Article – Annemarie Thorby
The judge greeted the jury and thanked them for both their early attendance their punctuality throughout the trial.
Operation 8: Day 21, March 15th
The Judge’s Summing-Up
by Annemarie Thorby
The judge greeted the jury and thanked them for both their early attendance their punctuality throughout the trial.
He explained to them that what he would say during his summing-up would be in four parts:
Part One: the instructions given routinely to juries,
Part Two: a discussion of the charges themselves and an explanation of what must be proved before a jury could find any of the four defendants guilty,
Part Three: guidance and direction in relation to particular aspects of the evidence,
Part Four: a summary of the addresses heard from both the crown and defence.
‘First,’ the judge said, ‘I want to remind you of something that I spoke to you about at the beginning of the trial, and that is our respective functions.’
‘As the judge, I have exclusive responsibility for legal matters. In that capacity, throughout the trial I have been required to make legal rulings in your absence. These were for the purpose of ensuring the trial was conducted fairly and according, to law, fairly to both sides.’
Part One: The Legal Directions
The judge said he had sole responsibility for the legal matters whilst the jury had sole responsibility for issues of fact.
‘If you understand me to venture any view in the matter of my address, you are at liberty to ignore it.’
‘The responsibility to make factual findings is yours and yours alone, subject to only following the directions that I give you. I also emphasise in my opening remarks to you that you must come to those factual findings on the evidence presented to you in the trial, and on nothing else…putting to one side anything you previously read or heard about the case, or any information that came to you in the course of the trial. Other than what is presented to you in this court.’
‘I remind, and remind you again – come to your verdict solely on the basis of the evidence…’
‘Fairness to the crown and the accused requires that a verdict is reached only on what is presented in open court and that can be tested and challenged.’
The judge explained a little more about the responsibilities of a jury, before telling the jurors that they ‘had the best seats in the house’. They were the people who had the benefit of hearing everything in open court to help them to come to a verdict.
With reference to the other people arrested during Operation 8, but whom subsequently had all the charges against them dropped, the judge explained that those charges were dropped for legal reasons. And those reasons had ‘nothing to do with accused here’.
Those reason do not concern you…the fact the charges were dropped is completely a neutral factor…irrelevant to your deliberations.’
He also reminded them about ‘the importance of putting to one side any preconception or views’ and to listen to the evidence with an open mind.’ He had told them at the start of the case, and he repeated it again.
‘Do not allow yourself to be swayed by emotional responses that may sway your deliberations…You must reach your verdict uninfluenced…Your duty is to act in detachment in reaching your verdict…’
‘It has been said that this trial will go down in history. Maybe it will, maybe it won’t…it is not easy to judge how present events are seen in the future…but how history will judge, is not a matter that should trouble you or deflect you from your job.’
‘The high public interest in this case, and the fact that it focussed on issues of prime interest to Maori doesn’t change your focus.’
‘Maybe there are two worlds – but there is one law. That is the law that binds us all and according to which you must reach your verdict.’
The judge explained the presumption of innocence – ‘every person is presumed innocent’ and that fact is unaffected by the election of an accused whether or not to call evidence.’
‘The crown must prove guilt in relation to each charge, to the standard of beyond reasonable doubt.’
The judge further elaborated on what is meant by the phrase ‘beyond reasonable doubt.’
‘If, in relation to any charge, you have doubt, then that is your duty to give the activity the benefit of that doubt and bring in a not guilty…on the other hand, if you reached the standard of being sure of guilt, then obviously your duty is to find the accused guilty.’
‘The final remark in this…is of the need to reach an unanimous verdict. The verdict on each charge must be the verdict of all.’
The judge explained that in recent years there have been changes to New Zealand laws regarding jury verdicts. However, he told them at this stage not to concern themselves about that.
Part Two: The Charges
To assist the jurors with ‘what the crown must prove before an accused can be found guilty’, the judge provided the jury with a ‘Question Trail’ . He described it as ‘a check-list, a road map…to help you to consider the charges in a logical way.’
He explained that ‘Each charge must be considered specifically. And each charge against each accused must be considered specifically…this means that the evidence relating to each charge and each accused must be isolated and considered specifically.’
The charges were grouped together for convenience but they are separate charges for each individual.
‘You may have got the impression that this is an all or nothing case….but that is not simply the case. If that was the impression that was conveyed to you…discard that immediately.’
‘You will be at liberty to find an accused guilty on some, not guilty on others….some accused guilty, some not guilty on others…any combination or permutation is possible…it all depends on how you find the evidence in relation to each individual in relation to each charge.’
The judge stated that ‘every criminal charge is composed of elements and ingredients…every charge can be broken down in to those parts’.
