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Judge applies islamic terrorist principles in Red Devil case

  • October 27th, 2012

Herald writer John Roughan puts the layman’s case against Simon France J’s stay of the Red Devil prosecutions.
There is also legal logic against what the judge did, hopefully to be tested on appeal.
I can understand the judge’s outrage. I would not have been as charitable as him about the police serving up a late-manufactured purported operations manual entry. From the judge’s account there should be prosecutions for false swearing or some other perjury or serious deceit charge.

But the Judge also notes that the deceptions have no connection to the charges he stayed. They do not taint the evidence. The stay is therefore intended only as a punishment for the Police, it has nothing to do with the merits of the charges against the Red Devils. They win and if they were guilty as charged the rest of us lose because he wants to send a message to the Police.

Exercising leverage by intentionally hurting innocent third parties is the operating strategy of terrorism. It is distinguished by its purpose from the military willingness to injure civilians as “collateral damage”. International conventions and the ICC criminalise the deliberate targeting of non-combatants, but actions against combatants that harm non-combatants unavoidably are legitimate. The test is whether the injury to third parties is deliberate.

Terrorists believe their purposes over-ride all others. They believe their objectives are so pure that the deliberately caused suffering of the innocent is just a necessary price. Their ends justify their means.

Alternatively, to justify the hurt to their victims they impute collective guilt to them as a class (capitalists, citizens of the great Satan, Christians, Jews, night club patrons, Shia – to Sunni and Sunni to Shia).

They turn to terrorism to defeat the safeguards that protect majorities from minority oppression. They can’t persuade voters, or get a privilege from due process.

The Red Devil case judicial approach has many paralells. Judges who trash prosecutions to punish breaches by particular Police officers seem to feel they have insufficient direct power over those they want to control or to punish. Perhaps they believe usual procedures for punishing wrongdoing deliver inadequate deterrent sentences. Perhaps they think the process is too slow or cumbersome or gets insufficient media attention. We do not know because generally they do not explore the alternatives. Justice France does not in this Red Devils case.

Welcome to the law judges, as citizens experience it every day. Citizens are told smugly that they have no excuse for taking remedies into their own hands. Judges do not condone them taking their deterrent vengeance to an organisation that employs the wrongdoer. Wronged individuals may not take out their frustration on the wrongdoers associates or colleagues.

As John Roughan makes plain, staying a prosecution punishes the community. It is conceivable that it may punish the culpable police officers with embarrassment. But does the judge know who is culpable? Who gave the orders? Is the behaviour so widespread that the organisation will instead close ranks behind those who just happen to have been caught.

Perhaps there are mechanisms by which those in charge will pay a price for anything bad which happens on their watch. Terrorists act on the assumption that a government which cannot protect its innocent citizens will lose power, and have to concede. In fact the opposite often happens.

The punishment chosen by this judge is a very long way from the the simple wisdom of an eye for any eye. He has not identified whose eyes have been or will be put out on any side.

Those who pay the highest price for a stay are the next victims of offenders who would have been in custody or deterred by the charges proceeding. Next comes the community’s trust in the law. If the consequence is the emboldening of a gang the outcomes of this application of the terrorist approach could be as dire as the physical harm of “normal” terrorism.

To the extent crime rates generally are affected by any obvious ineffectiveness of the law the decision could have as many victims as a bomb targetting random innocents. The bomber says ” I destroy or kill something or someone valuable to you if you do not behave as I want”. The judge has said much the same to the Police collectively.

For gangs there must be little more encouraging than to get a free pass because the law’s agents are fighting among themselves. The law truly is cutting off its nose to spite its face.


  • Johnny
  • October 28th, 2012
  • 11:48 am

Sorry Stephen. I have no fancy words for it like you, but you simply have no regard for the constitutional law that is the Bill of Rights Act, and the international law that is the ICCPR, which New Zealand couldn't sign up for quickly enough 40-odd years ago.
With both those statutes ruling supreme, and with the Rule of Law and Parliamentary supremacy being our founding forces, you give to judges, powers that they simply are not allowed to abuse.
Judges are no less bound by the law than any of the rest of us.  Indeed, judges should be the exemplars of adherence to the law.  And what your are saying here would require judges to simply pretend that the statute and international law obligations can be ignored.
I know that lawyers (including judges) think they are above the law.  But I thought you were better than this, Stephen.  You have shattered my faith in you.
Prosecutions that do not comply with the ICCPR and the NZ Bill of Rights Act are simply not lawful prosecutions.  They must be condemned and thrown out.
You are seriously out of line on this. And you bring your profession into disrepute with this utter disrespect for the Rule of Law.

