Article – Annemarie Thorby
The Crown summed up its case on Tuesday, followed by Russell Fairbrother for Tame Iti and Jeremy Bioletti for te Rangikaiwhiria Kemara.Operation 8: Day 19, March 13th
The Crown’s Closing Argument
by Annemarie Thorby
The Crown summed up its case on Tuesday, followed by Russell Fairbrother for Tame Iti and Jeremy Bioletti for te Rangikaiwhiria Kemara.
The remaining two defence lawyers will put forward their closing arguments on Wednesday.
‘This is New Zealand ‘
Ross Burns, the Crown Prosecutor, began by talking about what he described as ‘one of the most defining moments in his life’ – the Spring Bok tour of 1981.
He described it as the moment that ‘we realised we were not all one happy, homogeneous people’.
People held ‘different views and the different views led to violent clashes’.
‘I remember seeing footage on TV of the Red Squad and protesters. I saw it, but it was very, very difficult for me to believe it was happening because that was not the New Zealand I knew, not the New Zealand I grew up in….But it was happening, no matter how much I wished it wasn’t. It was there and I had to deal with it, and every other New Zealander who was around also had to deal with it.’
‘It was a realisation that there were different views, and different ways of expressing dissent and political views in New Zealand.’
Mr Burns likened it to the witnesses called yesterday by Urs Signer, and their reaction to the video footage. He said the witnesses ‘know and respect Mr Signer for the person they know him to be. But they can’t reconcile him with that person in those videos. They couldn’t believe the evidence in front of their own eyes’.
That issue, said Mr Burns, ‘underpinned an aspect of the case that he wanted to address the jury about’.
‘This is New Zealand and we like to think New Zealand is a place where these sort of things shouldn’t happen. Most New Zealanders live here because they can feel safe and away from the turmoil that engulfs the rest of world….But this case can be the same turning point for what we felt in 1981, no matter how much we wished it didn’t happen – it has…’
The task of the jury, said Mr Burns, was to look at the evidence and to say that this has happened in New Zealand. ‘We have pictures to show that it happened.’
The question for the jury, ‘is what does all this mean, what is the reason?’
Mr Burns said the Crown, among other things, had evidence of people patrolling through the bush, throwing Molotov Cocktails near Ruatoki, having armed patrols down by Whetu Road, practising extraction around cars and that there was semi-automatic gunfire heard.
However, his plan of attack was ‘to start at the other end and to tell the jury what it does not mean. But first, he said, he wanted ‘to put it into some sort of perspective’.
Plan B in Perspective
‘We have heard a lot of evidence from people who know Tame Iti, and make no mistake about it, Tame Iti is the leader, the planner of these Rama, these camps. ‘
‘The Crown has given evidence that opens up a curtain to a life in New Zealand, a life that many of us would be unaware of.’
‘We have heard people like Tamati Kruger talking about the long held grievances of the Tuhoe people. The Tuhoe kaupapa that engages in a history of betrayal, indifference and discrimination. He told us about a history of oppression, and he, the modest man that he is, he who represents 97%, said he would find it reasonable to find these people in a state of hatred.’
‘Now hatred a very strong word, hatred conjures up extreme…and leads to deep and profound anger…hatred leads to violence. You don’t need to hear evidence about that, all you need to do is look around the world and see evidence of hatred. This morning you would have seen on the news rockets firing into Gaza….’
‘Hatred is a poisonous forces and hatred leads to violence.’
‘The Crown case is that is how we came to where we are.’
‘Tame Iti is a passionate man…but he is also a man who is at the extreme. His actions are described as extreme….there is public activism effectively designed to shock, but behind that is the private that embraces the other…there is a Plan B.’
‘He is a man prepared to resort to Plan B, prepared to implement it, and is doing so through the training camps that we have seen footage of throughout the trial.’
Mr Burns then asked the jury to come back from ‘that more philosophical overview’ and that he was going to talk to them about ‘the more mundane evidence of the case’.
