Barrister of the High Court of New Zealand
Kelburn
Wellington
Phone: (04) 9349 389
Mobile: (0274) 40 33 63
Email: m.g.appleby@gmail.com
Hon Judge Goddard
Police Complaints Authority
Level 5
342 Lambton Quay
P O Box 525
Wellington
30 May 2007
Your Honour,
1. Further to Judge Borrin’s letter of 9 December 2005 (a copy of which is attached for your convenience and ease of reference), I write to confirm that all of the five charges have been thrown out by the District Court, and partial costs awarded against the New Zealand Police.
2. I attach some relevant documents in connection with Mrs Raue’s complaint.
3. Further background to the history of the treatment of Mrs Raue by the Masterton Police is the letter of 26August 2004 from Mrs Raue’s previous counsel, Mr Ken Daniels, to the Police calling their attention to what Mr Daniels himself believed to be fraud at the Carterton Community Centre.
4. The only response to this letter seems to have been the brief e-mail dated 26 April 2006, from Police officer Murray Johnston, admitting that he couldn’t remember Mr Daniels letter, that he couldn’t locate the file, and scoffing at any allegations which might have been made in the letter from Mr Daniels, even though he couldn’t even remember receiving the letter. The e-mail states: “Any such allegation by Kate against the Community Centre management would take a very low priority from a Police perspective. Her allegations about the Community Centre have mostly proved unfounded, emotive and simply not credible”, even though Mr Daniels is a Lawyer, and had expressed his concern at what he himself believed to be fraud.
5. The Masterton Police have, apparently, made no further investigations into Mr Daniels’ concerns about the fraud, nor do they intend to do so from the tenor of the email. This obviously requires further investigation by the Authority and constitutes a separate complaint.
Yours faithfully,
Michael Appleby
____________________________________
Wellington
Re: KATHERINE RAUE, D.O.B: 28.7.1958
Complaint regarding numerous breaches of civil rights by the Masterton Police.
1. I have been asked by my above client to refer to you the manner in which she has been treated by the Masterton Police over the last year.
2. The Complainant is a political activist opposed to the building of a proposed $4,000,000 Community Facility in Carterton, where she lives, and attended a public meeting called for the purpose of discussing the merits or otherwise of building the facility. At the meeting she was seized by the Police, who later claimed to have arrested her, although contrary evidence was given by the Police regarding this alleged ‘arrest’. She was later charged with five offences: Trespass, Disorderly Behaviour, Resisting Arrest, Assault and Assaulting a Police Officer.
3. Mrs Raue’s previous Counsel, Ken Daniels, to whom legal aid had been granted, had withdrawn as her lawyer on Wednesday 14 June 2006, and he sought an adjournment accordingly.
4. In despair, Mrs Raue rang Mr Rodney Hide, Leader of the Act Party, to seek his advice and assistance. Mr Hide indicated that he was concerned that the case appeared to involve serious constitutional issues, and civil rights issues, and affirmed the importance of safeguarding free speech in a democratic society. Mr Hide apparently suggested to Mrs Raue that she approach myself for assistance because I was involved in the area of constitutional law and human rights law.
5. I have acted for Mrs Raue since being telephoned by her urgently on the evening of Wednesday 14 June 2006. She asked me to act for her, as she was defending five charges on the following Tuesday 20 June 2006. Two days had been set aside for the hearing, although Mrs Raue’s previous Counsel, Ken Daniels, had apparently originally asked for three days. A copy of his letter dated 1 6 February 2006 in which he expresses concern that the Masterton Police were proceeding with the charges is attached, marked “A”.
FIRST BREACH
6. The Masterton Police opposed that application, in spite of the human rights protected by the NZ Bill of Rights Act 1990, Section 24(d) of which states that “everyone who is charged with an offence shall have the right to adequate time and facilities to prepare a defence.” The Police opposed Mr Daniels’ application, and the District Court refused to grant an adjournment on the Wednesday, based on that opposition.
SECOND BREACH
7. On Thursday morning, 15 June 2006, I traveled to Carterton to gather information and advise Mrs Raue, and at 5 p.m. on that day I filed another application to have the matter adjourned, as I did not have adequate time to prepare a 2-3 day defended Hearing in the few days (including a weekend) prior to the commencement of the trial on the following Tuesday.
8. Again, the Masterton Police opposed this application for an adjournment, and again breached Mrs Raue’s right under Section 24(d) of the NZ Bill of Rights for her (and her lawyer) to “have the right to adequate time and facilities to prepare a defence.”
