Urewera 4 Trial: Day 19 - Subliminal Undercurrents

Operation 8: Day 19, March 13th

Te Rangikaiwhiria Kemara's Lawyer Speaks

by Annemarie Thorby

After the lunch break on March 13th, Te Rangikaiwhiria Kemara's lawyer Jeremy Bioletti put forward his closing argument.

He began by introducing himself and acknowledging the jury:

'I represent Te Rangikaiwhiria Kemara and I now have the opportunity to address you in respect of the case against him...initially you people did not shirk the challenge of being on this jury...I'm extremely grateful that you stumped up to do the job...it is not an easy job, as you may have gathered by now. So perhaps it is small recompense that you are sitting on a jury of a very important trial. In fact, I say it is the most important in my lifetime as a lawyer.'

'These issues are quite profound and really go to the core of what we are all about.'

Subliminal Undercurrents

'You heard the evidence of Tamati Kruger and he, in effect, said being Maori is a state of mind. It is not necessarily the colour of your skin, but a state of mind and I think you might recall the gentleman (Dave Moskovitz) referring to the Jewish state of mind...someone can be not Jewish but can still identify with that group of people.'

'So, can I say a little knowledge can be a dangerous thing...but what I say is Maori people have concurrence with wairua, with spirits. Living and the dead are welcomed onto the Marae...there is no difference in the living, but that the living manifest themselves in living form. So you are dealing with a culture that, if you don't move within it, you might find certain things strange. If you did move in it, you might not.'

'My essential submission to you is that the Crown case here lacks credibility.'

'And the reason I say that to you...when the case started off we heard subliminal messages from the Crown about what was happening around the footage played of the vehicles at Whetu Road.'

'And the question was posed: what could that possibly be other than people training for urban warfare?'

'What could it possibly be? - Urban warfare.'

'When the phrase urban warfare was used, I detected a little undercurrent...it was urban warfare in the cities. So not involving Maori fighting against Maori, but Maori against white people in the cities.'

'This is posed as the motive for the serious violent offences.'

'This group of people are going to move into your area and do murder and do arson and do whatever to the people in your area.'

'And can I just say at the outset, that I think that is a preposterous proposition. It is not credible at all.'

'I think that the Crown thought the defence would blow on this fire and turn it into a raging bushfire. I refuse to blow on that particular fire, I am not prepared to blow on a fire that is nonsensical, that doesn't make sense.'

'I think starved of oxygen, the Crown case basically petered out at the point when the military expert gave evidence. Because the police didn't go to him until September 2009. The people were arrested in October 2007.'

'And when the police went to him they went for an expert opinion on what was occurring within the video footage. I think it would have been thought sensible to do that a little bit earlier, but nevertheless, that is what happened.'

The Video Footage

'Now the footage from October 2007 was no doubt looked at by the police and then the people were arrested on 15th Oct 2007.'

'What I am saying to you, that because they have been looking at it through a Pakeha prism, they have misinterpreted it. And in my submission the evidence of the military expert established that what was occurring in that footage...was quite clearly training of people in relation to close security work. That was what was happing in that video.'

'It doesn't have to be established beyond reasonable doubt, but I do think it is established beyond reasonable doubt.'

'It started off as being presented by the Crown as someone escorted - a prisoner from one vehicle to another, the kidnapping and the detaining of individuals. But what it is from the Crown's own witness, and from Rau Hunt, is that what is occurring there is the training of people, people possibly getting employment in the security industry.

'When I cross-examined the military witness, I made the comments that they may have been dreaming. I regret making that comment now because what is occurring in these waananga is an expression of aspiration for Maori people. That is what is occurring And I made the comment to the military expert, 'perhaps they are dreaming' and he agreed with me.'

'In saying that, it could be said that I was ridiculing what they were doing, but I didn't meant that. What I meant was, here were a group of people training to get to a certain level. To get to that type of work and they may not have made that grade.'

'In fact that is my submission of the whole of the Crown case.'

'Certain Types of Skills'

'If you take away a small number of intemperate remarks out of the picture, and we all know what people might say on a chat log and by text. If you take that out of the picture and say you are not going to condemn people. You are not going to condemn people saying something that they may regret or saying something just to shut up the other person they are talking to. If you take that subjective mix out of mixture, you can see a progressive course of people receiving a certain type of skills.'

'Now here I differ from the Crown, the Crown says those skills were acquired so that people can commit serious violent offences by urban warfare.'