‘Generally there are two kinds of elements – one is the physical element: the thing what someone does. The other is the mental element…that is, the thing that someone thinks knows or intends…’
‘When I consider the charges…you will see, also in order to prove some of those elements, especially mental, the crown relies on inferences – the process of drawing inference is familiar to you all…a particular impression in this case…the process of reaching an inference is simply to reach a conclusion by applying a logical process to establish the fact.’
He stated that there are two key conditions before a person can employ this process of reasoning. One is based on facts that a person can rely on…’you are asked to infer…for example, people that were driving to Ruatoki before the camps occurred, and then were driving back away from Ruatoki after the camps occurred…you can infer that the people attended a camp. That involves a process of inference…’
Another example given by the judge to establish occupation of a house, was of clothing and articles found at homes that were seen being worn by people in the video footage. ‘You could infer that occupation of the house was by that person shown in the video footage…’
‘This process of drawing inference from facts that you find reliable, arises in this case in relation to all manners of subsidiary and secondary issues, but also in relation to the question that seems to be accepted as being at the forefront of this case…’
‘By and large the facts put before you are not in dispute, certain matters are disputed, but there has not been a widespread challenge of evidence called by the crown.’
‘The critical question, as put by the crown prosecutor, is what does it all mean. Where was it all leading? What was the end game?’
‘This question gets turned into legal issues for the purpose of the charges…but remains a key question in this trial. What here these camps meant to achieve?’
Were they directed to train some sort of militia as suggested by the crown…acts of violence…if peaceful negotiation failed? Or training in bush-craft or for participants to gain employment in security or overseas work? Or was there another explanation? That is the overcasting issue…’
The Question Trail was then distributed to the jury.
He noted that a reminder was on the front: ‘each charge must be proved beyond reasonable doubt unless otherwise stated….and each charge against each accused must be considered separately.’
The Charges – ‘Participation’
The first count, count one is ‘Participation in an Organised Criminal Group’, section 98A of the Crimes Act.
Set out in the Question Trail were four questions that the jury must consider:
1. has the crown proved beyond reasonable doubt that an organised group existed
2. that the accused knew that it was an organised group
3. that they participated in the group
4. that they knew or were reckless in that their conduct may have contributed to criminal activity to further the objectives of the organised criminal group.
The judge spoke about the first question: ‘…an organised criminal group is a group of three or more people who have as an objective to commit serious and violence offences…There is no need for the group to have a formal structure or for there to be formerly defined roles…It doesn’t have to have continuity or to have a formal structure…The membership can change from time to time but cannot at any stage fall below the number three. Three is the threshold. The group doesn’t have to had existed for the entire period….but the group must have had some form of structure…’
‘…and the crown case, if you accept it, has basically met those criteria.’
‘It is, that there was a group that includes the four, but it was not confined to them, which existed through from late 2006 until the operation terminated. And that its purpose or function…its reason was to train members and others in military combat…and on that the crown case has, as one of its objectives, one or more of the serious violent and offences specified.’
‘Let me emphasise, that the objective of committing serious or violent offences…doesn’t have to be the sole object but has to be one of them. The objective doesn’t have to be the objective of committing all of the offences set out there but it may be…but before the group can meet the definition of an organised criminal group, their objective must meet one of those listed…’
On the Question Trail document, the judge said there was a ‘summarised flavour of what the serious and violent offences were…short definitions of the crimes…What unifies them all, is that they are serious crime involving violence, most of them involve risk of death or serious injury…’
‘There has been some frequent mention of murder and mayhem, but mayhem is not there…there is no offence called ‘mayhem’. Mayhem is used as a shorthand for group offences…’
‘It is, of course, no part of the crown case that the accused or criminal group undertook detailed planning to commit such offences. The case is, is that the long term purpose was the commission of offences in the case of peaceful negotiation failing to secure the objectives of Tuhoe. That is, or has been defined, as Plan B.’
‘It will be a matter for you, but I suggest that the absence of detailed planning is not conclusive, the objective of committing serious crimes may exist and be the underlying reason for the camps…it can be the objective…’
‘If you find a criminal group indeed existed, then you must go to question two. In the trial you must be satisfied that the individual accused knew that the group was an organised criminal group. And this is a mental element, an accused most knowingly be aware that this indeed was an organised criminal group…An accused cannot be found guilty without that central element of knowledge, and that is a matter of inference. Mental state of mind invariably requires that a process of inference is applied.’
‘You must look at all the evidence that might provide you with clues and…have a commitment to reach a conclusion on the basis of that evidence.’
