Open Letter To The NZ Police Re: Political Protest

Friday, 23 July 2004, 1:10 pm
Opinion: Scoop Reader Opinion

Samuel Flewett
44b Norway St.
Aro Valley
Wellington
16/07/04

To whom it May Concern,

I wish to make a complaint regarding my arrest and subsequent prosecution following a political demonstration on the 13th of September 2003. The two main aspects of the complaint are firstly the highly questionable grounds on which I was initially arrested and secondly the nature in which the prosecution was carried out.

I was arrested at the end of a small protest outside Hon. Marian Hobbs’ office on Willis St at about 12.50pm on the 13th of September 2003. Prior to the arrests organizers of the protest were handing out chalk in order to leave non-permanent messages on the exterior walls of the Labour Party head office and the walls of Hon. Marian Hobbs’ electorate office. Having written a few slogans on the walls of these buildings, I was arrested by Sr. Sergeant Smith for “Intentional Damage” under the Summary Offences Act 1982; I believe that this arrest violated sections 14 and 22 of the Bill of Rights Act 1990. Section 14 of the Bill of Rights Act guarantees freedom of expression, and the case of Moonen vs. Film and Literature board in the Court of Appeal found that the correct interpretation of the Bill of Rights Act 1990 is the interpretation which involves the least reasonable limitation of a person’s right to freedom of expression. The fact that there have been no previous convictions for chalking during demonstrations, that the areas chalked were political targets, and the removable nature of chalk all add to my case that I was lawfully exercising my right to freedom of expression in a free and democratic society as guaranteed under the Bill of Rights Act 1990.

Down at the Police Station, I had my rights explained and signed a form stating that I have read and understood my rights. When I asked to contact a lawyer, I managed to contact one, but instead of being given the right to talk in private, Sr. Sergeant Simth merely left the room and failed to close the door as required. I could hear other officers talking in the room next door, which meant that I could be overheard on the phone; the result being that I was unable to safely discuss any aspects of the case with my lawyer. The charge was subsequently downgraded to “Disorderly Behaviour” and I was promptly released on bail to appear in the Wellington District Court on the 19th of September 2003.

After declining diversion, nothing occurred for a period. My lawyer Mark Lillico, then approached the Police to ask for my charge to be dropped; the request was initially declined and I learned that a new charge of intentional damage had been formally laid. The day before I was due to appear for trial, there was correspondence between Mr Lillico and the Police, and eventually a deal was reached where my co-defendants and I each donated $50 to charity in return for all charges being dropped.

My complaint with the conduct of the prosecution is that why, when the charges were eventually dropped without any admission of guilt on my behalf did I have to wait nearly 9 months until the beginning of June for the matter to be resolved? My reason for rejecting the offer of diversion was that I was not prepared to admit any wrongdoing and was not prepared to allow the Police to get away with prosecuting cases of little merit. I accepted the final offer because I did not wish to endure the emotional and financial cost of a 2-day trial only a week out from exams (I am a 4th year physics student at Victoria University of Wellington) and also because having been emotionally worn down by not having the charges initially dropped after Ms Yoon’s were, I was ready to take any reasonable means to get out of the criminal justice system.

The total financial cost of the whole incident was around $800 and the emotional cost immeasurably higher. The police could have just told us to go and clean up the chalk (which I would not have been happy with but would have probably taken given the alternative of having to go through the courts), but instead chose to proceed with a full prosecution. This effectively imposed an extra-judicial penalty of similar magnitude to what the courts would impose for a moderately serious traffic offence where human life is endangered.

To summarise, I am arguing that the arrest should have never occurred and that after the arrest, the prosecution effectively imposed a penalty disproportionate to the seriousness of the alleged offence. I firstly wish for the conduct of Sr. Sergeant Smith during the arrest and initial processing to be investigated, and secondly for a full investigation of the general procedures involved with the subsequent prosecution, especially with regards to why the charges were not dropped earlier then the day before the scheduled trial. In your reply, I would like to see full details of the investigative procedures and should I not be satisfied with the outcome of the investigation, will not hesitate to take further legal action for costs and damages.

Yours sincerely
Samuel Flewett
16/07/04
Ph. 4753796
Mob. 027 466 3061

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