Tuesday, 31 July 2012

John Banks and the Local Electoral Act 2001

Outcome of Police investigation into electoral returns of Hon John Banks

July 26, 2012, 11:59 am
Statement from Assistant Commissioner Malcolm Burgess:
Police investigating allegations that the Hon John Banks knowingly transmitted a false electoral return have decided there is insufficient evidence to consider a prosecution for an offence under section 134(1) of the Local Electoral Act 2001.
This follows complaints about returns filed relating to donations from Sky City Casino, Mr Kim Dotcom and a radio advertising donation to the 2010 Auckland Super City mayoralty campaign of Mr Banks.
The inquiry has established the return was compiled by a campaign volunteer who assured Mr Banks it was accurate before Mr Banks signed and transmitted the return.
In terms of Section 134 (2) of the Local Electoral Act relating to transmitting a false return there is a statutory limit of six months from the time of elections when complaints must be laid. Police first received the complaint for investigation on 27 April 2012, well after the expiry of six month period. Police are therefore unable to consider charges pursuant to Section 134 (2).
Issued by:
Grant Ogilvie
Chief Media Adviser, PNHQ
04 474 9476, 027 236 9974

Were Police correct to not prosecute John Banks for an alleged breach of s134(2) of the Local Electoral Act 2001 as it was outside the 6 month time frame for prosecutions under s14 of the Summary Proceedings Act 1957?

At first blush I think Police are correct. As Miller J in observes in McVicar v District Court at Wellington; High Court, Wellington (CIV 2010-465-1834):

Summary Proceedings Act time limit for laying informations does not apply by default
[42] Mr Lithgow emphasised that under the Summary Proceedings Act an information must be laid within six months after the event. I did not understand him to argue, as a matter of construction, that because the Health and Safety in Employment Act does not fix a time limit for a private informant by reference to the event, the Summary Proceedings Act time limit must apply to such informant. He emphasised rather that the policy of the Summary Proceedings Act is that summary proceedings should be commenced within six months.
[43] The Summary Proceedings Act time limit applies to the filing of informations only where the Act creating the offence docs not provide some other period of limitation. In my opinion the Health and Safety in Employment Act does so provide. Section 54B fixes a limitation period by reference to knowledge of the event rather than its happening, so ousting s 14. Section 54C merely creates an exception to that time limit, just as s 540 does. And as noted, s 54C clearly contemplates that an information may be laid outside the period provided in s 54B. Finally, any time limit to be read into s 54C would necessarily relate not to the laying of an information, since that is within the District Court’s discretion where it enjoys jurisdiction, but the making of the application for extension. So s 14 of the Summary Proceedings Act does not supply a default rule for extension applications. This is not to deny that the Health and Safety in Employment Act values diligence in a prosecutor, as I next explain.

The Court appears to accept that s14 does provide a limitation period of 6 months for laying informations. That time runs from the date of the commission of the offence unless there is another time limit allowed elsewhere. The 6 month time limit does not operate from the date of detection unless expressly allowed in legislation, for example s338(4) of the Resource Management Act 1991:
  • 338. Offences against this Act —
  • . . .   
  • (4) Notwithstanding anything in the Summary Proceedings Act 1957, any information in respect of any offence against subsection (1), (1A), or (1B) of this section may be laid by any person at any time within 6 months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consent authority.

So unless the Act creating the offence expressly allows for laying an information beyond 6 months from the date of the commission of the offence, say where the legislation expressly provides you have 6 months from the point of knowledge of the offence for example,  you are out of time for laying an information.

This was the interpretation adopted by Young J in Nelson City Council v Diamond Offshore Netherlands BV - [2010] NZRMA 22 where between 7 December and 23 December 2007 the respondent committed an offence against s 338(1A) of the Resource Management Act 1991 (the Act) by dumping in the coastal marine area waste or other matter from an offshore installation (a drilling rig) without a resource consent in contravention of s 15A(1)(a) of the Act. The alleged offending arose out of a defouling operation to remove mussels and other marine organisms from the subsurface structures of the drilling rig. The District Council would or should have become aware that the defouling took place within the coastal marine area on about 27 February 2008. The information was laid on 6 August 2008, which was within six months of the date upon which the District Council (and the City Council) became aware of or should have become aware of the alleged contravention, but more than six months after the date the alleged contravention actually occurred. Young J upheld the decision of the Nelson District Court that the prosecution for a breach of the RMA was statute barred as it was out of time and s338(4) did not apply.

However, s 138 of the Local Electoral Act 2001 appears to say that where an electoral officer receives notice that an offence has been committed they have a duty to take action:
Duty to take action in respect of offences
  • (1)
    If the electoral officer at any election or poll—
    • (a)
      receives a written complaint that an offence under this Part has been committed; or
    • (b)
      believes for any other reason that an offence under this Part may have been committed,—
  • the electoral officer must report that matter to the Police together with the results of any enquiries made by the electoral officer that he or she considers appropriate.

    Subsection (1) does not prevent any person from reporting an alleged offence to the Police.

    Despite subsection (1), an electoral officer is not required to report the failure by a candidate at an election to file the return required by section 109(1) within the period prescribed in section 109, if the candidate files that return promptly after being required by the electoral officer to file the return.