9. On Friday 16 June 2006 the District Court again refused this application for an adjournment, based on the opposition of the Masterton Police.
THIRD BREACH
10. As a result of the refusal to grant the adjournment on the Friday, I asked several legal aid lawyers to act for Mrs Raue, as I do not do legal aid work.
11. These lawyers advised that they would be unable to act for Mrs Raue on the Tuesday, as they would not have sufficient time to prepare a defence to the five charges she faced.
12. As a result of this, and under great pressure from an ethical point of view, in that I was required under the Law Practitioners Code of Duties and Responsibilities to act for Mrs Raue, as otherwise she would have no legal representation, as is her right under the New Zealand Bill of Rights Act, I very reluctantly agreed to act for her, based on my normal legal costs of $200 per hour, knowing full well that she was impecunious and on a benefit.
13. Mrs Raue has, therefore, been faced with a legal bill of $15,639 (see Bill of Costs attached as “B”) as a result of the opposition of the Police, thereby breaching her right under Section 24(f) of the NZ Bill of Rights Act , which states that she “shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.”
14. The District Court Judge, Behrens J., Q.C. dismissed the five charges at the close of the case for the Prosecution, following submissions from myself (and having six witnesses ready to refute the complainant’s ‘evidence’), with the Prosecution agreeing at the end of Counsel’s submissions that the evidence for the Prosecution was, indeed, “tenuous”.
15. The District Court took the most unusual step of granting costs against the Police following Submissions by myself as to the question of costs. Behrens J. granted costs of $3781 instead of Mrs Raue’s actual costs of $15,639, leaving a shortfall of $11,858 to be paid by Mrs Raue as a result of the actions of the Police in opposing the application for an adjournment, and based on their knowledge that they had only “tenuous” evidence against Mrs Raue.
16. An appeal against the refusal to grant actual costs on a lawyer-client basis was lodged with the High Court but this was unsuccessful.
17. Mrs Raue seeks not just damages for the various breaches of the NZ Bill of Rights Act, but also the shortfall between her actual legal expenses of $15,639, and the costs awarded to her of $3781, namely $11,858.
18. A copy is attached of the Judgment by Behrens J. dismissing the three charges of Trespass, Disorderly Behaviour and Resisting Arrest at the close of the second day of the trial on the Wednesday. Judge Behrens adjourned the two further charges of assault, and assaulting Police, until a subsequent date, and on that date he dismissed these two further charges, again at the close of the case for the Prosecution, following submissions from myself, without the Defence needing to call any evidence.
19. A copy of his further judgment is attached, and it can be seen that he took a very dim view of the whole sorry saga.
20. Apart from the three breaches of her human rights outlined above, a perusal of the various attached documents will reveal to you that a number of Mrs Raue’s other human rights have also been breached, namely:
FOURTH BREACH
21. Section 9 of the NZ Bill of Rights Act provides that “Everyone has the right not to be subjected to …… degrading or disproportionately severe treatment or punishment.” The so called “arrest” of Mrs Raue at a political meeting, and her being dragged away by the Masterton Police without their discussing the situation with a number of protesting citizens who were concerned that Mrs Raue had been singled out without any appropriate investigation (apparently for criticising local politicians, and in spite of the efforts of those citizens keen to discuss the matter with the Police), and bustled away like a common criminal, clearly breaches the Right to be not subjected to ‘degrading’ treatment.
FIFTH BREACH
22. And a further instance of degrading treatment and punishment occurred later on at the Police Station when the Police strip-searched Mrs Raue quite unnecessarily, and three of them wrestled her to the floor in an attempt to remove her pounamu necklace, while another approached her with a pair of scissors, threatening her with the possible loss of one of her eyes.
SIXTH BREACH
23. The Police refused to allow Mrs Raue’s friend to pass on her handbag containing her personal items including her heart medication, compounding the degrading treatment and punishment to which they subjected her.
SEVENTH BREACH
24. Moreover, the singling out of Mrs Raue, among an estimated hundred participants in a spirited discussion at a public political meeting was a clear breach of the prohibition under Section 9 of the NZ Bill of Rights Act to not subject citizens to “disproportionately severe treatment.”
25. To treat her like this at a public political meeting was totally out of proportion to the desirability and reality of brisk political debate, at a public meeting which was advertised as being for just that purpose, and, what is more, being the only member of the public to be arrested, compounding the seriousness of this particular breach.