He reiterated what he had said on the first day of the case, ‘you (the jury) are privileged, you are the only few in this country who have heard everything. That is the basis on what you make your decision. You are making your decisions based on the evidence placed before you.’
‘There has been a lot of evidence placed before you, in what may be a laborious way, but there is no way around it. There are many cases where people come and say what they have seen and observed….but here the case is before you.’ Mr Burns was referring to the DVDs, chat-room logs, texts and other evidence presented by the Crown.
The evidence was presented in a chronological path, explained Mr Burns. ‘So at times the police have given evidence that they are personally not acquainted with. You can recall times people have given evidence about things…that is not before them, for example, chat-room attribution. It was done to keep it in chronological order and to make it clear to you.’
However, said Mr Burns, ‘none of that is in dispute in any event. There has been no serious attack on attribution of the chat-logs. When the chat-room log says it is Tame Iti, that is who it is.’
‘The photos speak for themselves, you can’t erase a gun out of evidence.’
‘They are real evidence, you have not only seen what people wore, or photos of actual weapons, but you have seen what they did. You have seen footage of them actually committing crimes that the Crown says they did.’
‘That evidence is undisputed and is indisputable.’
‘Even the evidence of the two brothers who went to the camp with Tame Iti, and the evidence heard there about training for urban warfare, that was not disputed.’
‘So we have a large body of evidence, and, to a great measure, that is undisputed evidence.’
‘The issue is what it all means. What is the explanation for what we are seeing?’
‘Is it for training up so they can commit serious and violent offences when the need arises or is it harmless waananga?’
‘But Plan B was the Objective’
‘First I want to talk to you about what the case is not about. It is like when you do one of those diagrams and draw two big circles and see where they interlock….In this case you have two large circles and they barely touch.’
‘For example, you have heard a lot about Tuhoe grievances from two academics and the man on the ground, Tamati Kruger, who knows what he is talking about. And he is passionate about what he does.’
Mr Burns then talked about how there would be a ‘vast number of Tuhoe people who would find Tame Iti’s actions utterly unacceptable.’ He stated that ‘utterly unacceptable’ were the words used by Tamati Kruger.
He returned to a point he had put to Tamati Kruger on Day 17 of the trial. That there is a 97% mandate for Tuhoe to pursue a peaceful process to settle the grievances they have with the crown.
‘The 97% of people want peaceful justice…but the other 3% are not prepared to wait for generations. Tamati Kruger and the others are prepared to wait.’
‘…there is this history of loss and betrayal, so I say for the others (the 3%), the belief is that peaceful resolution may never happen…There may be need for a Plan B.’
‘That may also be why we have not heard any evidence of any specific crime…the reality is that the Crown can’t say that these people were intending to blow up Parliament or tear down war memorials. The point of that, is the catalyst…may not have occurred.’
‘The path for peaceful resolution in 2006 and 2007 was still being pursued.’
‘But they were not saying there was not a need for people preparing to go to war if they had to. So peaceful resolution for sure, if it can be achieved, but Plan B was the objective of this group.’
‘We have heard a lot about Tame Iti’s public activism. Tamati Kruger himself, says that Tame Iti makes people uncomfortable. He said that in his own sense makes Tame Iti makes him uncomfortable.’
‘But what we are talking about here is not highly public activism, for example shooting the flag. What it is we are talking about, is very, very private. It is taking place in an area where they had every reason to feel secure. It is taking place in an area where people were wearing balaclavas to hide their identification from each other.’
‘You may recall Rau Hunt (on Day 16) saying that all the people there were wearing balaclavas and scarfs. When the two brothers went up there, they had to wear a scarf. The only person not wearing some sort of scarf was Tame Iti, but more to the point he was the person organising it.’
‘We see it again in the chat-room log from the Otautahi man…Tame Iti was the one recruiting. Everyone there knew Tame Iti was there, but the others were hiding their faces from each other.’
