The video evidence that should have been thrown out by the Supreme Court except for its false interpretation by Police, the prosecution and the Court, and a weak defence.
Continuing an exploration into the probability of what might have been happening in the Urewera in 2006 and 2007.
In the Crown Opening at the trial of the Urewera 4 in February 2012 is the statement, “By far the most compelling material you will see is the video footage of what was going on”. That footage, although unlawfully obtained, was the evidence around which the Police and prosecution case was built, not least because it was visually compelling and much more likely to influence a jury than any of the other verbal and written evidence, and expert witness evidence..
The Supreme Court ruled in September 2011 that the video footage was indeed unlawfully obtained and that it was inadmissable and could not be used against 13 of those charged as a result of the paramilitary operation on 15th October 2007. Despite its illegal provenance it was however permitted by the Supreme Court to be used in evidence against the four who finally went to trial. The Police and prosecution had fought a four-year long battle through the courts to have that footage allowed. That was a clear indication that it was thought to be the key evidence without which convictions might not be obtained.
That was clearly the case when the Crown dropped all charges against everyone except the four who were sent to trial. The Crown clearly believed that without that “compelling material” it would not gain convictions.
In this part of our exploration into the Probability Space, into what was really going on, we explore that video footage itself. We look at whether it really did show what the Police said it was. Because if it did not then the Police and prosecution case was built upon a false interpretation of their “most compelling material”.
We look then at whether or not the military type activity, captured on Police surveillance video and eventually provided to the media and used in evidence, was actually intended to train soldiers for the Ngai Tuhoe Revolution as the Police alleged, or whether it might have been preparation for possible selection to join a team to be employed as private military contractors in places such as Iraq, Afghanistan or Africa. At the trial of the Urewera 4 early in 2012 the defence argued that the latter was the case.
In 2012 one of the defence lawyers provided me with all of the surveillance video and asked me for an expert opinion on what the military type activity might have been. He also provided me with a brief of evidence in which the Police had obtained an expert opinion from a serving lieutenant colonel in the Royal NZ Infantry Regiment. The colonel had about the same level of training and experience as I had. His evidence supported the Police interpretation. Initially I tended to agree with him but after spending something like 100 hours viewing and reviewing all of the footage I changed my mind and reached the conclusion that it could support either or both of the disputed interpretations.
However the final set of video clips captured during the October 2007 wananga, just before the paramilitary operation and arrests on 15th October 2007 made me lean towards the opinion that the training on that day at least was about private military contracting rather than the training to kidnap and take hostages that the Police alleged. It was clear to me that it was probably a demonstration of how to extract a VIP from an ambushed vehicle and to move the VIP to safety.
That became the tenor of the brief of evidence I provided to the defence; that the activity in the months before October 2007 could have been interpreted either way but the October 2007 activity was almost certainly about private military contracting, or body-guarding. I provided evidence in detail explaining how the videos prior to October 2007 could have depicted training in the basic military skills that were essential before training and employment as private military contractors. They were just basic military skills that could have been used either way. I ventured my opinion that the participants in the videos did not appear to be at all competent in those skills.
I also thought that the lieutenant colonel expert witness could possibly have been “primed” by the Police through suggestion and by being shown only some of the video surveillance. I suggested to the defence that they should bear that in mind when they eventually cross examined the lieutenant colonel. At the trial under cross examination he did concede that the activity could have been interpreted either way.
The trainer at the October 2007 training session was eventually identified by the Police and arrested and charged. He was Rau Hunt, a former RNZN petty officer who had actually just returned from a tour in Iraq as a private military contractor. It later transpired that he was indeed planning to build a military contracting team of his own and had attended the October 2007 session to assess the participants for their suitability to be trained to join his team. His arrest and the long drawn out procession of the case through the courts until the charges against him were finally dropped in 2011 put paid to his plans.
The Police totally dismissed his account of his involvement and continued to press charges against him until forced to drop them as a result of a Supreme Court judgement in 2011. For what was supposed to be an Intelligence operation it demonstrated an extraordinary lack of objective analysis and a blindness to the facts in front of them. It was an extreme case of tunnel vision.