EIGHTH BREACH
26. Section 13 of the NZ Bill of Rights Act provides that “Everyone has the right to freedom of thought, conscience, religion and belief, including the right to adopt and to hold opinions without interference.”
27. The Police grabbed Mrs Raue out of the crowd after the political meeting had ended. Two burly Policemen grabbed her and manhandled her out of the building, pushed her across the back of the Police car and handcuffed this five foot six inch tall, eight stone, nearly 50 year old woman.
28. These bullying tactics against a known political activist, present at a public meeting to express her view along with everyone else, albeit in a forthright manner, clearly interfered with her Right to freedom of thought and belief and her right to hold those opinions and to express them at the public meeting called to discuss the viability of a $4,000,000 community ‘facility’ for a small provincial town which is already well served with such facilities, against which proposal Mrs Raue was a known campaigner. That the Masterton Police assisted in the attempt to silence her criticism of the proposed scheme, by arresting her without sufficient investigation, is a clear breach of this Right.
NINTH BREACH
29. The above comments expressed in paragraph 28 apply equally to the further breach by the Masterton Police of her Right under Section 14 of the NZ Bill of Rights Act, namely that “Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind, in any form.”
30. The treatment of Mrs Raue by the Masterton Police, and their complicit behaviour with the organizers of the public meeting to attempt to silence Mrs Raue was outrageous.
31. The local District Council proposed to spend $4,000,000 on a major community project which would, inevitably, result in large increases in rates as a consequence. Mrs Raue had every right to be at the political meeting and to express her views, and the behaviour of the Police that night clearly interfered with this Right. In fact, it breached nearly every combination and permutation of this Right in that the Police were complicit in the attempt to silence her, and to terminate her Right, i.e. - the Right to express herself freely on the matter, - the Right to seek information as to the proposed project, - the Right to receive any information pertaining to the proposed project, - the Right to impart her own opinions as to the wisdom or otherwise of the proposal, and - the Right to impart her own information as to the viability of the project.
TENTH BREACH
32. Section 16 of the NZ Bill of Rights Act provides that “Everyone has the right to peaceful assembly.”
33. The Masterton Police had been forewarned that Mrs Raue might attend that public meeting and make her views known. She had every right to be there, according to the Right of peaceful assembly. Her treatment at the hands of the Police clearly infringed on this Right.
ELEVENTH BREACH
34. Section 17 of the NZ Bill of Rights Act provides that “Everyone has the right to freedom of association.”
35. A number of Mrs Raue’s supporters attended the public meeting. Many other concerned citizens attended the meeting. Some were for the proposal, some were against it, but Mrs Raue is assured under the Act of the Right of freedom to associate with other equally public spirited citizen, to gather together with them to discuss common social concerns, proposed public projects that will impact on the citizens’ future rates, to discuss the merits or otherwise of major public facilities, use of public resources, etc.
36. The actions of the Masterton Police following the break up of the public meeting clearly breached Mrs Raue’s Right to associate with her fellow citizens and to debate with them about public issues that affect them all. The violent manner in which they interfered with this Right compounds the seriousness of their breach of Mrs Raue’s Right of freedom of association.
TWELFTH BREACH
37. When the Police stopped Mrs Raue from leaving the meeting (which had finished) and going home, when they grabbed her out of the crowd, when they dragged her out to the Police car, and when they pushed her face down over the boot of the car and handcuffed her, they quite clearly interfered with her Right to “freedom of movement”, a Right guaranteed under Section 18 of the NZ Bill of Rights Act.
THIRTEENTH BREACH
38. Section 21 of the NZ Bill of Rights Act provides that “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property ……. or otherwise.”
39. There appear to have been several breaches of this Section. The first was clearly when the Police seized Mrs Raue at the public meeting, and took her away to spend the night in the Masterton Police Station following the public meeting, without actually arresting her or advising her of the reason for the alleged arrest.
FOURTEENTH BREACH
40. The next breach of her right not to be unreasonably searched was when the police were processing Mrs Raue at the Masterton Police Station when three Police Officers (clearly visible on the Police Station CCTV video presently in the possession of the Masterton District Court as Evidence) all piled on top of Mrs Raue in an attempt to detach from her, her pounamu taonga, while another Police Officer approached her with a pair of scissors, saying “It would be a shame if these scissors slipped and you lost an eye, wouldn’t it?”
41. There was absolutely no need whatsoever to force Mrs Raue to undergo such a search in such humiliating circumstances in an attempt to remove her necklace. It was totally unreasonable when one considers that Mrs Raue should have been processed straight away (there was nobody else being processed in the Station at the time), she should have been released immediately on Police Bail, and she should have been allowed to go home with her friend who was waiting for her in the public waiting area next door to the cell block.