‘It is not public theatre; it is private and secret talking place away from the public.’
‘It is not about training Tuhoe youth in survival. We had a military expert saying that these were armed patrols….it is not about survival in the bush. We had Molotov cocktails and likewise, with thermite bombs that are capable of melting through the engine of a car. That has no place in survival skills. Most people in the camp were not Tuhoe youth, one of the brothers described most people as over 30. And people were from all different backgrounds, Pakeha, of Mediterranean heritage…all shapes and sizes.’
‘When the Carter brothers were there, there was an ambush, the car was stopped, shots were fired. These two boys, don’t forget they were only 14 and 16 years old, shots were fired and they were put on the ground and frisked. Afterwards someone told them that the practise was ambushing a vehicle.’
‘Rau Hunt gave evidence that he never trained in that, because it has nothing to do with security.’
‘You can look at patrolling, that is not personal security. It is basically aggressive military style actions, there is no room in that for bush-craft.’
Mr Burns then talked about the security contract that Tuhoe signed with PF Olsen in 2007, the logging company operating in te Urewera. He asked ‘what security do you apply for nicking diesel from the bush? Not Molotovs and balaclava. It is not the way it is done, not the way it happens.’
He said that Tame Iti had deceived Tamati Kruger, that he was not running any waananga, ‘no bush-craft’. He was ‘training people in military tactics with the objective of violent and serious offences’. Mr Burns said that ‘Tame Iti said that not only to Tamati Kruger but to others and certainly to Rau Hunt….He also deceived the Personal Trainer and the two brothers in going up to demonstrate the things.’
‘There is a public aspect and also a private one. The private includes deception.’
‘One excuse is training for close personal protection in Iraq. Both Rau Hunt and the military expert said no one other could do that sort of job. They need to be highly trained, not a couple of people from Wellington who belonged to Peace Action Wellington, or a computer person from Auckland.’
‘Firstly, they are not the sort of people able to get that work, but also they are not the people who want that sort of work.’
‘Some of the defendants and the co-accused marched against the war, so they are not going to go over there guns blazing to look after the American interest in Iraq.’
‘The military expert himself, said he had close protection. If it is good enough for him, it is good enough for the leader of the the Revolutionary Wing of Aotearoa.’ Ross Burns reminded the jury that the term ‘the Revolutionary Wing of Aotearoa’ was used by Tame Iti in computer chats with the Otautahi man.
No Dispute About Identification
Mr Burns said this case is not about identity.
‘There has been no dispute about their identification at the various camps or in the various chats. None of the weapons found at termination have been disputed. There has been no dispute over the shells and cartridges found after the camps. There are no disputes about Emily Bailey’s thumbprint on a gun cleaning kit. There is no dispute about Urs Signer’s palm print on the scenario document. These are indisputable and so there is no argument about them.’
‘The same however, can’t be said about Tame Iti.’
Mr Burns then reminded the jury that Russell Fairbrother had said that one person shown in footage from the September camp, was not Tame Iti. However, Tamati Kruger had identified him.
Mr Burns also spoke about the issue of the address in Ruatoki associated with Tame Iti. He said that, ‘Tame Iti is trying to distance himself from the guns found, from what is going on at the September camp.’
Questions about identity had also been raised with regard to the record in the chat-room logs said Mr Burns. One chat is between the Otautahi man and the Crown alleges, Tame Iti. Mr Burns said in the chat there is talk about what ‘the aspirations are for Tame Iti and his group. It is an attempt to recruit that person to come to Rama…’.
‘It is written by Tame Iti…he didn’t want to disclose himself on-line so he talked about himself in the third person. He was carrying out recruiting.’
‘There is no dispute about the identification of any of these people in the case.’
Mr Burns also said the case is not about police surveillance of protesters and activists. It was an issue raised several times during the case by the defence.
