Urewera 4: Day 20 - There was No Plan

Operation 8: Day 20, March 14th

Val Nisbet's Closing Argument: You Can't be Criminalised for your Thoughts

by Annemarie Thorby

The last defence lawyer to present their closing argument was Val Nisbet, the lawyer for Emily Bailey on Wednesday March 14

He said that was he was going to 'begin with where Christopher Stevenson left off', but first he had something important to say:

'... I have been doing criminal trials for a few years now and I don't think I have ever done a trial where nothing happened. This is my first.... In eighteen months of police surveillance and investigation – nothing happened. And there were no plans for anything to happen, and the Crown conceded that.'

'The Possibility of an Objective'

'...but what the Crown is saying, is that Emily Bailey is a member of an organised criminal group that had, as their objective, the actuation of serious violence in the streets of New Zealand. It seemed to be at the opening that that was a given, that was what the accused were going to do....But yesterday there seemed to be a change in the way the Crown was presenting their case...their use of serious violence became conditional on the failure of a peaceful resolution between the government and Tuhoe.... It was conditional. So what does that do with the objectives that the Crown talked about for the last four and a half weeks?'

'It has changed to just the possibility that the group will go out on the streets and cause crime. Does that make it an objective or a possibility of an objective?'

'Te Rangikaiwhiria Kemara's lawyer, Jeremy Bioletti, says the case should be kicked to the curb. I say it should be picked up out of the curb and taken to the dump.'

The Evidence is not Enough

'Now before I start talking about Emily Bailey's part in this trial, there are some fundamental elements that are relevant to a trial. There has been some mention by others, but they are vitally important.'

'The first and most obvious thing about these people, is that they come into the dock presumed to be innocent and that is how it should be....And that is how it is....And it is up to the Crown and the police and the State to prove – it is up to the State. They have the onus of proof. An accused person doesn't have to prove anything at all....It is the prosecution that have to prove the case. They bring the charges and it’s their evidence that should satisfy you that the Crown got it right.'

'I say it now, and again and again, their evidence is not enough.'

'The onus of proof rests on the Crown in all trials... and it makes sense. That's where it should be.... That is where the onus should lie.... The standard of proof that the Crown must reach in all trials, is beyond reasonable doubt.... It's the highest standard known to law...'

'It shouldn't be easy in a criminal trial. It shouldn't be easy, it should be tough... And that is how it is, and that is how it should be.... The highest standard known to law.'

'In civil jurisdiction it is different.... And this is one step up and it is vital that you appreciate that.... And that makes your task a difficult one, especially in this case....where the evidence doesn't even reach the civil standard in my view...'

'You have to be firmly convinced that the Crown is right.'

'For example when the Crown prosecutor, Ross Burns, opened the case, he said the thermite bomb recipe was found on one of the formerly co-accused's desk....It would suit them if it was, but we know it was found in a cardboard box at the bottom of some shelving, underneath a tupperware container that obviously contained papers as well...'

'And what is intriguing about that evidence, is that they returned it to the owner well before this trial.'

'So you can see the importance of the quality of evidence the Crown produces. It has to impress you....Now if the Crown says it was found on a desk, that may be important. But here we don't even know how old the evidence is....'

'Another example is the brothers. A year after they were there as children, they were interviewed by the police. After all the publicity about the accused....And four years later they came here, and gave evidence.'

'So how is that reliable?'

Mr Nisbet then spoke about the importance of the Crown's evidence and the Crown's bias and prejudice.

'Bias and prejudice....what happens?….Being on a jury is one of most solemn obligations of citizenship, and it is....And we appreciate it as lawyers because we believe it....they get it right...twelve or eleven of you – the collective common sense. And you now are judges and you have to behave like judges... So any prejudice or bias you have in relation to anything: race, gender, tattoos for example, you have to put them aside….And what you have to do is be dispassionate... and this case has a lot of passion about it. But you have to be dispassionate...and use your collective common sense.'

'And I believe if you do that, you can see through the sham of the case the Crown presents.'

'You are the judges of the facts....the judge is in charge of the law....If I say something wrong, the judge corrects me – but you have sole responsibility for the facts. And those facts have to be clear in your mind....And I say again, you are going to find it hard to find that the facts the Crown rely on are proven...'

'When you go and deliberate and reach a verdict, it has to be your verdict....And each of you has to be true to the oath and affirmation you have taken.....And your beliefs are as important as the person next to you. And to that end, you stick to them... .because it happens to be an agreement between you all.'

People Can't be Criminalised for What They Think

'When the Crown prosecutor, Ross Burns, opened his case...he said we don't prosecute people for what they believe in....We prosecute people for what they do....We prosecute people for doing criminal offences, and that is what the Crown says happened here....It is obvious what I say happened here.'

'I want a revolution...of power structures, of cities, of everything. I want a world without oppression...a world with negotiation for all...a world of consideration for others...and everything around us.... Socially and collectively working together for a revolution seems sensible to me...lets work together for a better world...bind our skills to work together...to have fun on the way...those are Emily Bailey's words...words in the article we were read by the prosecution...'