42. There was no reason to think that Mrs Raue would do herself harm; it would not have been reasonable to suspect that she might harm anyone else, i.e. that she might, perhaps, garrotte a Police Officer with it, with five or six Police Officers milling around her and behind the public counter…... It was a quite gratuitous and public humiliation instead, and this search of her involving the attempted forcible removal of her pounamu taonga was manifestly unreasonable, and resulted in their ripping Mrs Raue’s blouse in the process.
43. The removal, and the manner of the removal, of the pounamu necklace showed an appalling lack of sensitivity to Mrs Raue’s cultural background. The pounamu necklace is a taonga, or treasure, of strong cultural significance to Mrs Raue. The cross cultural communication skills of the Masterton Police are well below the standard expected.
FIFTEENTH BREACH
44. And then there was the strip search of Mrs Raue, with Police Officers taking off her bra and peering inside her panties and pulling them down. Mrs Raue was mortified, and this search was, again, an unreasonable breach of her Right against unreasonable search, when one reflects on the alleged offences with which she was later charged the following day, just prior to going to Court at about 10.30 a.m. namely Trespass, Disorderly Behaviour and Resisting Arrest (and two charges of assault which were apparently a result of defending herself against the illegal strip search and removal of her necklace, defending her Right to freedom from unreasonable search and seizure).
45. Again, Mrs Raue should have been just charged immediately at the Police Station when she was taken there and processed promptly in the public area before being released promptly on bail. There was no need to take her into a cell (outside the range of the video cameras …..) and strip search her.
46. This unreasonable strip search, during which her blouse was further ripped, as can be seen on the video, once again breached her Right to be secure against unreasonable search.
SIXTEENTH BREACH
47. In fact this wrestling to the floor by the three or four burly Police Officers, in an attempt to cut off her necklace, and the comment by the Police Officer that she might lose an eye, actually constitute another breach of the Right prohibiting “torture, as well as “cruel and degrading treatment”, pursuant to Section 9 of the NZ Bill of Rights Act.
SEVENTEENTH BREACH
48. And the further subsequent incident involving the forcible strip search, and further ripping of Mrs Raue’s blouse in the Police cell constitute a separate and distinguishable further breach of the protection of Section 9 of the NZ Bill of Rights Act, which prohibits cruel or degrading treatment.
EIGHTEENTH BREACH
49. The arbitrary manner in which the Masterton Police seized Mrs Raue has clearly broken one of the cardinal human rights, set out in Section 22 of the NZ Bill of Rights Act, that “Everyone has the right not to be arbitrarily arrested or detained.”
50. The Masterton Police ‘arrested’ Mrs Raue at the close of the political meeting arbitrarily. They arrested no one else in spite of numerous onlookers, not just Mrs Raue’s associates, protesting at the actions of the police in their violent and cavalier treatment of Mrs Raue.
51. The District Court Judge made clear his concerns at the actions of the local Police force in effecting this ‘arrest’ in his Judgment, when dismissing the three charges relating to the offences allegedly committed at the hall, at the close of the case for the Prosecution.
52. And his unusual Order that the Police pay legal costs of $3781 towards Mrs Raue’s actual legal costs is indicative of his concern at the Police’s treatment of Mrs Raue at the point of the alleged arrest, and that she was not advised at the time of the reasons for her ‘arrest’.
NINTEENTH BREACH
53. Moreover, when Mrs Raue was taken to the Masterton Police Station and detained overnight, there was an obvious spirit of punishment by the Police, and of teaching Mrs Raue a lesson for her behaviour, rather than on any principled basis of ‘process her and let her go home’ (with her companion who was waiting next door).
54. The Police did not even process Mrs Raue by fingerprinting her and photographing her until the next morning. They knew Mrs Raue well, and the Evidence shows that Mrs Raue asked repeatedly to be charged, and processed and released on Police Bail.
55. The Police could have merely bailed her in the evening and told her to come back in the morning to face what charges they thought she might face after a proper investigation. Instead they arbitrarily detained Mrs Raue overnight, even though her companion waited next door until well after midnight to transport her home to Carterton.
56. This cavalier and arbitrary approach to Mrs Raue’s right not to be arbitrarily detained appears to have had no other reason but to teach her a lesson. She was not intoxicated, she was of no danger to herself or others, and she could have been quite easily processed on the spot at the Police Station, or told to come back in the morning.
