Legal Beagle by Graeme Edgeler


Everything was Done; or some answers to some of the questions people have been asking

On 3 September, New Zealand Police shot and killed Ahamed Samsudeen, shortly after he commenced a knife attack in an Auckland supermarket. Considering him to be highly dangerous, he was under close surveillance. His death meant, that in the days following, the Government and the Courts were able to release a substantial amount of information about him, and how Police and the justice system had dealt with him across his years in New Zealand.

There are things the public does not yet know, but answers to many major questions are available, ably brought to light by a number of journalists. The reporting of one of those journalists, Stuff’s Edward Gay, and similar stories from other news outlets, as well as similar information released by the Sensible Sentencing Trust, has some people asking questions. And while I cannot answer all of them, there are two big ones I can answer.

I can start with the short one: Doesn’t the Refugee Convention allow the deportation of people who are a natural security risk, even if they would otherwise be entitled to asylum? It might, but it doesn’t matter. The 1951 Refugee Convention, and the effect given to it under New Zealand immigration law are not the only laws governing refoulement of non-residents. New Zealand has obligations under other laws, including, for example the Torture Convention, not to send people to countries where they are at risk of torture. The Government has not released the information it held about the situation in S’s home country, but arguments focussing entirely on what would be permitted under refugee law alone miss a very important point.

The other bigger question is around whether Police did everything they could to keep S off the streets. Everything we have seen indicated they did. In some respects, they went to ridiculous lengths, raising serious questions about what our censorship laws cover. They’re not particularly relevant to the questions people have been raising, but I think they are important so address them too.

S was remanded in prison on two distinct occasions. Police actions in respect of both show them doing everything possible to keep S detained.

I’ll address them in chronological order. In late 2016, S was arrested and charged with several offences:

  • nine charges of knowingly distributing objectionable material under the Films, Videos and Publications Classification Act 1993 (videos shared on Facebook, said by Police to support violence or terrorism) maximum 14 years in prison)
  • one charge of possession of an offensive weapon (a knife, maximum three years)
  • one charge of failing to assist in the exercise of a search power (by refusing to provide a password to Police to unlock a phone – maximum three months); and
  • two charges of using a document for pecuniary advantage (giving false information in applications for credit used to obtain an iPhone and a watch)

Police opposed bail. Knowingly distributing objectionable publications is a serious offence, and bail cannot be expected. The Court agreed with Police. While S wasn’t charged with violent offending, both the Police and Courts appeared concerned that it might follow.

There was a problem for the prosecution. Five months later, the Censor had looked at the material that was the subject of those serious charges, nine Facebook posts S admitted publishing, none of which, it turns out, supported violence or terrorism. There were some disturbing images, but not of the type that a free country bans. Each video was rated R18.

I will not detail the material here, but many of the videos were of atrocities committed during war, some of which had also been posted by news organisations, including the Daily Mail, and al Jazeera. Police in other countries might investigate evidence of war crimes. Here they were investigating people sharing evidence of war crimes.

S sought bail again: the Censor’s ruling that the major plank of the prosecution was baseless was a change in circumstance. Police opposed. They had asked the Film and Literature Board of Review to overrule the censor. It was still possible – albeit highly unlikely* – that the Board of Review would overrule the Censor, ruling the videos objectionable, so the prosecution wasn’t technically. That was enough for the Judge. S remained in prison.

A few months later, the Board of Review confirmed the view of the censor. The charges of knowingly distributing objectionable material were gone. All the videos were R18. You wouldn’t children watching them, but possession of them, and sharing of them with adults was lawful.

S again applied for bail. Police dropped the now impossible charges. And it happens, the knife charge as well (this was later re-laid, as explained later). But Police still wanted to do what they could over the Facebook videos, even though they were lawful. Two representative charges of knowingly distributing restricted material were added. That is: S was charged with sharing R18 material with people under 18. There’s no mention of evidence that S had Facebook friends under 18. And no evidence that a kid saw even one of the videos because S shared it. But maybe one did, but Police said sharing R18 material to Facebook was enough.

To draw the first stupid analogy that came into my head: they thought someone was in possession of incest porn. They went to the censor Turns out, it was actually an excerpt of late ’90s classic Cruel Intentions. So they prosecuted them for sharing that.**

It’s a theory of censorship law that makes some journalism criminal. The censor never rated the public evidence of abuse in Abu Ghraib, but its easy to imagine it getting an R18 or R16 rating if considered by the censor. Video footage like that in the Four Corners’ “Killing Field” investigation into actions of the Australian SAS in Afghanistan could easily be restricted as well. Which would mean you couldn’t print them, or run them on websites in New Zealand. It’s a theory that makes much website pornography illegal as well. And also google image search. Won't somebody think of the children.

S pleaded guilty to the remaining offences – he always accepted he’d shared the video – but with the serious offences gone, and with S having spent 13 months in prison, he applied for bail. Police knew the sentence that could realistically be imposed on the outstanding charges was less than the 13 months S had already been in prison, so they didn’t oppose bail per se, but did hold out for an argument around conditions, asking for a curfew. Ultimately, the Judge held that the sentence already served meant that would be improper. Because of the time S had served in prison, S wouldn’t be getting a sentence that could see curfew-like restrictions imposed, so they couldn’t be imposed on bail pending sentencing. S was sentenced a few months later.

During his time on bail, Police were paying close attention to S (it is not known whether it was as intensive as under his more recent release). During the three months awaiting sentencing in the Hight Court, S was rearrested, and faced new charges, including possession of objectionable publication (maximum 10 years in prison), and possession of a knife in a public place. Police re-laid the knife possession charge they had dropped in June 2018.

Bail was refused throughout these charges, and S ultimately spent around three more years in prison on remand.

