(Open Letter to the New Zealand Attorney-General)
Dear Mr. Finlayson,
Stay of Prosecution and Defences against Conspiracies to Commit Perjury
I am writing to request that you stay the police prosecution against me for Disorderly Behavior and Common Assault, on the grounds that:
In this case, the police had a choice, not only as to whether to prosecute, but also as to who to prosecute. They decided to go with the thrust of the witness testimony, and to ignore the circumstantial evidence, which pointed in a different direction. As you know, the police discretion as to prosecution is not generally regarded as reviewable by the courts, but this can lead to unjust and absurd consequences – especially as police officers are not selected for their intelligence, primarily. I could point to an ex-policeman who is a current Member of Parliament, and frequently seems to use words inappropriately, and to the amusement of his colleagues!
Although I was the one who called the police to the incident, because I had been assaulted, the police did not arrest or charge the other party, but arrested and charged me, instead. Although I claimed from the outset that there had been a conspiracy to commit perjury, the police told me that they had decided that one or more of the witnesses who supported their decision to charge me was “neutral”. Given the circumstances and the disclosures to date, I can only assume that their reasons for thinking that this person or these people were “neutral” was that he/they was male and boarded the train at the next station – a mere eight minutes down the line. Given modern transport and telecommunications technologies, and the fact that these people were probably all regular commuters to the same destination (Wellington), it seems to me irrational to simply rule out the possibility of a conspiracy on those flimsy grounds.
The Crown Law Prosecution Guidelines
The Crown Law Prosecution Guidelines are too adversarial, in that they contain no direction to take account of the ability of the Defence – with respect to interlocutory issues -- to mount an adequate defence. I will explain my reason for saying this under the next heading.
The obvious scenario where testimony contradicts circumstantial evidence is one where there is a "an orchestrated litany of lies", as was claimed to have occurred in the Mahon report on the Erebus crash ( see http://en.wikipedia.org/wiki/Air_New_Zealand_Flight_901 ). However, for a Defence to prove conspiracy, it would often need to obtain a court order to access third-party documents. The bar for getting such a court order seems to be set very high, because of the other people’s rights and interests (i.e. involving ownership and privacy) that would be involved. In fact, it seems that one would almost have to prove conspiracy in order to obtain the documents which alone might prove conspiracy! That is what my lawyer has referred to as a Catch-22.
This scenario has the possible consequences that:
Equality of Arms
As far as I can see, the Police can use section 33 of the Search and Surveillance Act 2012 to obtain third-party disclosure, without being hampered by the rights and interests of third parties, in the way that the Defence is, when faced with a conspiracy to commit perjury. Therefore the Prosecution Guidelines, in combination with the Criminal Disclosure Act 2008, “conspire” (as it were) to produce a situation where the Defence is at a great disadvantage, compared with the Prosecution, as regards third-party disclosure.
To be frank, I have not seen a lot of law-reforming zeal in the current government, unless it has to do with saving money. Nevertheless, this issue may make sense to the Minister of Justice, given that she is wrestling with the David Bain compensation issue, which also raises issues to do with what I could call the indeterminacy of the Criminal Law. I urge the Government to look at how to reform the law, including the Crown Prosecution Guidelines, in order to resolve this problem.
The issue I am raising is the result of a combination of legal factors, which together “conspire” (as it were) to produce a farcical and unjust outcome. Although this involves an actual case, I do not go into the facts, which are sub judice, but only into the legal principles, which lead to what my lawyer calls a Catch-22, which is about as far from the ordinary person’s – or any Jurisprudential – notion of Justice as one could possibly get.
I hope you will give due consideration to my request that you stay the police prosecution against me for Disorderly Behavior and Common Assault.