhoe came to talk to you against Tame Iti, not even the local police officer’.
Mr Fairbrother then began to talk about the alleged camps that were the catalyst for the police raids in October 2007.
‘We know that the training is not a secret…it has been said that it was a rifle shot between the river and the school across the river, an area where children played. The track is easily accessible.’
‘This is not secret stuff, this is out in the open.’
‘Tamati Kruger says he knew what was going on….Tame Iti’s employers gave him time off….Time off to conduct revolutionary training?’
‘Even Tamati Kruger went to one of those camps and spoke about tikanga…he said the young people were learning to walk through the bush without torches.’ He said you can’t learn tikanga unless you live it.’
‘You heard that Urs Signer lives his tikanga, he speaks Tuhoe reo.’
‘So we have two worlds, one is when we get up when the alarm goes off, get up, go to work, work, come home…or you can have a life in Ruatoki where life relates to where you live. The weather and seasons dictate and kinship dictates to whom you relate – and that you have also heard about.’
A Belief System Not to Make People Tremble
Mr Fairbrother thought ‘it was interesting that my friend referred to the Spring Bok tour’ and then spoke about ‘how Nelson Mandela spent 30 years in prison because of his belief system, it was a belief system different from the ruling class’.
‘Tame Iti has a belief system and the Crown has tried to pull him down by the accusations of spies. They looked through a keyhole and tried to draw inferences of untoward behaviour.’
Mr Fairbrother then presented his own booklet to the jury, and said he wanted ‘to cover evidence heard for the first time, not only by the Crown but by the police’.
An example used was ‘when the knowledge is that Tame Iti’s employers knew about his activities, it suggests that someone in Tuhoe has a different perspective on what the Crown is trying to paint here.’
‘I suggest the activity is both culturally and locally appropriate. It may not be the sort of thing you see in Queens Street…but in another place…’
Mr Fairbrother also spoke about how ‘Mana Motuhake is a big concern for the police’. He reminded the jury of the Tuhoe Resistance CD taken as evidence by the police because of the sinister language’.
‘…but in July last year the Crown signed a compact with Tuhoe which recognised Mana Motuhake…’
‘So Mana Motuhake is not a phrase that makes us tremble. It is a phrase that gives autonomy to Tuhoe and that is what Tame Iti has been protesting for since the 1970s.’
‘My friend (the Crown prosecutor) uses a lot of words, when they are applied to Queen Street…that is scary….However you heard from Professor Dave Williams, who spoke about doing his PhD in East Africa, he did it ten years after people got freedom. And ten years later people were still using inflammatory terms…words to him which in New Zealand meant communist resurrection, but there these words were daily words.’
‘So the words seized here and there by the Crown, don’t forget the context and the statue of the man expressing those terms.’
Mr Fairbrother reminded the jury that one of the first pieces of video footage shown had been the one showing training around cars. It was presented by the Crown as practising hostage extraction, it is ‘part of the scenarios that something sinister was happening’.
‘But Crown didn’t see all what the police saw….and we saw it here. We saw it when Rau Hunt was in court.’ (Mr Hunt appeared in court on Day 16)
Mr Fairbrother said that the ‘mahi for the boys in Africa’ may have been a dream rather than reality…but security work was discussed.
The agreement between PF Olsen and Tuhoe (covered on Day 17) is significant ‘in those provisions are made by the logging company to live with Tuhoe. PF Olsen protect the bridge and protect the environment….and the obligation by Tuhoe is to protect the equipment. And within two months of the raids on October 15th 2007, the raids etched in minds forever, raids in which children were left in a garage and police stood on the Confiscation Line and stopped and examined vehicles, the contract was signed within two months of the raids. Within two months they were in agreement….’
Aaron Pascoe, when asked what he knew about Tikanga Maori, found it ‘…hard to say what he knew now and knew then….But he knew enough to warn his supervisors that termination should not take place on the Confiscation Line…You heard Tamati Kruger say that the police were on the Confiscation Line….so the message from Aaron Pascoe did not get down to his leaders…’
Mr Fairbrother said that before Operation, 8 he himself, like many people, was not aware of the Confiscation Line. ‘But those who live it, know it every day…’
‘…what police were not aware of, is that Tame Iti was an agent of peaceful change for many many years. He is recognised around the world…and that was not challenged by the Crown when Dr McHugh spoke from England (Day 16)….and Dr McHugh said that Tame Iti was not only important in this country but all around the world.’
