Article – Annemarie Thorby
A lot of people are following the story of the ‘Urewera’ case in the Auckland High Court. This is the trial of the four people still facing charges as a result of Operation 8.Operation 8 and Section 98A: ‘Participation in an Organised Criminal Group’
by Annemarie Thorby
A lot of people are following the story of the ‘Urewera’ case in the Auckland High Court. This is the trial of the four people still facing charges as a result of Operation 8.
Operation 8 began in 2006 after police say they became aware of quasi-military style training camps deep in te Urewera. The termination of the operation was on 15th October 2007 when, after months of heavy surveillance, over 60 homes were raided up and down the country; Ruatoki was described at the time as being ‘locked down’ and 18 people were arrested. One pleaded guilty to a minor cannabis charge and the 17 others were remanded in custody whilst the Solicitor General decided whether 12 of them could be charged under the Terrorism Suppression Act.
They were not, and all were released on bail facing only Arms Act charges. Four more people were arrested over the following months. Thirteen months later, five of the original group were then further charged with ‘Participation in an Organised Criminal Group’ (s98A, Crimes Act 1961).
In September 2011, four years after the raids of October 15th, the Supreme Court ruled that some surveillance by police during Operation 8 was done without a legally valid warrant. The video evidence gathered that way was therefore ruled inadmissible.
Days after the result of the Supreme Court decision, people charged with only Arms Act offences had all charges dismissed in the Auckland High Court. Without the video evidence, there was insufficient other evidence to move forward with the prosecution. However, the same evidence was admissible for those charged with ‘participation’ as that is a more serious offence.
The result was that only four people from the original group – Emily Bailey, Tame Iti, Te Rangikaiwhiria Kemara and Urs Signer are now in court. Tuhoe Lambert, one of their co-accused died in July 2011.
Charges have not been dropped against Tuhoe, but proceedings have been stayed. He has been attributed a role in the ‘organised criminal group’ and evidence gathered against him is being used to help prosecute the remaining four defendants.
The four are charged with various Arms Act offences and the more serious one of ‘Participation in an Organised Criminal Group’. They can be sentenced to up to five years in prison if found guilty, and the prosecution have already said they will be asking for the maximum sentence. (Since the defendants were charged, the sentence for this offence has been increased to ten years.)
The case began in the Auckland High Court on 13th February, and since then a lot of people have been asking what is ‘participation’. It is a difficult charge to understand.
‘Participation’ – a lay-person’s guide
The charge of ‘Participation in an Organised Criminal Group’ is complicated, but the crux of the matter is that to be charged with ‘participation’ you have to know that: three or more people (the ‘organised criminal group’) have a common objective to either:
1. gain materially through committing offences that are punishable by at least four years in prison OR
2. to commit ‘serious violent offences’. (These offences are defined as ones carrying a minimum of 7 years imprisonment AND involving either the loss (or risk of loss) of life, serious (or risk of) bodily injury, serious damage to property which can endanger someone, or perverting the course of justice by obstructing the investigation of any of these so-called ‘violent offences’)
You do not have to yourself believe in the common objectives. But you have to have known (or acted recklessly and allowed):
1. your conduct to contribute to the occurrence of any ‘criminal activity’ AND
2. you knew that that ‘criminal activity’ that you contributed towards could (or were reckless in allowing the possibility that that criminal activity might contribute towards) aiding the group to achieve their objectives.
So, you do not have to have committed any actual ‘criminal activity’ to be charged with participation, you do not have to be a member of the ‘group’, nor does the ‘group’ have to have achieved one of their objectives or have concrete plans to achieve it. The group must merely have the desire to do so. There does not need to be proof of any actual crime committed.
Thus, at the minimum, you have to have known that the ‘organised criminal group’ existed and recklessly let your conduct contribute towards ‘criminal activity’ that can or could have furthered the objective(s) of the group.
This Case – the Urewera 5
With regard to this case, the Crown is alleging that the ‘organised criminal group’ is a group of people attending military-style training camps near the township of Ruatoki.