‘So of course, if an individual accused was actively involved in an organised criminal group, it would be only a short step to find that they knew of the group.’
‘The third element goes back to doing a physical element, that over that period the accused participated in the organised criminal group…What does participation mean? It means to engage in conduct that advances the interests or activities of the group, or appears to advance the activities or interests of the group.’
‘It does not necessarily require membership of the group, but it requires a level of involvement taking part in the group…’
‘Finally back to the mental element. You need to be satisfied that the accused knew or were reckless as to whether their conduct attributed or may have contributed to the criminal activity…To be reckless is distinct from actually knowing whether conduct may have contributed to any criminal act…’
‘And finally, for this purpose, I have mentioned that the criminal activity relied on is the unlawful possession of firearms and restricted weapons…It is not of course the ultimate objective, but the criminal activity that the group actually engaged in is relevant here.’
‘So in order to find the final element proved, you must be satisfied and find proof that the accused knew or was reckless as to the conduct earlier referred to, may have contributed to criminal activity.’
‘The crown case is that all the accused were actively involved in the criminal group, but in very different capacities.’
‘Tame Iti is identified as the organiser, at the top of the tree, providing the impetus and direction.’
Te Rangikaiwhiria Kemara is also identified to be one of the organisers, and he had a particular task of acquiring firearms to be used in training.’
‘Urs Signer and Emily Bailey, their position is somewhat different. They did not, it seems attend all the camps, unlike Tame Iti as the crown accuses. Their organising role was to provide a link with the Wellington participants.’
‘In the end, although you will consider carefully what it is that each accused did, it will not matter for this charge precisely what the matter of their role was…As long as it reaches the various criteria set out…It would not matter if they were the directing mind of the group or the foot soldier.’
‘There is participation in the crown case on any of those basis or something in between.’
The Charges – Possession of Firearms and Restricted Weapons
All of the unlawful possession charges, numbers two through to eleven collectively, arise out of the alleged presence of persons at training camps. The judge opted not to go through each charge separately, but to rather highlight issues and to explain the meaning of the charges.
‘What has to be established is possession…If and only if the crown establishes that an accused has possession of a firearm, do you move to the second element which requires the accused to prove that they were in possession for lawful and proper purposes.’
With regard to the issue of possession, the judge explained that, ‘the law is capable of making a simple idea quite complicated, and when it comes to possession that is what has happened.’
‘…there are four different ways you can find an accused to be in possession of a firearm or restricted weapon.’
‘The first option – actual physical possession, in much the same way as each of you are at present holding the Question Trail in your hand now. You have got custody or control of it. You can put it down, you can throw it away…It mean having physical custody and the power to execute control. Custody or control need not be executed…First, a person may have custody or control over a firearm even if another person has control over it – custody and control can be shared in law. In order to find a person in actual possession the crown must establish that that person had custody or control.’
‘That is the ability to deal physically with a weapon: to have it, to hold it, to hand it over…That is how more than one person can be in custody of a weapon at any one time…for example, the crown prosecutor showed video footage and Tame Iti was seen handing over a gun to a former co-accused. For the purpose of possession, plainly Tame Iti is in possession at some point, equally the other person is also in possession. And if that is the evidence, both individuals would at some point have possession of the gun…and if you found, more generally, that the group shared possession of the gun…individual members shared that custody or control… then he or she would also be in the actual possession of that weapon.’
‘On that first basis, the crown says you can find the individual accused each had possession of a weapon….If that is the case, then you can miss out the next steps and go to question six…but I won’t do that, because I want to explain to you the additional ways an accused can have possession.’
‘And that is if a person encourages or assists another to have possession of a firearm…They don’t actually have to have physical possession themselves, but encourage or assist others…’ The judge pointed out that ‘encouraging and assisting’ were defined in a side box on the Question Trail.
‘If you find that at any one of these camps, that a particular accused has not been shown to be in actual physical or controlled possession of the rifle, but given encouragement or assisted others, perhaps by bringing the firearm into one place, that would be sufficient for you to find them in possession.’
‘The third basis…for the purpose of this question; an accused could be in possession, even though they not present at the scene. And it is on that basis on which the crown relies on saying Urs Signer is in possession even when he was not in the country. It is common ground, it is accepted that he was absent for a couple of months and not present at the April or June camps. I stand to be corrected, and I think there is also no evidence of Emily Bailey attending camps.’
The crown prosecutor stood and pointed out that there was evidence that Ms Bailey had attended the June camp.
The judge stated that ‘what the crown says and what the law permits,is that there could be a finding of possession, if you could answer these five questions.’ He said that he would ‘use Urs Signer as the example to simplify things’.