57. The political meeting was well and truly over. To keep Mrs Raue in behind bars overnight was a serious breach of her Right not to be arbitrarily detained, and this behaviour by the Masterton Police is of utmost concern.
TWENTIETH BREACH
58. Section 23(1)(a) of the NZ Bill of Rights Act provides that “Everyone who is arrested …… shall be informed at the time of the arrest of the reason for it.”
59. Judge Behrens made it quite clear in his Judgment dismissing the charges of Trespass, Disorderly, Behaviour and Resisting Arrest, that he was most dissatisfied with the situation and arresting procedures carried out by the Masterton Police at the close of the political meeting at the hall.
60. Mrs Raue has given the most emphatic instructions to myself that she was never told what she was being arrested for when the Police grabbed her and hustled her off to be pushed over the boot of the Police car and handcuffed. She advises that she did not know what charges were being laid against her until the following morning (just before she went into Court at 10:30 a.m. the next day) when she was fingerprinted and photographed
61. It therefore appears that Mrs Raue’s Rights in this regard have been breached. Certainly the Masterton Police’s non-compliance with their duties and responsibilities in this area was of considerable concern to Judge Behrens Q.C. as can be seen in his Judgment.
TWENTYFIRST BREACH
62. The next breach by the Masterton Keystone Kops appears to have been their blatant disregard of the cornerstone of justice for centuries, contained in Section 23(b) of the NZ Bill of Rights Act, which provides that “Everyone who is arrested shall have the right to consult and instruct a lawyer without delay and shall be informed of that right.”
63. Mrs Raue had asked to speak to her lawyer Mr Ken Daniels in the Police car while being taken to the Masterton Police Station, following the first Bill Of Rights warning given to her in the Police car.
64. She was, however, not allowed to ring Mr Daniels until well after she got to the station, following the attempted unreasonable seizure of her necklace and the unreasonable strip search, during which both searches she was physically (wo)manhandled and physically restrained in brutal and quite unnecessarily degrading circumstances.
65. She was, in fact, not allowed to contact her lawyer until well after the disgraceful treatment meted out to her at the Masterton Police Station. She should have been allowed to ring Mr Daniels as soon as she arrived at the police Station in Masterton.
66. Mrs Raue constantly requested to talk to Mr Daniels, but the Police refused to allow her to contact him until after she had been ‘processed’, which processing that night extended only as to the violent removal of her necklace and her underwear, and ripping her blouse on two separate occasions, but not, apparently to the usual processes of photographing, fingerprinting, laying of charges and arranging Police Bail for Mrs Raue. The Masterton Police chose to delay these procedures and processes until the next day!
67. For the Masterton Police to proceed with the unreasonable searches and seizures of Mrs Raue and to strip search her over her protestations that she wanted to talk to her lawyer, a mere phone call away, is indicative of either a cynical and conscious disregard for Mrs Raue’s Right to talk to her lawyer without delay after she was ‘arrested’ at the public hall, or an appallingly negligent or reckless ignorance as to what is an expected level of Police awareness that they should allow an arrested person to consult, as well as instruct, a lawyer without delay, once that person is arrested, i.e. at the Hall, not after the Police deign to allow this consultation, either at the convenience of the Police, or at their whim.
68. The Masterton Police Officers present that night need urgent reminders as to their duties and responsibilities regarding the Rights of arrested persons to consult their lawyers without delay.
TWENTYSECOND BREACH
69. Section 23(2) of the NZ Bill of Rights Act provides that “Everyone who is arrested for an offence has the right to be charged promptly.” Mrs Raue has instructed me that she was not actually charged with any offenses until the morning after she was taken into custody and kept overnight in the Masterton Police cells.
70. It should be possible during the investigation of the breaches to obtain written evidence from the Masterton Police Station records regarding these incidents, as to the exact time that Mrs Raue was charged with the five alleged offences, and this will, no doubt establish whether or not the Police’s own records indicate if there has been a breach of this right or not. These Documents were not discovered to the Defense during the criminal trials, but I have had information furnished to me in other cases where the Police record at what time the actual charges are laid. One would hope that the Police Complaints Authority has the power to force the Masterton Police to produce such evidence if it is available.