(Many of these people were either never charged with any offences or had all charges dismissed in 2011).
The Crown alleges that in 2006 and 2007 this group of people met now and again, with different people present at different times, and that the group had the objective of seizing by force an area of land, believed to be within the tribal lands of Tuhoe, through serious acts of violence’. (Sian Elias, Supreme Court Judgement, SC 125 2010 Omar Hamed and others v The Queen).
The objective has also been referred to at times as an objective to commit murder, arson and to use guns against the police.
The four people currently on trial in the Auckland High Court, along with the member who died, are alleged to have ‘participated’ in this ‘organised criminal group’. The Crown put forward evidence that they arranged times and dates for the camps and also transport to and from the camps.
But the Crown in its opening statement to the jury also said that these people actually had key roles: Tame Iti was supposedly the leader of the group, te Rangikaiwhiria Kemara was the weapons supplier, Tuhoe Lambert was the training officer and Emily Bailey and Urs Signer were the Wellington coordinators.
The Crown finished presenting its case on 6th March and the trial is now winding up with closing arguments.
I do not envy them – or anyone – having to fight a charge of ‘participation’.
‘Participation’ – a Background to the Offence
I can recall when ‘participation in an organised criminal group’ was first introduced in 1997. At that time there were a few of us who said that the charge was one of many that was chipping away at so-called ‘civil liberties’. We argued that sooner or later its scope would be widened and that sooner or later it would be used against activists.
We were right on all counts.
What is being used against these four activists is not the original 1997 version, but a version that was amended in 2002 (the 2009 amendment focused only on the punishment).
In the original version, to be charged with this offence, you had to be an actual member of the group; you had to support the objectives of the group, and at least three members of the group had to have been previously convicted (within a specified time frame) of certain serious offences (offences which all carried a sentence of at least 10 years prison).
Under this version, between 1997 and 2002, there were only 16 prosecutions resulting in 2 convictions.
In the new amended version, it is enough just to know that the group existed, that the group had ‘illegal’ objectives and that you ‘recklessly’ participated in the group. No actual ‘serious offending’ has to have occurred or even been concretely planned.
Statistics show that in the three years after the 2002 amendment, there were 402 prosecutions and 47 convictions.
The New Zealand ‘Participation’ charge has been criticised in legal journals on the grounds that it extends criminal liability too far. Lawyers and legal experts have argued that ‘participation’ is not adequately defined. In New Zealand you do not have to be an active participant in the ‘organised criminal group’, you do not have to be linked to any specific criminal activities of the group.
There has been debate in law journals that it is possible just to be the mechanic who happens to fix a motorcycle gang’s bikes.
Further the ‘organised criminal group’ does not have to have be structured in any specific way. Membership can change and fluctuate over time and not everyone has to be involved in the ‘planning, arrangement, or execution’ of any activities that the group does or plans to do or wants to do.
‘Recklessness’ is also an element that is criticised. You have to know that the ‘organised criminal group’ exists, but you do not have to have deliberately aided them. Maybe a blind-eye was turned or you were not fully aware of the consequences of any activities of the group, but ignorance is no excuse.
The NZ Law Society in 2002 argued that ‘recklessness’ could allow family member or business partners to be charged as participants. You can be guilty by association.
Tellingly, this law has been described as harsher and stronger than its equivalent in both Britain and the USA. In New Zealand it is a lot easier for the Crown to prosecute people under this charge than its equivalent overseas.
In New Zealand it is possible to charge people who are participants in a social action group.
Taken to its extreme, people concerned about ‘civil liberties’ say that this law is little more than a ‘thought crime’. It allows people to be prosecuted for having dreams and beliefs and without doing anything substantive to further those dreams. We can be prosecuted for wanting a different world.
This law scares me.
Annemarie Thorby is a teacher activist and freelance writer accredited to cover the Operation 8 trial for Scoop.co.nz