‘First, Urs Signer intended to act in an unlawful purpose, and that was to undertake training camps in order to prepare participants for an unlawful purpose. Secondly, he assisted the others to prosecute the unlawful purpose, in simple terms, the crown case is that US was assisting others to organise these military style camps. Thirdly, and the crucial element, he knew that the unlawful possession of a weapon was a probable consequence of that prosecution of the unlawful objectives of the criminal group…’
‘So you would need to be satisfied that the accused joined with others in undertaking and planning these camps. That they assisted others and knew that the firearms were likely to be used at the camps…If you can tick those three boxes, you can find the accused guilty of possession even if they are not there.’
‘If in relation to any of the accused being in possession, then you come to question six and this is what we lawyers call the reverse onus….the law must normally be proved beyond reasonable doubt, and here the exception arises from the terms of the Arm Act…that once you have shown someone to be in possession of a firearm, it is for them to show that they had a lawful and proper purpose…They don’t have to prove it beyond reasonable doubt, but prove it on the balance of possibilities.’
‘What is lawful and proper purpose?…Take the example of someone in possession of a firearm to go out and shoot rabbits, there is no issue that that is a lawful and proper purpose.’
‘The crown case is that the accused cannot show a lawful and proper purpose. That is because the accused were under taking these training camps with the ultimate aim of crimes of violence…If you accept the crown’s case, then the accused cannot explain to you that they had lawful and proper purpose.’
‘On the other hand, if you accept that the firearms were there to provide skills to people in bush-craft or to require employment when in New Zealand or overseas, that is a lawful and proper purpose…So that is the essential nature of the issue of the judgement that you are going to have to make.’
‘Before I depart from talking about the firearms, it is important for me to reintroduce to you at this point the importance of considering the charges separately. First of all, for obvious reasons, the crown evidence as to the involvement of the individual accused…is quite different depending on which camp we are talking about…Also, critically in relation to the October camp.’
‘The October camp is a camp where, were you were to accept the evidence of Rau Hunt, the training of the larger group, or the group that was captured on the video footage, was for the purpose of providing security training for personal protection. So in relation to that particular example, the accused could have established lawful purpose. But you can’t overlook the crown case that there were two groups. There was another smaller group that was not captured on video footage. So you would need to consider separately, if that smaller group, if it existed, if you found it to exist: if it was in possession of firearms and was it for the same purpose as the larger group?’
The judge made additional comments in relation to the possession of restricted weapons.
‘…firearms continue to exist after they’ve been used. Molotov cocktails only have existence until they are used…So possession of a Molotov is a fleeting possession…The crown case is that possession in the September camp is to be inferred from the evidence found after the camps: the bottles found at the sight and the forensic evidence about what had been in them…In order to establish that an accused had been in possession of a Molotov Cocktail, you would have to find that they were present at camp and had possession. This is not a situation where an accused not present could have had possession, because there is nothing in the case to say forward planning for the Molotov Cocktails occurred…’
‘…in the September camp footage you may find a person was present and had possession, or was present and acting in a way that enabled you to conclude that they were actively encouraging or assisting those carrying or throwing Molotovs.’
‘Finally, I will talk to you about the remaining counts…’
‘These three counts are somewhat different considerations. They all relate to firearms found when at termination. Those were found at the camp site in Wellington, at the home of Te Rangikaiwhiria Kemara, and at the property in Ruatoki associated with Tame Iti…The issue of possession of these firearms needs to be approached differently…The crown case is that the firearms were found where the accused were in occupation…If found there, there is a legal assumption that the people were in possession…And it is another case of onus switching.’
‘The first question is, has the crown proved beyond reasonable doubt that Urs Signer or Emily Bailey were in occupation of the camp site where the firearm was found. In considering if they were in occupation, you need to look at the physical access to and the use of the camp site. As I understand it, it has not been suggested that Emily Bailey was not in occupation of the camp site. But Urs Signer’s position is somewhat different. Christopher Stevenson (Urs Signer’s lawyer) pointed out yesterday, that Mr Signer was apparently living elsewhere and his backpack was found at another address…That is up to you, but there is evidence that at termination both of Ms Bailey and Mr Signer were found at the camp site. Whether or not that can take you to a position of whether Mr Signer as well as Ms Bailey were in possession is up to you…’
‘If you did find an accused, that is either or both of them were in occupation of the camp site, then they are presumed in possession of the firearm found there. That is, unless they can prove that it is, likely or not, that the firearm is not their property and not in exclusive possession of someone else… a question for you. I do not presume to trespass on your responsibilities there…’
‘If then you find…that one or the other were in possession of the firearm, then you must ask yourself whether or not they proved they were in possession of the firearm for lawful and proper purposes…And that comes back to what the evidence overall tells you about their reasons for which they were in possession.’