TWENTYTHIRD BREACH
71. In his Judgment dismissing the last two charges of assault and assaulting Police at the close of the case for the Prosecution, following submissions from myself as to the numerous breaches of human rights that appeared to have been committed by the Masterton Police officers, and after watching the Police video, Judge Behrens Q.C. made clear his distaste for the behaviour of the Masterton Police at the Police Station, as well as having expressed concerns in his earlier Judgment as the behaviour of the Masterton Police during the situation at the Carterton Municipal Hall (again at the close of the case for the Prosecution, following submissions from myself as to the numerous breaches of human Rights that appeared to have been committed by the Masterton Police officers).
72. The behaviour of the Masterton Police officers clearly breached the duty pursuant to Section 23(5) of the NZ Bill of Rights Act stating “That everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.”
73. Mrs Raue was most certainly not treated with dignity by the Police, and in no way did the Police treat her with respect for her inherent dignity, from the very first contact with her, to the last humiliating and vindictive actions of refusing to allow her companion, who was waiting for her in the foyer of the Police Station to give her her handbag containing her toiletries, heart medication and personal effects. This was not just mean-minded and mean-spirited, but an actual breach of Mrs Raue’s Right to be treated humanely, with humanity, and with dignity.
74. Judge Behrens rightly scolded the Masterton Police for their behaviour, but the litany of breaches suggests surely that the standard of respect for basic human rights amongst the Masterton Police must be amongst the lowest in the country. Urgent retraining of the local Police seems to be called for to correct this situation which currently exists in Masterton.
TWENTYFOURTH BREACH
75. Amongst the Rights of persons actually charged, is the right under Section 24(a) of the NZ Bill of Rights Act “to be informed promptly and in detail of the nature and cause of the charge”. As stated earlier in paragraph 68, Mrs Raue has indicated that she was not informed of the charges until the morning after she was ‘arrested’ and detained overnight. This is a clear breach of the Right to be informed promptly of the nature and cause of the charge.
TWENTYFIFTH BREACH
76. By detaining Mrs Raue in the Masterton cells overnight, the Masterton Police have clearly breached the right under Section 24(2) of the NZ Bill of Rights Act, “to be released on reasonable terms and conditions unless there is just cause for continued detention.”
77. One of the Police Officers cross-examined by myself during the trial, Suzanne Mackle, admitted that Kate Raue was not bailed and released that night because of her alleged “poor behaviour”, which seemed to comprise the apparently bad behaviour, according to the Police’s evidence, of continually asking to consult her lawyer!”
78. No just cause was ever advanced by the local Police as to why they kept Mrs Raue overnight in gaol, and their breach of her right to be released on reasonable terms and conditions (perhaps, for example, to present herself the following day for further questioning) was arrogant, punitive, vindictive, and deserving of strong censure by the Police Complaints Authority.
TWENTYSIXTH BREACH
79. The Police contend that they ‘arrested’ Mrs Raue for trespass and disorderly behaviour, but the District Court took the view that the arrest was illegal. Nevertheless, once the Police believed themselves to have arrested her, they were under the obligation, pursuant to Section 24(c)of the NZ Bill of Rights Act to ensure that Mrs Raue was able to exercise her Right “to consult and instruct a lawyer.”
80. But the Masterton Police did not allow her to exercise that right until towards the end of their dispensing their own particular brand of summary justice, which was horrifyingly recorded on their own video camera. The video is most alarming in its revelations as to the inability of the Masterton Police to deal with the volatile situation that developed, in a professional and calming way. They were supposed to be the professionals. They are supposed to be trained in preventing situations from escalating. Their conduct that night fell far short of that expected of Police officers, who should be trained to calm situations, rather than inflame them, surely?
TWENTYSEVENTH BREACH
81. It is clear that the Police gave their trip between the Masterton Police Station and the Carterton Municipal Hall a “Priority One” status. Evidence was presented that the trip was completed in seven minutes, under flashing lights and sirens, which haste and manner of traveling attracted the condemnation of Judge Behrens.
82. It is apparent from their conduct from the beginning that they totally ignored the fundamental Right pursuant to Section 25(c) of the NZ Bill of Rights Act, the Right “to be presumed innocent until proved guilty according to law.”
83. Police ignored the attempts of numerous bystanders to explain the situation.
84. See particularly the transcript of the email from Mr and Mrs Kennedy to Helen Clark, written that night, and the record by Mr Kennedy of his outrage at the way Mrs Raue was treated.
85. Mr Kennedy even returned to the Carterton Municipal Hall after going home, so that he could remonstrate with the organisers of the meeting as to their treatment of Mrs Raue.
86. He also had a half hour discussion the following day with Jack Johnson the Area Commander of the Masterton Police, to indicate his outrage at the brutal and over-the-top behaviour of the Police when they dragged Mrs Raue out of the hall.