  • Johnny
  • October 28th, 2012
  • 11:57 am

I notice that you don't have a "human rights" tag (which includes the Bill of Rights) on this post.
Even criminals have rights. And this includes the right to a fair and legal prosecution. This is not an opinion.  It is the Law.

  • Don McKenzie
  • October 28th, 2012
  • 12:27 pm

Johnny, You are acting like a 'pooh ba"

  • Johnny
  • October 28th, 2012
  • 6:21 pm

Don Mckenzie
Whoever the fuck you are, comment on the topic by all means.  I did.  If I'm a pooh ba for my regard for the law, you are a fucktard for having nothing to say on topic but instantly attacking my right to speak.
Stephen, I invite you to remove the stupid and pointless personal attack.


Your headline says these are "islamic terrorist principles". How so?
Is there some distinction the approach of Islamic terrorists and non-Islamic terrorists that is gernane to the present discussion? Do non-Islamic terrorists never seek to intentionally hurt third parties?
Do you really think the difference between a judge who stays a prosecution for police abuse differs from a terrorists only by degree? Could a different analogy (union picket – or should that be "islamic union picket"?) have made the point just as well, without so great an overstatement?
Is the behaviour so widespread that the organisation will instead close ranks behind those who just happen to have been caught?
I don't know, but I suspect that is the point. The judge fears exactly that happening. The likelihood of anyone being punished for this is exceedingly low. If he considers that is the case, the options for doing something else about this are limited. Whether this has the effect of encouraging police officers to fake search warrants, and swear false informations more frequently, as you seem to fear by your analogy with government reaction to terrorism, only time will tell. I suggest your implicit prediction on this point is mistaken.

  • Stephen
  • October 29th, 2012
  • 10:58 am

Proper questions. I inserted Islamic after reflecting on the parallels and realising that there was a category of terrorism that does not simply select innocents to hurt. In terrorism theory among the reasons for targeting innocents are:
a) because it is easier and has much less risk to the agents;
b) to increase the horror (people are more afraid of enemies who do not adhere to normal rules of engagement and who display utter ruthlessness);
c) to add to the perceived ineffectiveness of government (can’t even protect the innocent, the basic obligation of a ruler in most notions of the social contract);
d) to expand the universe of people putting pressure on the ruler, taking it beyond those with an interest in the dispute.
Judges are not concerned about avoiding being caught, so the first is not relevant. Thinking more about the judges’ unexplored reasoning pooints to another factor that I’ve described as the collective guilt excuse. It is highlighted by Islamic terrorism, especially in Iraq and other places where Shia kill Sunni, and Sunni kill Shia. . Until recently few non-jewish western victims of Islamic terrorism would have thought of themselves as participants in a struggle with Islam. But suicide bombers persistently paint themselves as going off to kill wicked people, effectively deeming all outside their own cause as enemy combatants.
Though it is plainly different in degree, it seems to me the judges’ casual assumption that the Police or the prosecution are the other side, collectively guilty enough to merit the punishment of having their cases fail, is much closer to the islamic jihad principle, than to the cold calculation of the classical terrorist theorists.

  • Don McKenzie
  • October 30th, 2012
  • 3:07 pm

Johnny, some of us great unwashed who do not belong to the legal 'profession' don't give a fig about the argument that process is more important than common sense or even humanity as in the case of Christie Marceau. So a judge lets a gang of crooks away and you find reasons of process to let them go. I doubt the good citizens of Nelson think it a good idea, but of course you probably think that is of no account. 
A judge lets the killer of Christy Marceau carry on in the way he has become accustomed and the next thing we have several 'learned judges' spouting on the he had to do it, 'the process you know'. 
Politicians and the legal profession have to get real, get off their high horses and listen to the people. 