'They are thinking and thoughts...and as Ross Burns has correctly said, people can't be criminalised for what they think....And she is a young woman who does a lot of thinking. A young woman showing her concerns about people....passionate about her concerns....she gives herself to those concerns...still does and did at the time....You only need to go through her diary to see how busy she is, and you will get the opportunity to do that...She was involved in so many organisations...all of them non-violent....She was saving land from mining, people from war, people from starving...doing her utmost to ensure that the oppressed and less privileged got what they deserved.'

'Her revolution is not at the point of a gun, and it would be absurd for you to think it was at any time.'

'Emily Bailey is a young mother. She is now, and was five years ago, a young passionate woman, a protester and activist....It is interesting that Ross Burns raised aspects of the Springbok tour and wondered why it was happening here....Well, it happened here and in England and Australia, because the politicians encouraged it, along the way with the rugby supporters....It was going to happen...but an observation you could make is that the protesters had no weapons, the police had the weapons...'

'Those people who led those protests are passionate about their politics, and you may have heard some of them. The man Alex Shaw, who ran the Wellington protests, he now sits on the parole board.'

'So people like those protesting are a must for any society....without them we make no progress. We don't change, we don't get better.'

'People down the track, like Emily Bailey, end up as politicians or as members of a party and contribute in a real way....but I am not saying that she doesn't do that now – we know what effort she makes.'

'Just an aside about words and the deep impression words can have...Michael Laws, as a controversial politician and now radio host....he said on air, 'if he had gun he would shoot them put them out of their misery...' He was talking about the Herald on Sunday, saying '...why people haven't taken a shotgun there and cleared out the entire newsroom....'

'Now, I don't think it is as funny as the chat between Tuhoe Lambert and the others....I think that is pretty funny and is worthy of a script of Billy T. James from a few years ago....It is nothing....Words as empty as Michael Laws' words.'

Constant Surveillance

Mr Nisbet then said he wanted to talk more about Emily Bailey as a person, '...so you can get a sense of how she fits in...'

'...She is someone without a cellphone and has no computer...because she had none, her communication was with Tame Iti on a couple of occasions to check dates dates....right....and also there was innocuous communication between her and her partner.'

'There was a gun and there was her writing....But does that make her a leader, an organiser of this dangerous group?'

'Why did she get involved?'

'What happened on 9/11 heightened people's fears...New Zealand was no different, it involved a lot of new rules for people...for example, we were not allowed toothpaste in a bag....We became fearful and the paranoia grew amongst law agencies...and we can have sympathy for them, because it may have been a frightening time.'

'So what happened in NZ?....The SIG was formed, and the police were set up to concentrate on the activities of people that were a risk to the stable structure we have in this land of milk and honey....so people like these, and many others, I think....people who opposed things like mining became subject to pretty constant surveillance by police.'

'So those activists who expressed their concerns for others, became under a level of surveillance you might expect in the Eastern Block from some years ago...phone tapping for example.'

'You couldn't buy a local paper without getting photographed.'

'Police wrongly saw their role as protecting the country...it is their perceptions that saw many others in the same pot....It was not just these to be spied on...'

'Any club, any interest that the indigenous people have to advance their well-being, you can bet your bottom dollar that the SIG was looking into their activities.'

'And then two years after their investigation, they entered at 6am residential addresses around the country, eighteen people, were arrested....And of those eighteen, we have four left....And they, the Crown says, are the leaders.'

'So the Crown says these four, with Tuhoe Lambert, were an organised criminal group with the intention to carry out serious and violent offences and offences against the arms act.'

'But back to Emily Bailey....Much like Urs Signer's lawyer, Christopher Stevenson, said, she is a good person, a hard-working person. She is an activist with no previous convictions, who it would seem could not hurt a fly...'

'The firearm found at the camp where she lived...it was in a backpack associated with her....There were no fingerprints on it...it was broken down and there was no ammunition.'

'There was no evidence that she knew it was there...'

There was No Plan

Mr Nisbet then began to talk about the charges that the four are accused of.

'In relation to Count One...I have already mentioned how the Crown approached the operation and what their objectives were....their evidence was not good....And now we have a situation where their objectives could be fulfilled sometime in the future...in the future when Tame Iti is ninety...and Emily Bailey is a lot older than she is now.... It doesn't make any sense....'

'I said already there was no plan. The police found no plan, none at all. After all that time investigating, there was nothing they could say or see that was going to happen....So they just had to stop it, they had to end it...because it must have been using a lot of money following and filming all this time...'

'We don't dispute that Emily Bailey was at some of the camps, with a gun...but there was nothing associating her at all with the October camp....There is film showing her getting out of a van with a firearm, but it is interesting that it not the firearm found at her address.'

'...the exchanges she had with Tame Iti were organising for herself, and maybe for others, but that does not make her a leader and organiser.'

