Legal Beagle by Graeme Edgeler

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Legal Beagle: The Police Investigation into the GCSB

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  • Graeme Edgeler, in reply to izogi,

    Surely it should be near the top somewhere, and probably more than just a single person? Otherwise there’s just a big motivation to mis-manage departments so they can avoid legal responsibility.

    Civil liability in court for the department as a whole, and employment liability for individuals .

    Loss of employment is what appropriately happened in the Parliamentary Service over the Andrea Vance/Peter Dunne emails and access card logs. The Head of the Service took responsibility for there being poor systems and resigned.

    I understood that at least some of those with responsibility in the GCSB at the time of the Dotcom interception had resigned too. Hugh Wolfensohn, whom I understand to have been the legal adviser, and was the Acting Director at the time, was placed on "gardening leave" and is reported not to have returned.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    If all you have is speeding, you haven't committed a criminal offence. You must not only have speed, you must also have danger.

    But sufficient speed in and of itself is always deemed "dangerous" - meaning that your original claim "Speeding isn't a criminal offence" was technically incorrect and so left you open to an Edgelering. Hence, from the NZTA website:

    If your speed is more than 40km/h above the speed limit you can get a 28 day licence suspension, and at more than 50km/h over the limit you can also be charged with careless, dangerous or reckless driving.

    Of course, we could test the extent of any purported knowledge/intent requirement through you hopping in your car, driving out to the Hutt at 155 km/h, and then telling any officer who pulls you over "I didn't realise how fast I was going, and didn't think what I was doing was dangerous." What's your learned legal opinion on the chances of that claim getting you off any charge?

    Dunedin • Since Nov 2007 • 200 posts Report Reply

  • Rich of Observationz,

    Incidentally, I believe that in the UK all motoring offences (even parking) are criminal, but are just dealt with administratively via a fixed penalty in most cases. The "infringement offence" thing is an NZ innovation.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    Isn’t there always an intent requirement for manslaughter, in that you always have to have intended to do whatever it was that resulted in the death?

    No. The manslaughter convictions of John Horrell (who owned an aircraft maintenance company), and Ronald Potts (who was a senior engineer at that company), who were convicted for failing to ensure there was proper supervision of the workers who repaired a helicopter, are classic examples of gross negligence short of any "intention" being the basis for a manslaughter conviction.

    see: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10507609

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    at more than 50km/h over the limit you can also be charged with careless, dangerous or reckless driving.

    Can be charged is not the same as are guilty of. The additional requirement of dangerousness is highly likely to be present, but still must be proved.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • izogi, in reply to Graeme Edgeler,

    Loss of employment is what appropriately happened.... [--snip--]

    Cool. Thanks for that, Graeme.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Raymond A Francis,

    As always, thank you Graeme for bring some clarity to this

    I am fairly sure that if your supervisors have legal advice that what you are being directed to do is legal you have a fairly good defence if some other pointy headed lawyer then decided it might not be legal
    (Note plenty of weaselly get out of jail words in this statement)

    Bottom line my lawyer can probably beat yours if we keep paying him money

    45' South • Since Nov 2006 • 576 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    Speeding isn’t a criminal offence.

    But it can be. Under the Land Transport Act , s.7(2): … [it can be dangerous driving]

    Perhaps we can try an analogy.

    If I had made the outlandish claim "having consensual sex isn’t a crime" would you have responded "But it can be. Under the Crimes Act, s.130 … [it can be incest]"?

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Ian Dalziel, in reply to Graeme Edgeler,

    Invested Under-urgency?

    You must not only have speed,
    you must also have danger.

    If not seized as the new adventure-tourism slogan for New Zealand, this must at least be enshrined on t-shirts and sent out into the world...
    Immediately!

    Christchurch • Since Dec 2006 • 7876 posts Report Reply

  • Kumara Republic, in reply to Graeme Edgeler,

    At the end of the day, the message being sent from this whitewash is that the GCSB is effectively a law unto itself (and to a lesser extent the Police).

    The southernmost capital … • Since Nov 2006 • 5414 posts Report Reply

  • Peter Graham,

    I just read the Police press release and found this:

    "GCSB staff also did not follow their own internal processes in actioning the OFCANZ requests."

    You can't claim to be simply following orders when you aren't following orders.

    Christchurch • Since Jul 2011 • 39 posts Report Reply

  • martinb,

    Try these:

    'In Zimbabwe police have raided newspaper offices after the Prime Minister made a complaint about journalists. The ruling party alleged the journalist was a member of an opposition party attempting to smear the government..."