  • Johnny
  • October 30th, 2012
  • 4:56 pm

Ahah. Don McKenzie is able to talk on topic after all.  Has no regard for constitutional law, but at least it's on topic.
You see this as Stephen Franks sees it apparently, as being a choice when police break the law, between turning a blind eye to the law breaking or acknowledging the police law breaking.
These are not the only alternatives.  Police could have done it lawfully.  Next time, hopefully they will, and questions of the State disregarding constitutional law will not arise.
Cops only have to be told once, and the process is corrected forever.  Trouble is that with out Bill of Rights Act being promulgated in 1990, it only took 22 years for a Judge to have the guts to finally call cops into line.  If a Judge, any judge had done this in 1991 for example, the current situation would long since have been edited out of Police dirty procedure manuals.
The only reason police do it the lawless way still today, is because police EXPECT judges to bend the law for them.  They always have, so police just carry on regardless assuming they are immune from constitutional and international law.
Don McKenzie, should we rescind our signature on the ICCPR?  Heaven help us.  Why don't we just go back to police shooting on sight and on suspicion?  It's the same principle, only differing by degrees.
I repeat, Stephen's public disregard here for international law, and constitutional law brings the entirety of his profession into disrepute.
Diceyan Principles says that if the law does not apply equally to everyone, then the effect is that we have no law, and this thing called the Rule of Law is a fiction. Same thing if the law is not predictable.
Might as well have courts deciding cases by tossing a coin.  Would save a lot of money.
Clearly, I am not a lawyer – I despise lawyers, and this thread is an indicator why.  Lawyers make it up as they go along, and end up costing the likes of me lots of money.  I thought Stephen was better than this.

  • Stephen
  • October 30th, 2012
  • 5:19 pm

Johnny you seem to have chosen to disregard my view that the lawbreaking police should face prosecution directly – those responsible for the unlawful conduct.

My concern is about what the judge chooses as a remedy instead of seeking to punish wrongdoers in the Police. Instead he punishes the community by a free pass for the gang members.

You are pleased not to be a lawyer but you could still read what is written, or would it spoil the indignation.

If you had criticised me for a disproportionate comparison, or overblown claim to parallel reasoning I would have understood it. I have risked that. But I want to underscore how wrong is the basic approach.  To me the judicial instinct in this area is the same as the terrorist instinct.

'Pour encourager les autres" is the common callous expression, though it was more bluntly expresseed by the Pope who ordered all 20,000 citizens of a heretic city slaughtered despite his general's objection that there were pious Catholics in the city.  "God will know the difference when they arrive" the Pope said.

  • Johnny
  • October 30th, 2012
  • 5:50 pm

Thank you for your thoughts Stephen, but the remedy you propose isn't consistent with the Bill of Rights Act, nor with the ICCPR, nor with leading cases on both laws.
There is no example of BoRA, nor ICCPR remedy lying in criminally prosecuting the offending prosecutor.
The remedies are not limited,  but those resorted to so far have been listed in recent Supreme Court rulings including Chamberlains, Taito, Williams and Mervin Chapman.  Not even the dissenting judges in these cases have come even close to suggesting criminal prosecution of the offending police (prosecution) as being an appropriate remedy for rights breaches.
Your solution here is simply not lawful.  it is lawyers like you who give rubbish advice to members of the public like me, and end up bringing people like me into a lot of coin-toss litigation.   That is to say, you do so for just as long as your can con gullible me into paying  your ("your” plural) extortionate legal fees.
The law must be predictable.  What law predicts the outcome your propose here?  I suggest that you are inventing new law that is simply never going to see any light of day, because it contravenes the BoRA and the ICCPR.
Do you think, Stephen, that we should be (whatever the word might be) withdrawing from the ICCPR.  Because sure as eggs you are proposing here a radical lawless departure from the Covenant.

  • Johnny
  • October 30th, 2012
  • 6:02 pm

By all means, Stephen, prosecute the police as well.  They should be prosecuted.
But prosecuting the police is not a remedy for the rights-breaching against  the "gang".
I have my copy of Prof Rishworth's and Prof Optican's Bill of Rights book here, if you want to give me a paragraph reference.  You will not be able to.
No matter what happens in proscuting errant police, the BoRA and ICCPR breaches against the "gang" is not remedied by prosecuting any police officer.
Stephen, you know I am right, and you the lawyer, are dumping of the law here.


Johnny – the Red Devils' rights weren't breached on this occasion.
Falsely conducting a search of a police rented locker, and filing false charges against a police officer doesn't breach the rights of anyone else investigated.

  • Johnny
  • October 31st, 2012
  • 10:46 am

Not that I'm a great Chris Trotter fan, but since I said the above, Trotter has said this at Stuff.
"Who cares about the rights of these "terrorists"? What about the rights of the "good people of Nelson"?
No doubt the "good people" of all those Yugoslav villages heard their leaders asking very similar questions.
Right before they butchered their neighbours."

  • Johnny
  • October 31st, 2012
  • 11:00 am

Graeme Edgeler said "Johnny – the Red Devils' rights weren't breached on this occasion"
Strongly recomment you educate yourself, Graeme, on what statute and case law says on what our rights actually are, as distinct from your yokel idea of what our rights might be.  This would be a good start.