‘The case is not about what police may have thought. There have been quite a lot of questions about police surveilling protest groups, those questions have got nothing to do with it. What the police think has nothing to do with it, the same for me.’
‘What is important is what you think – you have been called on – do you accept the Crown case? It is your decision, your decision alone.’
What were they thinking?
‘So that puts aside what this case is not about. It brings us back to the body of evidence which is largely undisputed…we have different aspects of evidence: guns, shells, uniforms, walkie-talkies and a police scanner. All stuff used in order for these training camps to take place – that is one type of evidence we have.’
‘The second is the footage, we can see what the people were doing.’
‘So you get what they used for criminal activity, and what they were doing.’
‘The third aspect is different: what were they thinking ? What did they intend?’
‘It is trite to say (you) can look into a person’s mind, and see what they were thinking. But you can look at how they were expressing themselves. You have a large source of information to enable you to determine what was going on.’
‘I hesitate to use the word context, it has been used so many times in this case, but it is important. We don’t just have uniforms, guns, people patrolling or throwing Molotovs. We have text messages, chat-room logs, a thermite bomb recipe and a chat between one of the former co-accused and Mr Kemara about that thermite recipe.’
‘Those sort of things point to what their intentions were.’
‘You have a pile of material that may not seem relevant, but it gives you insight into what people were doing and why.’
Mr Burns said that he had already spoken about Tame Iti and what he was doing, now he was going to speak about the other three.
‘te Rangikaiwhiria Kemara ties to Tuhoe through Maniapoto, but he also clearly has an interest in self-defence training and weapons and things political.’ Mr Burns pointed to both the Zapatista book and the Sinn Fein anti-interrogation booklets found.
‘We do not condemn people in this country for what they think, but what they do. But when you are thinking about motives and reasons, we have a whole lot of material you can take into account.’
‘We have witnesses, but only three eye-witnesses…we didn’t just have police lying prone in the bush listening to gunshots flying overheard, but we also had the brothers and the gun-shop owner talking, the gun-shop owner said he had sold Mr Kemara some weapons. We also have had evidence from Rau Hunt.’
‘There are also a couple of documents that are very important.’ Including the scenario document which talks about things like blowing up bridges and eliminating guards and there are pages from the late Tuhoe Lambert’s dairy.’
‘And finally there is the expert evidence from the soldier…he said some of the video footage was consistent with close personal protection training but he also pointed to some that were not…he said that group patrolling was improving, that there were more weapons, that the skill level was getting higher.’
The Evidence in a Folder
Mr Burns then presented to the jury a special folder for the jurors, it broke down all the evidence by count and also by charge. Members of the public and media could not see what was in the folder.
Mr Burns went through the evidence for each count. He said there was a theme of urban warfare, and spoke again about scarfs, the thermite reaction recipe, the Revolutionary Wing of Aotearoa, Plan A and Plan B, ‘extra training for those keen to rumble…’, ‘training to smash the system’, the quote about ‘training to kill if have to’, chats and texts organising dates for Rama, a meeting in Wellington about self-determination.
He said that, ‘if you look at these four people, together with Tuhoe Lambert, they played significant leadership roles in these things happening’.
Count one that the four people face is section 98A of the Crimes Act, it is the charge of ‘Participation in an Organised Criminal Group.’ Mr Burns said the charge ‘requires people preparing to commit serious and violent offences.’
The evidence Mr Burns used to support this charge included quotes from chat-room logs that the Crown alleges Tuhoe Lambert made. He also referred to Tuhoe Lambert’s diary. The article written by Emily Bailey in a zine was also referred to, Mr Burns said that it identified the three stages of revolution.
Going Through the Charges
In the folder was also an overview of the charges. Mr Burns said he had prepared it for the jury. He explained that the judge would give a summary before the jury retired and would set out the legal requirement for each charge. ‘So this is just an overview for you, to tie the evidence back to what you see.’
He explained that Section 98A is to know that a group of three or more people are in an organised criminal group and have the common objective to commit serious and violent offences.