‘It seems to be accepted that Te Rangikaiwhiria Kemara was in occupation at the caravan and was the driver of the vehicle in which weapons were found.’
‘But, as you will recall, Tame Iti ‘s occupation at the house in Ruatoki is disputed. The defence has referred to evidence that he was living in the house in Whakatane at termination. The crown acknowledges that to be the case but refers to evidence that is consist with Tame Iti occupying the Ruatoki property… the pharmaceutical prescription and Tamati Kruger’s confirmation that it was regarded as Tame Iti’s house …’
‘But that is all up to you Ladies and Gentlemen…to examine on each count whether they have persuaded you, on the balance of probabilities, that the firearms were in their possession for lawful and proper purpose.’
‘I need to mention the implication of Te Rangikaiwhiria Kemara holding a firearm license. As the crown prosecutor says, a firearm licence allows someone to hold and use a firearm but doesn’t excuse them from holding a firearm for a lawful and proper purpose…so possession of a license doesn’t affect your decisions.’
Part Three: Guidance and Direction
After the normal fifteen minute break for morning tea, the judge continued his summing up of the case.
‘In this the third part, I want to discuss with you some particular aspects of the evidence that requires specific consideration.’
‘The evidence comprises everything you have heard from the witnesses called…It includes evidence read to you…That evidence has the same status as evidence given orally by witnesses in person. The evidence obviously also included contents of all the booklets produced to you by the crown and any additional that has come in during the case. It also includes the video footage shown to you. You have also the still photos of snapshots of that evidence. That will remind you of what represents the key parts relied upon by the crown. But substantially you are relying on memory of what you saw in that footage. If you wanted to see any part of that footage again, you are welcome to do so, you only need to ask. As you can with any other thing that rises during your deliberations.’
‘Urs Signer’s periods of absences and convictions or lack of convictions may be treated as having been given by way of evidence.’
‘The evidence does not include submissions made by counsel, nor does it include the written summary given to you by the crown prosecutor and Russell Fairbrother (Tame Iti’s lawyer). No doubt, you may find it helpful when it comes to considering individual charges, but what they do is….they are documents there to assist you. But are not in anyway meant to determine or limit the scope of your inquiry and what you should take into account.’
The judge also told the jury that they have between them three copies of the transcript of oral evidence.
‘The transcript is there to help you to check in on what has been said…Or when there is disagreement between you, about what may have been said. It also provides you to check …what counsel said in their closing arguments.’
The judge said to the jury that the transcripts were not there for ‘casual reading’ and should only be used unless they have to, as ‘an aid to their memory.’ He then went onto speak about ‘identification evidence’.
‘Much of the crown evidence is directed at who was present and what they were doing at the camps. A lot of this evidence is directed at identification of particular attendants, including the accused.’
‘Most of that evidence was not challenged. It was not generally suggested that the police officers were mistaken. And frequently there was other identification to support the visual identification. For example, the address, the motorcar linked to a person, a series of sighting…and in some cases visual sighting able to be linked with communication between members of the group.’
‘What is more controversial, as appeared to me, was the identification of people on the footage at the camps around Ruatoki…Police witnesses gave their opinions of who appeared to be in the video footage. In some cases they relied on appearance, in some cases distinctive clothing or items carried, for example bags…able to be linked independently with the accused.’
‘The question whether any particular accused was present at any camp, is ultimately one for you and is at the forefront of your deliberations.’
‘It is up to you …if surveillance images can be relied upon. You can have regard to police witnesses…some of whom have made particular studies of the videos and…But the question of who was at the camp and what they did while there…is up to you – not up to the police officer. You are entitled to take into account what the police witnesses said obviously…in particular having regard to reasons why they made identification…’
‘But any evidence about identification can be mistaken. It is not an exact science, and my counsel to you is to consider carefully the evidence before deciding if any of the accused were present on a particular occasion and what they may have been doing or carrying while there.’
‘Expert witnesses…we have heard a great deal…they have special qualifications and training upon a particular subject…So we heard from the army expert who had comment, the armourer who could tell us all we need to know about guns, a fingerprint expert, telecommunications and forensic science experts…’
The judge said a ‘notable exception’ was one forensic scientist. The scientist was questioned under cross-examination by Christopher Stevenson. ‘Mr Stevenson questioned his opinion, that the test that he had carried out very strongly had support for the proposition that some of the cartridges found at the river camp site had been fired from the marlin rifle found in the bag at the Wellington camp site.’