So upon notice or for any other reason if an electoral officer believes an offence has been committed they must report the matter to Police together with their enquiries. That suggests that the officer has a duty to make enquiries to see if an offence has been committed. This does not appear to be statute barred. However, whether Police can lay an information in relation to the offence is a different question. Also one would assume that Police made their own enquiries.  In any event in terms of statutory construction and precedent as there is no express time extension section for bringing a prosecution outside of 6 months under the Local Electoral Act 2001, I think the ability to prosecute is time limited in the manner asserted by Police. That however does not mean that no offence was committed.

Sunday, 22 July 2012


The Dominion Post page 2, 23 July 2012 carried an interesting story:

"Justice Minister Judith Collins brought her favourite accessory – the Taser – to the National Party conference yesterday morning and threatened to turn it on Labour nemesis Trevor Mallard. The two are at present locked in a bitter defamation battle, and Ms Collins received applause when she produced the weapon with a flourish asking: ‘‘Now, where’s Mr Mallard?’’ The Hutt South MP was actually very close – checked into a room at Sky City, where the gathering was taking place. On learning of her quip, he tweeted: ‘‘room 121 but a bit early for that’’. On learning of his presence, Auckland Central MP Nikki Kaye took to social media to declare: ‘‘even Labour MPs want to attend Nat party conference’’."

This begs the question as to how former Police Minister Judith Collins managed to gain access to a TASER 50,000 volt stun gun and was able to wave it around at the National Party Conference as some kind of stunt? Did she import one illegally, or did Police give her one? If Police made the TASER available to Ms Collins they should be held accountable. Under Police protocol when Police take a TASER out of the armoury they must sign it out of the register then sign it back in upon its return. Further before an officer can use a TASER they must complete a supervised course. 

Section 202A of the Crimes Act 1961 reads:
202APossession of offensive weapons or disabling substances
  • (1)In subsection (4)(a) offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.
    (2)In subsection (4)(b) offensive weapon means any article capable of being used for causing bodily injury.
    (3)In this section disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him for such use.
    (4)Every one is liable to imprisonment for a term not exceeding 3 years—
    • (a)who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or
    • (b)who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
    (5)It is a defence to a charge under subsection (4)(b) if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.

In terms of s202A(4)(a) what was her lawful authority to possess a restricted weapon? Further, what was her reasonable excuse? Surely it can't be a reasonable excuse for the Minister to have access to a restricted weapon with the permission of Police because she wants to show it off to her mates?

Also, a TASER is a hand-held device that fires an electrically charged harpoon like projectile that conveys a 50,000 volt charge that can incapacitate the subject. This projectile is fired from the TASER by way of a cartridge of compressed nitrogen.  Under s2 of the Arms Act 1983 a TASER can be classed as an airgun: 

2  Interpretation

  • In this Act, unless the context otherwise requires,—
    airgun includes—
    • (a)any air rifle; and
    • (b)any air pistol; and
    • (c)any weapon from which, by the use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged

According to Police jargon a TASER is an "Electro-Muscular Incapacitation device and has been classified as a restricted weapon. According to the NZ Police website the TASER was classified during its trials in New Zealand as a restricted weapon (see http://www.police.govt.nz/resources/2006/taser-trial/detail.html)

Legal implications


The taser is by legal definition a restricted weapon as specified under paragraph 8 of the Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1983. Sworn members of the Police have statutory authority to be in possession of and carry restricted weapons in the course of their duty by virtue of Section 3, Arms Act.

Legal Implications - use of force

The use of an EMI device is a use of force and as such, its use must be reasonable, proportionate, and necessary in the circumstances. The relevant sections of the Crimes Act, 1961 relating to Police use of force are:
  • Section 31 (Arrest by constable pursuant to statutory powers),
  • Section 32 (Arrest by a constable of a person believed to have committed an offence),
  • Section 39 (Force used in executing process or arrest),
  • Section 40 (Preventing escape or rescue),
  • Section 41 (Prevention of suicide in certain cases),
  • Section 48 (Self defence and defence of another),
  • Section 62 (Excess of force).

If Ms Collins is not licensed to use the TASER a case can be made that Police supplied this restricted weapon to an unlicensed person. This is an imprisonable offence.

    • 43 Selling or supplying firearm or airgun to unlicensed person
      • (1)Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000 or to both who—
        • (a)sells or supplies a firearm (other than a pistol, military style semi-automatic firearm, or restricted weapon) to any person who is not the holder of a firearms licence or a dealer's licence or a permit issued for the purposes of section 16(1); or
        • (b)sells or supplies an airgun to any natural person who is under the age of 18 years and is not the holder of a firearms licence.

If you or I supplied a TASER to a member of the public I have no doubt that Police would strive to visit the full force of the law upon us for supplying the weapon in the first place. Further if a member of the public had a stun device in similar circumstances they would be charged with possession of an offensive weapon, if we had real equality before the law so should the Minister.


Border patrol                             

Thursday, 12 July 2012

John Key & H2O

If as John Key posits that "no one owns water", how come in Auckland Watercare charges for it? Obviously there is an argument that there is a cost in bringing it to points of use, but Watercare charges for volume used. I am attracted to the utilitarian idea that while water is used for the common good in a state owned enterprise then Maori through good grace have not sought a financial return, however once water is treated as a means to generate private profit, then the equation is radically altered.

A Recent Case

Just been reading a file involving a person who was holding a rifle when he was shot by Police. What interested me was that after he was shot, the ESR were told by Police to only investigate the position the officer was in when he fired his glock, not to investigate where the defendant was when he was shot i.e not to analyse the scene in terms of blood splatter & drops to give an indication of body position pre shot. No wonder if this is the norm then we have seen no cases of wrongful shooting by Police in NZ.