    "In Zimbabwe a government minister previously granted extraordinary powers to deal with an emergency rebuild has questioned the need to protect journalist's privacy and sources..."

    "In Zimbabwe farmers from the dairy rich Buria region are happy after the government has removed the elected local environmental authority and replaced it with a government appointed body likely to be more sympathetic to farmers desire for irrigation and waste water rights...."

    "In Zimbabwe the police declined to prosecute Government surveillance agents, despite saying the law had been broken, because the agents were not aware of the illegality of their actions, a spokesman said. New powers were last week granted to ..."

    " In Zimbabwe the Prime Minister dismissed concerns of the Law Society, the Human Rights Commission and previous Prime Ministers about wide-ranging new surveillance powers, saying they didn't understand the bill and that the public could have confidence in him to ensure the surveillance was used only in appropriate circumstances...."

    Auckland • Since Jul 2010 • 203 posts Report Reply

  • Stephen Judd,

    martinb, very telling. I would like to circulate it further.

    Wellington • Since Nov 2006 • 3121 posts Report Reply

  • JR,

    So essentially, ignorance of the law can be an excuse?

    Since Jan 2007 • 6 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    If I had made the outlandish claim “having consensual sex isn’t a crime” would you have responded “But it can be. Under the Crimes Act, s.130 … [it can be incest]”?

    If I had done so, would I be wrong?

    All I was doing was tweaking your tail ... no offence intended by it.

    Dunedin • Since Nov 2007 • 200 posts Report Reply

  • Graeme Edgeler, in reply to Kumara Republic,

    At the end of the day, the message being sent from this whitewash is that the GCSB is effectively a law unto itself (and to a lesser extent the Police).

    You know that the (acting) Head of the GCSB at the time of the interception lost his job, right?

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • BenWilson, in reply to martinb,

    That is very good.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    You know that the (acting) Head of the GCSB at the time of the interception lost his job, right?

    There's no blood in that. No satisfaction of the commentariat's visceral desire for vengeance.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    No satisfaction of the commentariat’s visceral desire for vengeance.

    Bloody law and order types!

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Alex Coleman,

    Key says: "Under the Crimes Act it's whether they deliberately intended to take an action against somebody that they knew to be a New Zealand resident, and they didn't."

    http://nz.news.yahoo.com/a/-/top-stories/18720126/key-backs-police-decision-on-dotcom-spying/

    So that's that then I guess.

    Wellington • Since Nov 2006 • 247 posts Report Reply

  • peterpeasant,

    "I didn't know the gun was loaded" is a defence that has been tried before and has had little success in courts.

    Here we have participant A handing participant B ammunition to use in weapons only available to participant B.

    Participant B dutifully uses ammunition , as requested by participant A.

    There are some unintended consequences.

    As a result participant A is required to investigate whether or not participant B had done something criminally wrong.

    Well, yes participant had done something criminally wrong but they did not mean to.

    On that basis participant A decides not to prosecute, thereby avoiding the cas being decided by a court.

    No charge, no defence of of "ignorance of the law".

    Who wins? Minister of GSCB.

    This National Key led government has utterly betrayed and corrupted New Zealand.

    Key is desperat to hide something.

    new zealand • Since Oct 2010 • 39 posts Report Reply

  • BenWilson, in reply to Alex Coleman,

    So that’s that then I guess.

    Yes, they accidentally intended to take action against someone whose residency they didn't check, and they did! Case dismissed!

    The most amazing part in Key's announcement is that he used the word deliberately...deliberately...and even deliberated it to the point of pronouncing every syllable.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • Ian Dalziel, in reply to BenWilson,

    I knew he was ‘scaley’…

    the word deliberately

    He’s probably labouring under the illusion that to ‘de-liberate’ means to take away freedoms and liberties, something he warms to, it seems, taking past actions on balance…

    Bt if those anonymous ‘coupla mistake-making GCSB agents’ weren’t acting deliberately, why, they must have been acting rashly, in an impulsive and ill-considered manner – rogue agents almost – best they are cut from the herd, eh, John?

    Christchurch • Since Dec 2006 • 7876 posts Report Reply

  • Alex Coleman, in reply to Ian Dalziel,

    ‘de-liberate’ heh.

    You could interpret what he said as meaning that spying on nonresidents isn't against the crimes act.

    Wellington • Since Nov 2006 • 247 posts Report Reply

  • Sofie Bribiesca,

    So , our GCSB may not have had intent, but it would seem the Police have every intent of checking on Arthur Allan Thomas again.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

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