‘Expert witnesses, unlike most witnesses, are allowed to give evidence…if the opinions are coming from in their areas of expertise. That is because they have knowledge that goes beyond what the rest of us have. When the evidence is not challenged…but when questions are raised as in this particular Forensic scientist’s questioning, it is up to you how much weight is to be given to his opinion or indeed to accept it at all.’
‘Text messages and chat-room logs…these are of course, the communication between…the organisation and the participants in this alleged criminal group. Before you can rely on those communications, you have to be satisfied of two things: first, that the parties were accurately identified, and secondly, that what is recorded is accurate’
‘The police witnesses have explained to you…how they identified the participants in the communication. They relied on a range of things.’ The judge cited examples of a phone in the name of someone, listings and directories under that person’s name or on another person’s phone. He also included ‘the use of nicknames and the like, and in the chat-room log, the use of particular code names.’
The judge spoke about the twenty page chat attributed to Tame Iti and Otautahi Tane. He said that the crown had put some reliance on that communication, and in particular to a reference in it to Plan B.
‘Russell Fairbrother, as you recalled, questioned if Tame Iti was actively identified as the speaker. He pointed to the way in which the way person signed of with love and the reference to Plan B in the third person rather than in the first person. The crown, in its part, said Tame Iti could be confirmed as the speaker because, in part from anything else, there is a reference in the log to the Marae he was affiliated to and to the family he was associated to be whaangai adoption.’
‘So this is a document, among many, that considerable weight is placed on. I use it only as an example, but urge you to take care, that before you rely on it or any other communication, you must be satisfied that the attribution to the accused or anyone else is accurate.’
‘This leads me to an associated point. Some of the text messages and chats don’t involve the accused at all. They were not parties to the communication. The parties are others who the crown says were part of the criminal group but who are not or no longer charged with offences.’ ‘The crown also relies on things found in possession of the others who are not accused but participants.’
‘An example is the thermite bomb recipe. Another is the diary of Tuhoe Lambert, who is of course not before the court because of his intervening death…’
‘This evidence…the evidence emulating from or associated with other members of the group, is relied upon by the crown to help shed light on the activities and purpose of the alleged criminal group. And the crown is entitled to rely on it for those purposes.’
‘However, I do need to emphasise that…because they are not before the court, those who have made statements are not in a position to confirm what has been attributed to them…You are entitled to rely on the evidence but before doing so you need to take into account that there has not been the opportunity to test or challenge that evidence, had those individuals been before the court.’
‘This you might think, will be of importance when you come to consider the evidence of the thermite bomb recipe. You don’t know when it got into his room, or how long it had been there. And you don’t know for what purpose and for what it was acquired.’
‘So I would be very careful before taking into account evidence of that nature….be sure that you can accept it as reliable evidence before you use it for the purpose of your deliberation.’
‘I now want to talk to you about the accuseds’ witnesses. Two called witnesses, two did not.’
‘Whether they did or not doesn’t affect the burden of proof. That remains with the crown regardless…there is no obligation under our legal system for the accused person to give evidence or elect to call evidence. That doesn’t affect prosecution…It remains the same – has the crown proved the case beyond reasonable doubt.
‘The evidence called by Tame Iti and Urs Signer is relevant in two main aspects.’
‘The first of Tame Iti’s witnesses places the activities, which are the focus of the charges, into the unique historical, political, cultural and perhaps geographical context…Such a broad context is not normally relevant but is really there, because among the key questions you are being called on to decide, is whether the accused acted in a lawful purpose…That is the question.’
‘It cannot be answered without an understanding of the historical aspirations and customs of Tuhoe so you will need to factor those into your deliberations. Your knowledge of the burning sense of injustice harboured by Tuhoe for past wrongs. The fact that those grievances were belatedly acknowledged by the crown in 2005, and the process to address those grievances by peaceful needs. And of course the values and aspirations that form the backdrop to the events we have been scrutinising. That is it in summary. It is the context but a very important context.’
‘Secondly, the evidence called by defence is relevant to the key crown contention, which is that the training camps were organised for the ultimate purpose of committing serious and violent offences.’
‘The defence says that doesn’t square with Tame Iti’s record of peaceful but colourful protest. And that through these protests he has helped Tuhoe secure unprecedented recognition of their claims.’
‘Urs Signer’s evidence was relied on to show his commitment to social justice by peaceful means. Ruakere Hond’s evidence of their peaceful activities…and what emerges in relation to the documentary evidence, shows that Emily Bailey also has similar commitment to helping others to achieving social justice.’
‘The fact that the accused are highly regarded for their personal qualities, cannot of course be a complete answer to the crown case.’