‘Dr McHugh also gave evidence of John Wilkes, a man who brought great change to England, but in his time he was derided…if he were living today he would be facing the same charge as these four.’
‘The police don’t understand that one party must challenge, and everyone must take the challenge to self-realise…’
‘The challenge is not to laugh at Tame Iti…not to be sacred…but to think why these things bring in me this reaction…’
‘It seems police are not aware of that…’
‘Information on Everyone’
Russell Fairbrother spoke of the ‘Otautahi Tane’ chat that Ross Burns closed extensively on. It is a ‘twenty odd page record of a computer chat-room log that the Crown says is between ‘Otautahi Tane’ and Tame Iti.’
However before going into more details, Mr Fairbrother paused and told the jurors to first turn to the front of the booklet that he had prepared for them. ‘It contains matters we believe are important for you to consider in your deliberations.’
‘…one of the early pieces of evidence was from a former SIG police officer John Fagan (he appeared on Day 11)…he spoke about having records of protesters in Wellington. Officer Fagan said, ‘I believe the police have a lot of information on everyone.’ You read that. I think it is chilling.’
‘We have spy elements…so many of these police stood in anonymity when appearing in court. Their work requires that people outside court cannot identify them….We have this police intelligence system to gather information on every one of us.’
‘Then we get to the only three civilians that gave evidence.’
‘Ross Burns says that the two brothers were taken away by a man with a shotgun…but the brothers say they went away with a man with a shotgun….The language is not incidental.’
The brothers ‘followed not out of fear but because they were on a track…Tame Iti was also taken out of the vehicle….And then when the brothers were at the camp, they did demonstrations of kick-boxing…at no stage did Tame Iti try to disguise himself…and the whole discussion that the brothers talked about…it is about your body and how to look after it…yes, one of the brother’s said he got a fright…but they also said they got an apology and they talked about the jokes their personal trainer tried to make.’
Mr Fairbrother said the brothers were at a waananga. ‘Tamati Kruger experienced a similar thing.’
At the camp the brothers attended, there was a lot of discussion and ‘…Mr Burns tried to bring in something sinister about urban warfare…you need to ask yourself why the Crown did not bring the personal trainer here to give evidence….He was not brought here…if any words were said that had an implication of something untoward, he would be here….the police would not have interviewed some kids a year later…’
‘…if you consider the evidence that here, there is more to this than meets the eye…It is larger than the keyhole used by the police…there is the context…and you need to ask why the personal trainer was not there…’
And back to the vehicle…’The military expert was not sure about what was being demonstrated…he was not shown all the video, he said he needed to see more…’
‘He said Molotov Cocktails were something he needed to be prepared to meet in his work…would that be consistent with people running towards a stove? Yes, he said. To be prepared you have to learn how to use them…’
‘…we have heard talk from Detective Inspector Geoff Jago (on Day 2), he was the police officer responsible for installing the cameras…and he started talking about huts….He talked about wharekai and wharenui as huts….that suggests a great cultural divide. But he also noted that people trained in military skills, such as the New Zealand ATC (The Air Training Corps) that ran from the 1940s until the 1970s. They trained because it gives camaraderie and purpose to their training. It is like kick-boxing, you are not going to get kick-boxed in Queen Street. But learning and studying kick-boxing, it gives you the training to achieve understanding of your body and self-discipline….’
‘It was also interesting that the military expert said that when they do their training, they dress up to play their parts.’
‘There was the constable who talked about the area around Whetu Road being a dumping ground…there were old shells…’
Mr Fairbrother also reminded the jury that ‘we now know that guns are common in Ruatoki’.
‘Tamati Kruger told you about the PF Olsen contract…Tame Iti was the prime force behind that…it was a security agreement consummated less than two months after the termination of Operation 8.’
‘Tamati Kruger told you about the contact with the Attorney General in Wellington, the meeting where Mana Motuhake was recommended…and Tame Iti was the precursor to those negotiations.’