Two of the weapons charges were thrown out. They were charges that S possessed a knife and a throwing star, which were at the address he lived in prior to his arrest while attempting to leave for Syria in 2017. It is legal to possess knives in your home, but this become illegal if Police can establish that possession is in circumstances showing a prime facie intention to use them in a violent offence. Except S abandoned those weapons when he left for the airport, making it impossible a judge ruled, for police to prove even to that low standard (well below reasonable doubt) any criminal intention.

One subsequent knife charge remained. This is one that the jury acquitted him of. Court documents show what the charge actually involved. The charge was possession of a knife in a public place, so evidence that it had been at S’s home wouldn’t be enough. The public place S was said to have possessed the knife was the shop at which S bought the knife. I paraphrase a court judgment below, describing the charge:

Wanting to replace the knife taken by Police from his home, S visited a store which sold knives. He spoke to a staff member in relation to purchasing a 10-inch knife. He told them he had viewed it online and advised he wanted a long knife. S picked up the knife from inside the cabinet, held it and checked the blade. He discussed the quality of the knife with a staff member prior to putting the knife in its sheath, handing it to them stating he would take it. S paid the full price ($39) in case, and requested that the knife be couriered to his address, providing his name, address and mobile. He explained to the shop attendant that he wanted to have the knife couriered as he did not want to take the knife out in public, as he feared people’s reactions to a dark man carrying a knife in public.

That two-minute period during which S held the knife prior to purchasing it was said by Police to be possession in a public place for which S did not have a lawful excuse. The judge let this charge go to trial, and S was acquitted by a jury, something for which I feel a need to thank them. This is why we have juries.

During this second period of detention, Police also sought to lay terrorism charges, despite no terrorism having then been committed. This too was thrown out: planning to commit a crime has never been a crime of itself (Parliament is currently making it one). The videos S had this time, however, did support terrorism, and S was convicted in respect of two out of three charges.

The objectionable publications, while support of terrorism, were not of a particularly serious kind. By way of comparison, possession of a live-stream of a terror attack is more serious than possession of a manifesto, and the publications here were much closer to the latter, with the pro-ISIS and pro-terrorism message largely conveyed through words.

The two publications, videos of religious hymns, were described in the sentencing notes as:

“The first nasheed, titled “What a victory for he who got shahada” features a still image of a man wearing a black balaclava and black clothing, holding a large machine gun and standing in a field of flowers. Behind him is a flag of ISIL or ISIS, a designated terrorist organisation under the New Zealand Terrorism Suppression Act 2002. The nasheed is sung in Arabic but with large English subtitles also displayed. The lyrics of this nasheed speak of obtaining martyrdom on the battlefield and being killed in Allah’s cause.

“The second nasheed is similar, and is titled “We came to fill the horror everywhere”. It contains a series of black and white images in the background, which are somewhat difficult to make out, but tend to show buildings with smoke around them, images of the ISIL flag flying from vehicles and being held by soldiers. Again, the nasheed is sung in Arabic but with English subtitles displayed. It speaks to matters such as making disbelievers taste the heat of swords, sending disbelievers to death without mercy, and to make countries of disbelief “rain with fire and a strike on their streets and attacks.”

While 10 years is the maximum sentence available under the charge faced, that is reserved for the worst kinds of offending (eg videos showing actual victims of child sexual abuse). You are not going to get sentences close to that for possession of what are effectively word-based publications. At the sentencing, the Crown suggesting a starting point of six months imprisonment. The judge agreed. S had, of course, been in prison this second time for approximately three years.

Given this, a prison sentence being pointless (it would see S freed, with no restrictions), so S was sentenced to supervision, with a number of special conditions imposed. The Crown sought electronic monitoring, but this was refused by the judge, who was “conscious of the lengthy time [S had] already spent in custody”.

S also faced newer charges in the District Court, for assaults on Corrections staff during his three years in prison, but given what had happened in the High Court, and the nature of charges remaining in the District Court, that was a foregone conclusion. 10 months in prison had passed since the assault charges were laid, and with the trial some way off, it was obvious to all that more time spent on remand would be in excess of any likely sentence.

Auckland Crown Solicitor Brian Dickey is recorded in Edward Gay’s article:

The Crown solicitor for Auckland, Brian Dickey, told Stuff that S had already spent 10 months in prison on the assault charges and any trial date was likely to be sometime in the second half of 2022.

Had S been found guilty of the assault charges, Dickey said, he would have been released, given the time he had already served.

“As such, and in the knowledge Mr [s] was to be subject to the sentence of supervision imposed by the High Court, police, represented by and taking advice from the Office of the Crown Solicitor at Auckland, determined that continued opposition to Mr [S]’s bail would inevitably fail,” Dickey said.

“That is, despite their ongoing concerns, given the time Mr [S] had spent in custody already his continued detention could no longer be reasonably justified.”

He said police had previously opposed [S]’ bid for bail but the police had exhausted all options available to keep [S] in custody.

“Consequently the police focus was upon preparations for Mr [S]’s inevitable release.”

With a High Court judge having just refused electronic monitoring because of the time already served, Police knew no District Court judge was going to impose it. Bail followed a few days later in the District Court, by consent. No other outcome was realisitically possible. Conditions akin to those imposed in the High Court's sentence of supervision were added.

While we don’t yet know everything that occurred, the actions of Police as recorded in Court documents released following S’s death, show that Police did everything they could to have him in continued detention. If anything, as a civil libertarian, I'm concerned they did too much.

* The FLBR is designed as a community check on the Censor, and has historically been more likely to reduce a rating, rather than increase it, although that is not wholly unknown.

** This isn’t quite fair: while during its New Zealand theatrical run Cruel Intentions had an R18 rating, this was later reduced to R16, but it was the first stupid analogy I thought of, and the same legal concern would arise with R16 material.

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