'Quite obviously they were of a military nature, they're called minor tactics. If you look from January through to October, there is a progression. It starts off in a rudimentary fashion with people walking through the bush, it gets through to September where people were conducting a certain type of patrol. Now those are minor tactics and those skills can be used in the industry called personal protection. In other words protection where someone can hire a team of people to look after them.'

'I can see a number of modules across the gathering occurring and when you get to October you can see all the parts put together...put together so people can be in the running for hired paid employment rather than being on the dole. That is what that is all about. Instead of having to work in Woolworths for minimum wage, you can inspire. Rightly or wrongly, you can inspire to a better life.'

'That's the way it is. There's nothing wrong with that. We should be congratulating people trying to do that for their people. We shouldn't be putting them on trial.'

The Military Expert

'I was going to take you through the evidence of the military expert, and will do that as concisely and briefly as a I can to try and illustrate to you what I am referring to.'

'The military expert's evidence begins with him saying he was approached in 2009 and asked to review the footage.' (The military expert gave his evidence on day ten)

'He then moves on to the January 2007 camp...and he starts off talking about the key parts of patrolling in relation to a threat group. Now, if you are driving along in a convoy of vehicles and you are protecting the person in the middle of a convoy, you have to be able to respond to that otherwise you are either going to get fired or you are not going to get paid.'

Mr Bioletti then went through the topics that the military expert had covered, these included the number of components to patrolling, certain formations, maintaining formations, the single file formation of people walking as a group.'

'He talks of members of the patrol...not scanning their arcs...their arc of observation...'

'In another clip in January, the key thing from the point of view of military consistency is that it shows someone scanning their arcs as part of their patrol, and specifically the last person securing the rear of the patrol....so again for a patrol we need to maintain force protection and security from all approaches...'

'The military expert moved through to footage in June, of people walking down the hill, and you can recall a person at the end of the group was scanning their arc with their weapon. He has got the weapon on his shoulder and he is scanning arcs like we would like to expect someone in a military patrol...'

'In the September 2006 footage, what he talks about there is a recognised drill. And based on his professional judgement and experience, it does have consistency with recognising drills that we go through. And in terms of October 2007, you may be able to recall the formations formed and trained with for escorting an untrained person.'

'Now a patrol may need to hook up with another patrol...and he also talks about a break contact drill...In other words a threat comes into your parameters and you must organise yourself to move away or to deal with it.'

'Then we move through to October, it puts all of the components...from the earlier footage together at a higher level. It is more sophisticated in terms of drills, but the important thing is - what is the purpose of it.'

'The purpose is not conducting urban warfare and committing serious and violent acts...but training so that people are able to conduct themselves in the security industry...in Iraq, Africa, Dafur, in hotspots where people are paid big money to carry out that kind of work.'

'...the Crown case here is Maori people plus guns equals crime. M + G = C.'

'So when you have got that formula locked into your head, you don't look objectively at what is in the footage.'

The Firearm Charges

'We have got a burden of proof in terms of the firearm charges. We have to establish lawful and proper purpose on the basis that the Crown has been able to prove possession. A lawful purpose is not a criminal purpose...the purpose of that training was not criminal.'

'There is no criminal activity that has been carried out...unless you call the wanton destruction of a cabbage tree criminal activity. Because when you look at the situation, that was the only thing that occurred and even then we don't know when it happened. We don't know when the shredding on a cabbage tree occurred.'

'So that footage in October is not about shooting people in Auckland or Wellington or Palmerston North. It is not about detaining people, it is not about arson of people, it is not about any of those things. It is about aspiration. That's what it is about.'

'I can give you an example you have heard dozens of time: the chat-room communication between my client and one of the formerly co-accused....She says I don't want to have to kill. The answer is 'we're training to kill only if we get attacked.' That is actually what they were training to do. It is just that they were not training to do it in a context that the Crown says...they could possibly be training for the event that someone overseas is coming at them with a vehicle. A vehicle that has been set on fire.'

'They are not training to conduct urban warfare here in NZ. That is just a silly idea.'

'It Just Doesn't Make Sense'

'The other aspect too, is that paranoia strikes deep into your heart...there is a line from an old song in the 60s, it is true though....If you stoke the fire of fear and paranoia, you people will start seeing a mirage of someone coming at you...and the unfortunate thing is that, in New Zealand it is relatively easy to stoke those kind of fears. Unfortunate but true.'

'I pose you this issue – why would they bother training in October for close personal protection? If they are intent on mayhem, why would they waste their time so much on that issue? They would be losing valuable training time to do this objective.'

'Why did they take time out for someone like Rau Hunt who came? He said he was in security and showed them the ropes. He assessed their abilities and didn't think they were up to the standard for the Middle East.'