87. The Masterton Police presumed Mrs Raue guilty from the start and gave no credence obviously to the presumption that she was innocent. This was a clear breach of the minimum standard expected in criminal procedures instituted by Police.
88. Mrs Raue was entitled to the presumption of ‘innocent until proven guilty according to law’, and the Police never applied that presumption to her situation.
89. Their preconception that she was guilty arose before the meeting even took place, as it came out during the trial that the organizers of the meeting had alerted the Masterton Police to the possibility that Kate Raue would probably be present, and it was arranged that the organisers would contact the Police should they feel that Mrs Raue was causing trouble.
90. So, Mrs Raue was hung, drawn and quartered as far as the local Police were concerned before there were even any alleged offences committed by her. Their attitude was that she was going to be guilty, whatever happened. Their perception before the meeting, and on the way to the Carterton Municipal Hall was that she was guilty (of whatever) until proven innocent.
91. This is a situation which mirrors Kafka’s ‘The Trial”, and should be disapproved in no uncertain terms, especially in a political milieu, which was the case here.
92. The latest Long Term Council Community Plan of the Carterton District Council, including the Financial Reports, and current financial projections regarding the current budget for the immediate future has been assessed by the Council’s Auditors as “unsatisfactory”, which would appear to confirm that Mrs Raue’s concerns (concerns which are also shared by the signatories of a relatively substantial petition) are valid.
93. Laurie Desborough of Audit New Zealand, on behalf of the Auditor General, Palmerston North, has determined in his Draft Report on the Carterton District Council’s Long Term Council Community Plan 2006-2016, incorporating the 2006/2007 Annual Plan, Volume 1 Finance and Strategy (‘the Plan’), on page 157 that “In our opinion, the Statement of Proposal for adoption of the LTCCP of the District Council, incorporating Volumes 1 to 2 dated 19 July 2006, does not provide a reasonable basis for long term integrated decision-making by the District Council and for participation in decision –making by the public and subsequent accountability to the community about the matters listed below: - “There is inadequate underlying information to support the forecast information included in the statement of Proposal. As a result, the forecasts of capital expenditure and operating expenditure, including the estimates of depreciation, could be materially misstated across all of the District Council’s activities. Also, because the forecast expenditure is not supported by adequate asset management plans, the District Council has been unable to demonstrate that the forecast expenditure will deliver the proposed levels of service across all the District Council’s activities. As a result, the information in the prospective financial statements is not supportable, and has not been based on the best information reasonably expected to be available to the District Council at the time of preparing the Statement of Proposal. This is also a departure from Financial Reporting Standard No. 42 (FRS-42): Prospective Financial Statements."
94. As well, on page 158 of the Plan, the Auditor General found that: “The District Council has not identified and adequately explained the sources of funds for its activities’ capital expenditure. The District Council does not operate separate activity level reserves, and some capital expenditure is funded from a general reserve, which is funded from various activities. This may result in surplus targeted rates in some activities being used to fund capital expenditure in other activities. “Based on the above, the District Council has been unable to demonstrate, as required by Section 101 of the Act, that it is managing its revenues, expenses, assets and liabilities, investments and general financial dealings prudently and in a manner that promotes the current and future interests of the community."
95. As well, on page 158, the officer of the Auditor General found that: “The District Council has not complied with the requirements of the Act, and has not demonstrated good practice for a Council of its size and scale within the context of the environment in respect of the following: As explained above, the District Council has been unable to demonstrate, as required by Section 101 of the Act, that it is managing its revenues, expenses, assets and liabilities, investments and general financial dealings prudently and in a manner that promotes the current and future interests of the community.” “The underlying information used to prepare the Statement of Proposal is inadequate and does not provide a reasonable basis for the preparation of the forecast information, as explained above."
96. Furthermore, page 159 of the Plan shows that the Auditor General found that: “The financial information is not presented in accordance with generally accepted accounting practice in New Zealand, in that: As explained above the information in the prospective financial statements is not supportable, and has not been based on the best information reasonably expected to be available to the District Council at the time of preparing the Statement of Proposal. This is a departure from FRS-42. As explained above, the forecast expenditure is not supported by adequate underlying information, and the District Council has been unable to demonstrate that the forecast expenditure will deliver the proposed levels of service. Consequently the extent to which the forecast information and proposed performance measures provide an appropriate framework for the meaningful assessment of the actual levels of service provision does not reflect good practice for a Council of its size and scale within the context of its environment."