‘A person can be liable if they participate, know it is a group, and know that their occurrence participates to illegal activity.’
To prove that there were at least three or more people involved, Mr Burns pointed the jury to photos taken at the different camps.
He used the scenario document to try and establish the objectives.
He listed the serious and violent offences as murder, arson, intentional damage, endangering transport, wounding with intent, aggravated wounding, discharging a firearm or a dangerous act with intent, using a firearm against a law enforcement officer, and finally kidnapping.
The scenario document was the source for most of the offences. He said these ‘scenarios were planned around the Ruatoki area…’ and then proceeded to read through the scenario document and to explain the other evidence associated with each offence.
As to participation by the four defendants in the group, Mr Burns said ‘they were heavily involved. There are pictures of them at various camps, we have texts…we have surveillance images of people travelling to camps and well, the familiar image of two boys walking through the bush. Of people in a patrol of 26 persons and Mr Kemara, Mr Signer and Ms Bailey were in that patrol.’
‘We have heaps of pictorial images of their participation, but they were…not just participants…they weren’t just foot soldiers. They were active in organising camps…’
The criminal activity leading to the objectives, Mr Burns said were the Firearms offences. He explained section 45 of the Arms Act.
He used the analogy of a bank robbery to explain the different ways of being in possession.
‘Someone organises the bank robbery and knows that the people are likely to take guns. That person is then liably criminally for possession of that gun even though he or she did not touch it and were maybe not even present. You do not need to be physically in possession.’
He explained how with the Arms Act the ‘onus is on the defendant to say that they had a gun for a lawful purpose.’
Mr Burns did point out that Mr Kemara had a firearm’s license, as did some of the co-accused, people who were previously charged with Firearm Offences only.
‘But while that firearms license permits him to buy and hold firearms, it is only lawful possession. If he uses them unlawfully, having a firearm license is no excuse.’
A license ‘facilitated him getting guns and bullets in the first place, but it offered him no excuse.’
Back to Plan B
Mr Burns then returned to the fact that there has been ‘no clearly defined crime that was planned.’
He explained that, ‘this training was not for a specific purpose…and that is not essential in proof of the Participation charge. The Crown has to prove the objective of violent serious offences’ and again Mr Burns read some of the chat-room logs and texts.
‘All this evidence you have heard, what explanation is there?’
‘You may decide there isn’t one…it was all to raise awareness of bush-craft, or close personal protection in Iraq…but these things are untenable.’
‘On behalf of Tame Iti, he is strong in addressing Tuhoe’ grievances, he would do nothing to jeopardise the negotiations…it was going ahead…barring the odd hiccups like the betrayal to return te Urewera But as Tamati Kruger acknowledged they could wait….These camps began in 2006, the negotiations began in 2005. At that stage people didn’t know when and how long the negotiations would last. That is why they needed Plan B, why steps to implement Plan B were needed.’
‘Tame Iti didn’t want to jeopardise peaceful negotiations, but he was prepared to act if not.’
‘With the others it is hard to say.’
‘Mr Kemara had an interest in this type of thing, he had sympathy with the cause of Tuhoe and had sympathy with revolutionary groups in other countries.’
‘With Ms Bailey and Mr Signer, we know only that they are committed to their beliefs and are prepared to sacrifice themselves for their beliefs. They put themselves totally into what they believe.’
‘They believed in getting involved with what Tame Iti was getting into.’
‘The only other arguments raised by their witnesses, were ‘I can’t simply believe my eyes’…’
Back to 1981
In his closing remarks, Mr Burns returned to the subject of the Springbok Tour of 1981.
‘I put to you, you can’t put it to one side because it is too hard to believe. The same way in 1981, people didn’t want to believe, but came to believe them because they were true.’
‘In this case you must believe it because it is true. If it is true, then these defendants committed the offences the Crown has charged them with.
Mr Burns then sat down, his closing argument was over.
(the case continues0