‘He told you that in the Tuhoe context, revolution means battle for hearts and minds.’
‘That context you can’t put aside…of all the language used by the Crown…the Crown talk is fighting talk…’
Mr Fairbrother pointed out that fighting language is common. He used the example in rugby, a tackle is where ‘someone is taken out’.
Fighting language had also been covered by Dr Williams (Day 17), in his evidence he had said that his ‘Tanzanian students ten years later, after liberation, they still spoke about the liberation struggle.’
Through the Keyhole
‘…a year after the police started looking through the keyhole at Tuhoe, there had been immense changes, nothing is needed by force….’
‘Dr Williams said it was a great concession by the Crown in 2005, to recognise that Tuhoe was not responsible for the murders of Fulloon and Volkner…it was a major concession. In all his experience, it was unprecedented’
‘Constable Daniel Roser arrived at the house in Ruatoki associated with Tame Iti (evidence given on Day 13). He arrived at about 1pm on 15th October, only the Armed Offenders Squad was there…He did not know who had been there before him…he did a search and found some weapons, some aspirins and documents to prove that Tame Iti had a relationship to that place…’
‘I put it to you, if those documents had been there, they would have been put here before you…’
‘Constable Roser arrived there, he did not take fingerprints…He could not tell if the objects had been put in the car before or after the rain. There is no evidence to say who disturbed the scene and who put things there.
‘On 15th October 2007, Tame Iti had not lived there….he may have lived there since…but not then…’
‘On 15th October 2007 the police went to Tame Iti’s place in Whakatane. Aaron Pascoe, himself, says Tame Iti’s address was in Whakatane.’
‘Constable Mark Hannah searched the Mission House and found the computer…but he was not certain whose workplace it was connected to. He said there was a big emphasis on Maori separatism there, but the people were very friendly – his own contradiction..’
‘This is what I want you to consider and two more…’
‘In the text message booklet…Tame Iti is attributed to saying ‘a ruler must never mobilise his followers out of anger.’ He is not winding people up, he is saying he is leading the diaspora of Tuhoe to a truly liberating way of live.’
‘Taaku aroha, Bys’
‘Then in the computer log, there is a 20 odd page chat with the Otautahi man…when the computer man Mr Langille came, he gave evidence but he did not say when people last checked in….You are asked to read into it what you like.’
Mr Fairbrother then read the beginning of the chat, and said to the jury ‘I suggest this person is female…the language used and if you look at it rationally, they do talk-about Tame Iti in the third person…’
‘Then the person asks, ‘where is Check? (Check is the user name attributed to Tame Iti) and when the answer is Ruatoki, the response is ‘Ruatoki? Bloody hell?’…’ Mr Fairbrother read more of the chat, it concerned kinship connections. ‘So we have names…we get names…and we know the names are connected to Tame Iti…’
‘So we have a conversation between two people trying to work out how they are connected.’
‘…it is interesting that at page 5 the name ‘G. Jago’ came up (in a friendly manner)…now I am not trying to suggest that that is the same police officer, but those are the leaps the Crown is trying to do…to make leaps…’
Mr Fairbrother read more of the conversation, ‘The two keep talking and then say that they support Tame Iti and his B Plan….It is the only place it comes up, in all the evidence…in this chat between two people about Tame Iti…’
‘You can look at this chat-room log at will, and nowhere is Tame Iti in the first person…’
‘The next chat between the same two people…ends with my love…’Taaku aroha, Bys’.’
‘So I suggest…you cannot conclude the attribution of it to Tame Iti…and when you accept that, then a very large leg in the Crown case crumbles entirely…’
‘The Crown case is based on half-stories and misperceptions.’
Going Through Mr Fairbrother’s Booklet
Mr Fairbrother described other items in the document that he given the jury during his closing argument.
They included still images taken from the video that had been played on the day Rau Hunt gave his evidence. The photos showed three vehicles and showed Rau Hunt instructing on how to examine a vehicle for contraband or hidden material. Photos also showed him explaining how to do convoy work.
Mr Fairbrother reiterated that it was VIP work.
‘The military expert said he wanted to see more, but he was not shown more by Aaron Pascoe. He was only shown what they wanted to show him.’