'There was no communication between her and Te Rangikaiwhiria Kemara on the computer. There was no communication between her and Tuhoe Lambert on the computer. She didn't have a phone...it is hard to imagine that someone who the Crown says was part of some criminal group doesn't have a phone...'

'The fingerprint on the gun cleaning kit at the house in Ruatoki, she may have cleaned a gun, she may have moved it possibly....but we know she was in possession of that gun at the camp, at the waananga, but there is no evidence that she was there for an unlawful purpose.'

'These activities were an opportunity for lots of people to meet and talk and rant about certain things and discuss politics ...They were not opportunities to plan serious and violent offences.'

'...her activism...is a positive thing...Her involvement in multiple causes suggests that she is unlikely to be part of a criminal group....But the point is, there is no organised criminal group.'

'I want to remind you how serious these charges are...of what these people wanted to commit. Crimes of murder, the most serious on the books...and people like Urs Signer and Emily Bailey contemplating that possibility....As Christopher Stevenson said, it makes no sense.'

'There is no evidence from the Crown of whom they were going to murder, no evidence about which buildings or whose flesh to burn...'

'Ross Burns described the plans yesterday as in their infancy...as still being pursued....Plans in their infancy....There were no plans.'

'There is nothing associating her...so the only exchange she is involved with are those with her partner, Urs Signer, and a couple with Tame Iti where she simply seeks confirmation of dates, dates for the rama or waananga...because she was busy.'

A Passionate Person

'Emily Bailey got involved in many things…'

'In cross-examination, there will be an article that you will have the opportunity to read...”The Real War of the Roses”. It is essentially about Emily and others in which they try to beautify the city...by packing seeds in clay and throwing them into areas of the city that need beautifying....There is a comment in the article by an English man, he was pulled over and searched under the Prevention of Terrorism Act in the UK....I suggest you read that and discover how passionate she is about her causes...But she is certainly a lot more concerned about flowers and beautifying than killing or maiming.'

'She was concerned about the saga of Louise Nichols...and the patch was about animals...'

'She was engaged in Wellington Peace Action, and she was concerned about animal warfare...She was worried about the environment.'

'She has a Geography and Environmental Science Degree from Victoria University. She is a film producer and a yoga instructor and she helps with child care. She helps with not only her own child, but helps others in the community...and she is a trustee at Parihaka.'

'So in context you can get a pretty good impression of what Emily Bailey is up to....She is definitely not a member of an organised criminal group....She is not a leader of an organised criminal group....She is a passionate person about the environment, about people, and social justice....And she is also well known to the police because of her commitments...well known to the Special Investigations Group....But without people like Emily Bailey there would be no social change, no positive change.'

'She puts her mouth where her heart is...she seeks a way, among other things, of changing people's minds...She seeks greater involvement in communities...and seeks to right the wrongs....She can't be punished for that. She doesn't see change at the point of a gun.'

No Secret

'I just want to say something about the so-called secrecy of the camps...In some of the visuals we saw...you saw a crane working and you saw cars. So a lot of this activity was close to a very small community...close to Ruatoki. So if there was an influx of visitors, if ten or so cars come in...everyone would know about it....If there was the sound of gunfire...if people were walking about...you are sure that everyone knew about it. And we do know that from Tamati Kruger. So it is hard to see how the Crown can say to you that this was a secret...that there were organised secretive Ramas...secret camps...because they weren't.'

'Perhaps it shows that the locals didn't care about it....They knew these waananga were happening there...some may have joined, some not. So it is not a secret.'

'The only secret thing about it, is where the cameras were...where the police were...'

'So in summary about Emily Bailey, she is not the member of an organised criminal group. She is a passionate and good person and believes strongly in the welfare of others.'

'That she went to some of the camps is accepted...If she played any role, if such a role existed, and if she was agreeing to serious and violence offences – that is nonsense. So the proper verdict is one of not guilty.'

A Fanciful Theory

'My submission is that the Crown theory of the case is fanciful.'

'I have a theory that may be fanciful too, but it is worth putting it to you because it show the example of how facts can mean many things to many people.'

'Tame Iti is probably the most well-known and provocative protester in the country...he turned his protests into an art form....We have pictures of the Waitangi Tribunal going through burning cars....We all know the film of Tame Iti shooting the flag in front of the Waitangi Tribunal. He is the master of protest and his protests have an impact....He was part of some of these gatherings perhaps...The secret nature of them wasn't a secret at all, and maybe he knew about them.'

'His arrest may not have been a surprise to him....The subsequent court case and ending up here in the ultimate theatre of protest may not have been a surprise....He has kept the Tuhoe concerns at the forefront, as they should be....Now that is fanciful, a little like the Crown's theory of the case...'

Mr Nisbet then sat down, and with that, the closing arguments for both the defence and the Crown were over.

Court was adjourned until 9am Friday 15th March when the judge would give his summing up of the case.

ENDS

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