‘Christopher Stevenson put it to you, that you must reject the character evidence in order to convict Urs Signer…I suggest that goes too far, someone can do something that is completely out of character. Legal history is littered with people of good character doing something out of character.’
‘It can’t be said that someone with a good character…cannot have had the objectives alleged by the crown…and a crime is in as much a crime if it is committed in pursuit of a noble ideal, as if done in any other criminal act.’
‘You must have full regard of everything done but the assessment you may make of it…it is only a part of the case…it cannot be seen in isolation from the rest of the evidence or….the activities that you find the accused to have engaged in.’
‘That completes what I wanted to say about particular aspects of the evidence and you would appreciate that I have not sort to review all of it,…I have sort simply to highlight those categories that require it….’
‘The concluding part of my summing up is to summarise the closing addresses of the counsel…not comprehensively…not repetition ..it represents my best endeavours to extract the key points each of them made to you.’
Part Four: A Summary of the Addresses
‘In my summaries I will omit reference to the more colourful and more extravagant comments made by counsel. They no doubt result from the pressure of this case…They may have made comparisons drawn with history and people, that is not helpful…Further…the currency given to the idea that the prosecution has racial overtones…these sort of claims are distractions which will serve only to divert you from your duties.’
The judge dealt first with the crown’s submissions.
‘Ross Burns, the crown prosecutor, suggested that the Tuhoe history and hatred as described by Tamati Kruger…was the context.. he said the objectives were not translated into plans while peaceful resolution was pursued.
‘Balaclavas and armed patrols and the use of Molotov Cocktails and practising ambushes as experienced by the brothers were not consistent with training for bush craft or personal training…he said they were a nonsense and a smoke screen…these were not the kind of people who could or would engage in security work…’
‘He rejected the suggestion that Tame Iti was not associated with the property in Ruatoki.’
‘The purpose and intention – he pointed to the video footage. The way people expressed themselves in chat-rooms and in texts, and the documents found in termination.’
The judge said that Ross Burns had pointed out, that despite what was happening with the Waitangi Tribunal and anticipating the argument from defence that the negotiations were proceeding and militant intervention was not needed, Ross Burns argued that ‘that could not be fully assumed in 2006 and 2007′. The organised criminal group sort to secretly appear for action if the negotiations did not work.
Ross Burns had pointed to the sympathy of Te Rangikaiwhiria Kemara. Of Emily Bailey and Urs Signer, the crown prosecutor said they ‘were committed to their beliefs and were ready to sacrifice themselves. He suggested that all they can say to us is despite what they say and what you have seen, ‘it is too hard to believe.’
The judge said that Russell Fairbrother, for Tame Iti, had said in his closing argument that, ‘Tame Iti was a prophet without honour. He referred to him as a person of international recognition.
‘Tame Iti’s employer gave him time off to run the camps, and Tamati Kruger had attended one himself.’
‘Russell Fairbrother took you through the schedule of evidence particularly relied upon by Tame Iti…As I mentioned, Mr Fairbrother took issue with the claim that Tame Iti was associated with the house in Ruatoki. He referred to the disturbed scene found by Constable Roser.’
‘He discussed some of the text messages, including one in which Tame Iti said that the people must never be mobilised out of anger.
He took issue with the police identification of Tame Iti as a participant in the Plan B chat-room conversation. He said there was no logical reason for Tame Iti to have a Plan B and to conclude otherwise was wrong.’
The judge said that Te Rangikaiwhiria Kemara’s lawyer, Jeremy Bioletti had said that, ‘the crown case lacks credibility and the suggestion that the accused have objectives to commit serious and violent criminal acts is preposterous…they were training for close protection employment. If you take out a small number of immoderate comments and look at the camps in context…by the end of the camps people had reached a certain level and why would people be training in October if the purpose was to commit serious and violent offences.’
‘…most importantly, nothing happened between 2006 and 2007. Nothing happened. There was no Plan B.’
The judge said that Christopher Stevenson spoke of the evidence of Urs Signer’s character ‘and spoke of important individuals like him needed in democracies…a gentle and caring person driven by the concept of peace and unity. He reminded you that Urs Signer had immersed himself…’
‘He pointed out that there were no texts between Urs Signer and the others about serious and violent activities and no evidence…the fundamental problem is that it relies only on snippets of information…he gave you examples of evidence that may have sinister connotations in isolation but in closer examination were not helpful in the crown case.’
‘The scenario documents demonstrate that f or his client none of what was going on was real, it was a game. What is real is what you know about Urs Signer. He reminded you that in the October camp that neither Mr Signer or Emily Bailey were where Rau Hunt was teaching…in April and June Mr Signer was elsewhere and couldn’t be a part of the group at that time. He referred to you the correspondence regarding his teachers aspirations…over the period in question. There was a continuum and consistency on the part of Mr Signer to act to make the world a better place.’