97. As well, the Auditor General found that: “the scope of our work was limited as we were unable to obtain sufficient information about the underlying information to support the forecast information included in the Statement of Proposal.”
98. Mrs Raue’s concerns about the viability of the proposed $4,000,000 community facility appear to be well founded. According to the Auditor General, the standard of performance of the Carterton District Council’s financial affairs is extremely poor; in fact, they appear to be in a very sorry state indeed.
99. Pages 11 and 12 of the Council’s LTCCP refer to the Council’s commitment to the proposal.
100. On page 12 of the LTCCP, the Council (who also, coincidentally, mainly comprise the members of the ‘Focus Group’ behind the $4,000,000 proposal) “seeks your views on contributing $1 million to this project."
101. The second paragraph on page 12 of the LTCCP states that: “Should the community support the concept,” the Council would agree to make a commitment of one million dollars towards the cost of this ‘facility’, and goes on to state: “Council seeks the views of the community as to whether you believe that this investment is important for the future of our district.”
102. Also referred to on page 12 of the LTCCP is the Council’s alleged commitment to the consultation process, although the events at the public meeting which led to Mrs Raue’s unlawful detention make a mockery of this document, and of the Council’s commitment to the consultation process.
103. The actions of the local Police in trying to shut Mrs Raue up, and to silence her questioning of the need for an expensive white elephant in the community is an intolerable intrusion into Mrs Raue’s political rights to involve herself into the debate by the local community as to the wisdom or otherwise of this community facility.
104. The behaviour of the Masterton Police towards Mrs Raue, and their numerous and serious breaches of her human rights, guaranteed under the NZ Bill of Rights Act, deserve the most serious investigation by the Police Complaints Authority, and consideration given to awarding her financial compensation for each and every one of these breaches.
105. As well, she is entitled to recompense for the legal fees she has incurred as a consequence of the blatant and cavalier disregard of these rights
106. The harassment of Mrs Raue was continued by the Masterton Police when they also charged her with disorderly behaviour for her alleged conduct in the local library, when she was attempting to obtain material relevant to the $4,000,000 proposal, from the Library, which was advertised as the contact point for material about the proposed facility.
107. Judge Goddard, on appeal, acquitted Mrs Raue of that charge and indicated that her behaviour certainly did not require the intervention of the criminal law.
108. But the Masterton Police, in laying the charge, and its pursuit of Mrs Raue, have resulted in Mrs Raue’s incurring further legal fees of $5,000 in defending the charge in the first instance, and then on the successful appeal to the High Court (which did not allow costs for the successful appeal).
109. The participation in the democratic process by civic-minded citizens such as Mrs Raue is to be applauded. Without the fearless questioning of local body officials by such citizens, who are prepared to stand up and be counted, the days of vigorous and healthy political debates would be numbered.
110. The bullying and intimidatory tactics of the Masterton Police that night were a disgrace to the New Zealand Police Force as a whole.
111. When Mrs Raue uttered her cri-de-coeur for help to Mr Rodney Hide, he expressed his concern that her upcoming trial was a serious constitutional matter, that it raised fundamental human rights issues, such as freedom of speech, in a so-called democratic society. He was right. Mr Daniels also expressed his concern to the Masterton Police about their insistence on continuing with these (politically motivated) charges.
112. It was fortunate for Mrs Raue that Judge Behrens Q.C. took an equally vigorous approach in his Judgments, upholding Mrs Raue’s human rights, and, dismissing all of the five charges laid against her, at the close of the cases for the Prosecution, the evidence presented by them, as they admitted, being “tenuous”.
113. Mrs Raue and I look forward to hearing from you in due course.
Yours faithfully,
Michael Appleby
LIST OF ATTACHED DOCUMENTS
1. Letter from Police Complaints Authority dated 9 December 2005
2. Formal Complaint regarding Katherine Raue
3. Decision of Behrens J regarding charges of Trespass, Disorderly Behaviour and Resisting Arrest
4. Decision of Behrens J regarding charges of Assault and Assaulting a Police Officer
5. Bill of Costs
6. Application for Costs, including:
7. Submissions regarding Costs,
8. Submissions of the Police Opposing Costs,
9. Submissions in Reply to the Police Submissions in Opposition,
10. Decision of Behrens J regarding Application for Costs.
11. Decsion of Goddard J
12. Letter from Ken Daniels to the Police dated 26 August 2004
13. E-mail response to Ken Daniels from the Police dated 26 April 2006
14. Carterton District Council LCTTP Plan.
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