Other sections of the document included copies of the PF Olsen contract. A contract that Tame Iti was ‘a precursor to…and if this contract is breeched by some hothead, then all that work is gone…’
There was also a photocopy of the Compact in which the Crown acknowledges the Mana Motuhake of Tuhoe and Tuhoe acknowledge the Mana of the Crown.
‘So the Crown is acknowledging what Tame Iti has been fighting for all his life.’
There were also photos and maps of the Confiscation Line and the Marae.
There were notes from the Waitangi Tribunal report. There was also a note about the people of te Urewera being fiercely protective of their tribal identity and Mana Motuhake.
‘You cannot think that the Waitangi Tribunal think people were about to attack…’
‘Ruatoki and Urewera are culturally moved,…these are the people…unwilling to commit to mainstream values and this is exactly what this is about – Aaron Pascoe’s value, police values and his bosses values….’
‘Conflicting views and misconceptions is what this trial is about…and it shapes the issue which is before you today.’
History and Time and Tame Iti
‘So think back to Nelson Mandela, Jose Ramos Horta and Te Kooti and many others. History is full of people getting half a story and reaching a conclusion which is often punitive and then regretting it.’
‘In 1891 in the Auckland Star, the paper of this town, could say of Ruatoki and te Urewera that their political concerns should be taken seriously…’
‘This trial is about two worlds – Ruatoki, where Tame Iti springs his political theatre from, is a place…where Maori culture is dominant. When…you consider your verdict and words that the Crown say are inflammatory…put them in context of where they belong.’
‘And people are returning to keep the log fires burning…Tame Iti senses something special…he is calling people back home to be part of tikanga..to keep the fires burning…’
‘There are great rates of poverty in te Urewera and what does Tame Iti do, he works in mental health. His work is precisely in this area of deprivation and suffering. If he feels angry, you can’t blame him…his own kin are suffering from deprivation.’
‘Deprivation cannot make you violent, it often makes you the opposite. Bullying can never succeed.’
‘You get from Tame Iti the call home, rama is the term I use…Tamati Kruger said it can also be the way forward and that is Tame Iti’s right…’
Mr Fairbrother then returned to the subject of the visit on the Waitangi Tribunal in 2005.
‘It was conducted in accordance with tikanga…they were met with challenge…it was totally appropriate in relation to tikanga…’
Again Mr Fairbrother spoke of the acceptance by the Crown that Tuhoe was not involved in the murders of Fulloon and Volkner.
‘This was described by Professor Williams as unprecedented and a hugely significant event…’
The Crown changed their understanding over time as they moved through the hearings.
‘Why would you ever imagine that Tame Iti has a plan B…there is no logical reason that you can conclude that…’
‘There is No Evidence’
‘There is no evidence at all that the Crown has produced to show a telling situation is about to occur…what happened in te Urewera is that all is going so well for Tuhoe .’
‘One day the encircled lands will become the jewel in our Crown.’
‘You have two separate cases running through this trial – the Crown case is formed on incomplete evidence…there is no better example for this than the two photos of the car…but police did not show that, because it did not fit into their scenario.’
‘It reflects that we have two different lines running through this country…’
‘What is important?…Kinship and working together for a better New Zealand.’
‘So this case will probably go down in history…your part and my part will be long forgotten… you can’t discount what people say about Tame Iti.’
‘There are four people on trial, I represent one and you could find a verdict where you acquit one or two or convict all four…’
‘I suggest to you that what you heard won’t allow you to draw any conclusion of hatred in the sense used by the Crown, rather than that used by Tamati Kruger.’
‘When you look at the documents and the thermite bomb found, that person is not even someone here…and there is no evidence that Tame Iti saw any of this evidence…he didn’t see the scenario document…he only said ‘come to rama and be part of this community’..it is a big ask for you to say that he could be aware of that evidence…’
‘The case is, he is a prophet…he is very important for you, for me, for our kids…’
‘The only way you can reflect that in this trial, is by a response of not guilty to each and to every one of those charges.’
Mr Fairbrother then sat down, his closing argument was finished.
Court was adjourned to 2.45pm when te Rangikaiwhiria Kemara’s lawyer, Jeremy Bioletti, was to begin his closing argument.