'Why would an organised criminal group with the objectives to commit serious and violent offences take time out to do that? It just doesn't make sense.'

'What they were doing was a continuum from January, it goes right through. They even had the same theme and things occurring: people coming along at both events to talk about physical fitness and nutrition. And the veggie debate – the great vegetarian debate of January 2007.'

'Why would an organised criminal group have someone coming in with training bags and rugby bags to do that?...that is a wellness thing...it is about people feeling good and doing good things. That is what that's about.'

'You know the most powerful thing here, that these people did, is that. There is not an objective to commit serious and violent offences, because nothing happened from 2006 to 2007. Nothing happened because there is no plan B. There is only Plan A, there has been plan A for 150 years. It doesn't move away from Plan A.'

No Thought Crimes in New Zealand, Not Yet

'As I said to you at the start of the case, you have got nothing by way of serious violent offences to look through and to look back to see what happened - there is no manifestation of anything.'

'There are a collection of pieces of paper and objects. You know the fact that you have a Gordon Ramsay cook book does not mean you are going to cook something. You might just be interested in it. People get interested a in a lot different things...including fishing... and just because you have an interest in firearms, doesn't mean you are a bad person.'

'It is the same way people have an interest in a society of our own people. It doesn't make them a bad person. There is nothing wrong with that. There are no thought crimes in New Zealand, not yet.'

'The book 1984 was about thought crimes – that was written in 1948, that was when they were talking about thought crimes...'

'This case is a circumstantial case, and you can use the evidence to look forward and you can use the necessary evidence to look backwards.'

'So you can look at January and say there you go, there is an ambush happening there and you can apply that forward right through to October. But equally you can go to October and shift it back through...'

'There you go...that is the reality. That is the tone of what is going on there.'

'You are only going to be asking yourself is this New Zealand, if you take a certain interpretation of what is happening in that footage. If you take the interpretation and the question together., the question of what was going in NZ doesn't even arise...'

Reasonable Doubt

'You might have heard the analogy of the strand of a rope that is used in assessing circumstantial evidence. If you put it together, it makes a stronger rope putting it together.'

'The strongest strand in the Crown case was that of the military expert, but he doesn't support their case. He supports the defence case. I am relying on his evidence to rest three things on the balance of probabilities.'

'Three things; the first thing is in relation to the firearm charges – there was lawful and proper purpose for what was occurring. Those are all the counts expect for count one.'

'In relation to count one, I am relying both on the military expert's evidence and that of Rau Hunt to raise reasonable doubt with two issues – one, was there any criminal activity occurring? No. 'Two, was there a group to commit serious violent offences? No. There wasn't, because it can't just be any group, but it has to be three people who share that common objective.'

'The Crown says during the period of count one, at all times there is a minimum of three people sharing that objective. I am saying that that is way short of being proved beyond reasonable doubt.'

Déjà vu

'Just dealing with the Tuhoe aspect. I want to say to you that this case connects back to the types of events you have heard evidence about. You have heard that the Tuhoe people were accused in the complicity of the murder of two people. You've also heard that as a result of that, effectively institutionalised revenge was taken against that nation of people.'

'And you heard it took until very recently for it to be acknowledged...that their complicity in murder was not true.'

'What's the parallel here? The parallel here is that we have...Tame Iti, a leader of Tuhoe. He is effectively been accused of having an objective to murder people. That is the connection that I see. And I say to you, it is a case of history repeating itself because the accusation in relation to Te Rangikaiwhiria Kemara, Emily Bailey, Tame Iti and Urs Signer - to all the accused, is completely wrong.'

'The case is deja vu – we have been here before.'

Kick It to the Curb

'The other aspect I want to refer you to, is you heard a lot about the 3%. The fringe 3%. The Crown says 97 % agree with the mandate and then there's the 3%, and it has been put to you somehow, that that group is a disparate group of stirrers. A group of people who don't go along.'

'We don’t know what their position is, what the facts are...that could be a very small number of hapu, for whatever the reason, that don't agree.'

'And aren't we a country where people can disagree...in my mind the Crown is making it a false picture. This 3% nasty group who are not happy with Plan A, even though they didn't talk about Plan B.'

'So my submission to you, is don't agonise about this case. You didn't shy away about being here in the first place.'

'Have a look at it it and then you should kick it to the curb. You should apply your collective common sense and you should return verdicts of not guilty in respect of each count.'

That ended Mr Bioletti's closing statement.

Court closed at 3.35pm and was adjourned until 10am March 14th.

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