There’s a furore building over the Government’s response to the Supreme Court’s 2^nd September decision in the Urewera “terror” raids case, Hamed v R (SC 125/2010, 02 September 2011).

Thomson Reuter’s editor of Criminal Reports of NZ, Rud Ward says that it seems clear that the proposal to pass urgent retrospective legislation was heading for a hefty political stoush.

For the benefit of Online Insider readers, he has summarised comments and reactions thus far.

What they've said

Lawyer and Labour candidate Michael Bott, and Green MP Keith Locke, have both said the change would legalise actions which the police had long known were unlawful.

 Mr Bott is also quoted as alleging that the Police “regard this Government as a canteen that never shuts. They can just roll up to the counter and the Government will hand over what they ask for."

Maori MP Te Ururoa Flavell considers the Government’s reaction is "panicked", would condone unlawful police actions, and would not be supported by his party.

Perhaps the most trenchant reported comment has been from Peter Williams QC, who has said that retrospective legislation is "abhorrent."

He went on: "Most governments will not pass retrospective penal legislation, even countries likeFiji. It's really repulsive to anyone who is interested in criminal law."

But Attorney-General Chris Finlayson rejects the idea that rushing legislation through Parliament is an assault on the rule of law.

Why was the appeal approved?

The Supreme Court’s reasons for approving the appeal are reported in the most recent issue of CRNZ: Hamed v R [2011] NZSC 27; (2011) 25 CRNZ 215 (24 March 2011).

The Court held it was necessary in the interests of justice to decide the appeal before the defendants were tried in the High Court. 

Other History

In its 2007 report on Search and Surveillance Powers the Law Commission recommended legislation to clarify surveillance powers; that has not yet been done by Parliament.

Further Commentary 

For more comment and interpretation, see the blogs for 18^th and 19^th September by ThomsonReuters Adams on Criminal Law author, Dr Don Mathias.

 As he points out:

 “right up to the Supreme Court's decision in the Urewera case the law was unclear as to whether surveillance was necessarily a search. The point was if surveillance was a search, it could be authorised by a search warrant. If it was not a search and could not be legitimised in that way, and if it involved a trespass the admissibility of evidence obtained by such surveillance was governed by the balancing exercise in s 30 [of the Evidence Act 2006]”

Update 10 October 2011 ( by Rutherford Ward)

As a result of the Supreme Court’s decision in Hamed v R, on 12 September 2011 all charges against 13 of the 18 Urewera accused (those charged only with unlawful possession of firearms and other weapons) were withdrawn, and they were formally discharged. That left only four defendants (one having died), being those who also faced a charge of participation in an organised criminal group. 
The Video Camera Surveillance (Temporary Measures) Act 2011, was enacted on 6 October 2011, to alter the result of the decision.

Click for more information about:

• Adams on Criminal Law
• Criminal Case Law (CRNZ)