  • Robert Miles
  • October 31st, 2012
  • 11:37 am

Who was being protected from what by the harrassment of the Red Devils. These ageing long haired motorcyclists apparently engaged extensively in recreactional drug use- pot, pills, possibly meths. In the United States extensive drug use by the middle class, students, Hollywood stars has been ignored by police as a matter of policy. Recently we read nonsense by a Massy sociologist or criminologist that sale and abuse of perscribed pharmacuticals which overlaped with lifestyle pills was a problem the police should act on. I remember reading in the NYT or LATimes a decade ago that the US police had deliberately decided to ignore such college student party drug swaping of psychological mediccations. Obviously there are too many police with time on their hands desparate to engage in paternalism and social control- but never to arrest white working class thugs hanging around outside bars in Queen st at lam or PC Panhandlers or barely legal hoodies hanging round bottlestores.. PC councillors would be appalled.
  Apparently the Red Devils would have corrupted impressionable provincials youths with pot, pills and booze. They will already be corrupt or inevitably will be. The bikie gang problem has long been a feature of dying provincial towns and cities and wastes much of the best police resources on towns not worth saving.
  The fact Nelson has consistenlty reelected the paternalistic, hyprocritical , moralistic moral majority, anti sex Nick Smith with huge resources show protecting the citizens of the town is a waste of time. The ciitizens of this slow reactionary backwater are not worth saving.
The sanctimonoious, bleeding heart, alturistic Smith and Bill English are the least desirbale parlaimentarians.
  Steven Franks is a lawyers lawyers who basically wants to preserve a legal system based on long outdated principles of family values and deference to the ordinary people. Fifty years ago much of the oridinary people were intelligent and engaged in manual physical jobs- that is rarely the case now and the law and system is a farce and essentialy exploited by the police and lawyers who appear before easily led juries and judges in thrall of the police.

  • Jim Maclean
  • October 31st, 2012
  • 7:40 pm

I am stunned by the vitriol of Johnny and dismayed that his foul language in what has always been a blog for those interested in respectful dialogue.
Like many, I find that once again Stephen has eloquently and elegantly expressed my outrage as a member of the public that wrongdoers are to be let off because of well motivated wrondoing exercised by the Police.
Like Stephen I cannot see how "two wrongs make a right" and I am a little suprised that Johnny feels emboldened to lecture Stephen and Graeme Edgeler on what the law means and requires when he admits he is not a lawyer himself and despises the profession.
Johnny your claim to have "no fancy words for it like you" in the same comment as "Judges should be the exemplars of adherance to the law" suggest to me you have not yet sorted out in your own mind whether you despise eloquent debate or seek to use your claimed lack of expertise as an excuse if you find yourself losing.
As in many previous comments on his blog, I find Stephen's arguments compelling and his examples thought provoking and appropriate.

  • Stephen
  • November 1st, 2012
  • 6:30 am

I’ve left Johnny’s comments untouched despite the distasteful language because it speaks for itself. His references to statutes and cases are generally wrong or incomprehensible but I do not make time to answer comments where it would need too much explanation for the commenter to understand. And the alternative would’ve been to delete entirely.
I don’t want to do that where the commenter has a reasoned and sincere perspective, even if the reasoning is obscure

  • Johnny
  • November 1st, 2012
  • 12:21 pm

Typical lawyer response. To blame the language of the opponent, without addressing the issues at point.
What is this? 

"Johnny, You are acting like a 'pooh ba"
Something you would say in a court? So who set the standard of the debate here?

You lot set the standard.  The standard here is that if someone disagrees with the host, one instantly becomes the subject of the thread, and remains so right to the end, including in posts by the host himself.  And my fitting in with your gutter standard becomes your excuse for not addressing my perfectly valid points.  While you use the excuse of my adopting your gutter standard as being good reason for you not respecting my viewpoint.
In the infamous words of Rambo – "you drew first blood".
Feel free to remove the whole thread. It is gutter standard lawyers disrespecting the High Court and the law anyway.
What barrister in his right mind, labels a High Court Justice ruling to Islamic terrorisism, then finds a convenient prima donna excuse to turn the debate into one attacking a person who happens to disagree and gets insulted for taking the trouble to comment.
Typical lawyers.

  • Johnny
  • November 1st, 2012
  • 12:24 pm

"I am stunned by the vitriol of Johnny and dismayed that his foul language"
"Johnny, You are acting like a 'pooh ba' "
is fine.
Get off your high horses.

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