The judge said Val Nisbet, the lawyer for Emily Bailey, questioned if a ‘criminal objective can exist given that it is no more than a possibility… dependent on other events. He reviewed important principles of the justice system and then read a document written by Ms Bailey about her beliefs. He referred to her involvement in peace work.
‘She had no computer or phone, so her communication with Tame Iti were confined to dates about Rama and he questioned, could this be make her a leader.’
‘She had no previous convictions and she would not hurt a fly.’
‘In relation to the firearm found at the camp site, he said there was no evidence that she knew it was there.’
‘In Count one, the evidence was insufficient and the objectives did not exist.’
‘Mr Nisbet said there was no dispute that Ms Bailey was at some of the camps, that there were photos of her holding a firearm at one and referred to her fingerprints on the gun cleaning kit…he said in summary the evidence failed to reach the test that she was a member of a criminal group.’
The judge checked that nothing was overlooked and then went onto explain one more point.
‘…when I talked about individual charges, what happened at the camps what people said to one another, the use of Molotovs and firearms and what was found at termination, and I think I said then, that Urs Signer’s scenario document was one of the most important points to the crown case…it was referred to of course by Mr Stevenson who acknowledged that it had Mr Signer’s print on it, but by way of clarification, there was another fingerprint on it. Someone else had handled the document.’
‘But what I want to say is this, and it adds to remarks about articles found in possession of alleged participants who are not present before the court.’
‘Even when you are considering the articles and documents found in possession of the accused, and I include amongst them the scenario document, it is important that you do not immediately or automatically conclude that the type represents the thinking of the group.’
‘For the purpose of determining the alleged criminal objective, it is the objective of the group and not the individuals who make it up, but of course they must have knowledge of the group.’
You must have regard to what individuals said and did, but of course, at the end the objective is what they seek to do collectively…’ ‘One piece of evidence, like the scenario document. while important, cannot be treated as conclusive for the purpose of determining the critical issue – was there a group? You are going to have to regard to the entire body of the evidence that is relevant and what you should rely on.’
‘That is what I should have said in relation to count one, forgive me for making it out of context, but it is very important for you in considering your deliberations.’
‘That concludes my formal presentation. Possibly I have overlooked something, or got something wrong and after you retire, counsel will have the opportunity to tell me if I have overlooked or forgotten something. and then we may have to get you back. But subject to that possibility, the ball is in your court.’
The judge then told the jury to take as long as they needed to make their deliberation. He stressed that it was very important that they should not feel under any time pressure. He also reminded them that it was ‘of vital importance that you don’t discuss the case with anyone else’ and that if they needed any assistance, they were to only ask.
The court crier was sworn in to look after the jury and the jury retired. The court then went briefly into chambers. The matters discussed there cannot be published, but after a brief pause the jury was called back into the room and the judge once again addressed them:
‘There are several matters that have been raised by counsel that I may not have expressed myself carefully or precisely on.’
‘First there is the issue of the object of committing violent crimes. I think I made the point to you that there was no evidence and it is not part of the crown case that there has been any actual planning to undertake to commit actual crimes other than what may have been represented by the training camps themselves, I repeat…the crown case involves an acceptance that at the time of these camps peaceful negotiations were being pursued following the developments in 2005 which included an acknowledgement by the crown of past wrongs. The crown case is that these camps were undertaken on the basis that if those negotiations did not succeed then the objective of violent offending would be or could be given…. and my direction to you is that that objective could exist notwithstanding the fact that the plan was contingent on the failure of negotiations and not advanced to a point of actual planning to commit those offences. I hope that is helpful and…the essence of what I wanted to say.’
‘There were a number of things I did not mention when summarizing the evidence of the counsel, and one was drawn to my attention was Professor David Williams’ evidence that groups who have struggled to achieve resolution for past grievances continue to use the language of struggle for revolution. I understand that evidence was put forward as part of the context in the communication held.’
‘Further it is suggested that I should clarify the way in which you may use the evidence as it relates to Urs Signer’s, and by implication to Emily Bailey’s, records and commitment to non-violence. I instructed you, that is evidence which you are entitled to, indeed obliged to, have regard to in deciding whether or not the accused committed the offences with which they are charged. Evidence put forward by the defence, on a basis that if you will diminish or even exclude the possibility of their engaging in the offending of which they stand accused.’
‘So I think, I hope, I believe that that will be the last you hear from me unless you ask otherwise.’