Whether or not all of the other video evidence pointed to revolutionary training or to private contractor training, the October 2007 video, combined with other evidence that was available but not sought, was clearly about private military contracting. But that October video was the video surveillance that could also have been interpreted as kidnapping and hostage taking, which was an interpretation crucial to the police case. It was the most graphic and arresting of all the video evidence and was therefore vitally important to the prosecution case.
At the trial the defence tried to put the alternative case. However none of the defence lawyers had sufficient grasp of military matters to do justice to the evidence. Rau Hunt gave evidence but the defence lawyer who led that questioning was especially ignorant and did an abysmal job. The lawyer who had commissioned me to prepare evidence had by then stood down from active participation in the trial and the remaining lawyers decided not to call me as an expert witness.
In their Intelligence operation the Police once again failed to follow up information that was relevant but did not fit into their single scenario. Tunnel vision ruled out seeking any evidence that did not accord with the assumptions and conclusions. My inquiries have subsequently turned up further information to prove the private military contracting interpretation.
The two brothers Henry and Rau Hunt had both been private military contractors. Like his brother, Henry was also ex-military. Police evidence shows that as early as July 2007 the Police had taken an interest in Henry and had conducted a cursory investigation of him. It is probable that they had linked him to Taame Iti through either telephone intercept or via the device in Taame’s home. They didn’t seem to establish the whakapapa link but their whole investigation was whakapapa blind, apart from what they could discover at Births, Deaths & Marriages. The Police did not seem to identify Rau until after the October 2007 wananga.
Taame Iti had actually been talking to Henry and possibly Rau as early as December 2006 about finding job opportunities in their industry for unemployed Tuhoe men. Now that may seem a bit of a stretch of the imagination and I personally would only ever recruit experienced ex-servicemen, but to Taame it must have seemed to be an opportunity and he was always looking for opportunities. Rau was away in Iraq on contract for about six months in the middle of 2007 and returned in time to attend the October 2007 wananga as a trainer.
The Police could have discovered all of that but they weren’t interested.
I spoke to Rau during the trial and afterwards and he agreed that the possibility of finding anyone suitable was remote. At the trial he said that he didn’t find anyone who was suitable. That was the defence line at the trial. However I am reasonably sure that at the time he had actually identified two who might have been suitable; one in an operational role and one in an operational support role. But by the time of the trial he had obviously changed his mind.
The video evidence was crucial to the Police allegations and to the prosecution case. Which is probably why it was released to the media before the trial, supposedly in the “public interest”. At the trial it was shown on a big screen and was a subliminally powerful influence on both judge and jury. The Police and prosecution interpretation of the most graphic of that evidence was demonstrably false but no amount of verbal evidence, examination and cross-examination could match it for effect. The disputed and most damning October 2007 video evidence did its damage.
The Police and prosecution fought tooth and nail to have that evidence available at trial despite the fact that it had been unlawfully obtained. It was eventually ruled out by the Supreme Court for all of the defendants except for the four who finally faced the charge of participating in a criminal group.
The jury could not decide on a verdict for that more serious charge but the video evidence had already done its damage and was probably a primary influence on the jury in reaching guilty verdicts on the lesser arms charges. The judge definitely considered the evidence for the unproven main charge when passing sentence on the lesser charges.
In the first instance the Police ruled out information they should have considered and followed up during their Intelligence operation. They were not interested in following it up for they were, as I have repeatedly asserted, unprofessional and incompetent Intelligence analysts.
In the second instance the defence failed to expertly challenge the video evidence both before and during the trial. Before the trial they focused entirely on its admissibility and during the trial they failed to challenge its veracity. And in the end it was the video evidence and the video evidence alone that sent the Urewera 4 to trial in 2012.
The critical October 2007 video evidence, falsely interpreted by the Police and prosecution and unsuccessfully challenged by the defence, should never have made it past the Supreme Court in September 2011. The defence didn’t really challenge the false interpretation until the 2012 trial, and even then it was a weak challenge.
Had it been successfully challenged and ruled out in 2011 by the Supreme Court the charges against the Urewera 4 would in all likelihood not have proceeded to court in February 2012.