Are Todd Barclay And National High-Ups Guilty Of Witness Tampering?

There’s an old saying in politics – “It’s not the crime that gets you, it’s the coverup”.

Any number of previous, well-trammelled scandals and imbroglios serve to prove this fundamental truth – with American political happenings such as Watergate and the Lewinski Affair probably being some of the best-known examples.

For various reasons, it’s been a maxim often less applied here in New Zealand. There’s just something about living in a small, insular ‘everybody-knows-everybody’ kinda place that makes attempts at pulling off a genuine “cover-up” something of a fool’s errand.

Todd Barclay, apparently, is that fool.

Now, there are no doubt any mileage of column-inches about to be penned on the sorry saga by which a young lad managed to throw away a potentially life-long political career handed to him on a platter; but for my money [and it is taxpayer money we’re talking about, after all] no explanation better encapsulates what’s gone on than that ancient Greek maxim: “Those whom the Gods would destroy … they first make arrogant”.

For it is arrogance in the extreme which appears to have characterized Barclay’s conduct right the way through what’s gone on. Starting with getting off-side with long-serving electorate office staff over his boyish refusal to turn up for community engagements in his constituency. And continuing apace with his overt antagonism of at least one of these staffers to the point that an employment grievance wound up being filed, and compensation – justly – argued for.

Perhaps it is the brashness of young men [something I’m occasionally somewhat acquainted with]; and certainly, it is not at all out of keeping with the default de-rigeur characterization of the National Party that their incipient scion would have such a low opinion of the rights and protections accorded to the ordinary Kiwi worker [or, for that matter, those whom they are paid princely to represent].

But whilst the stereotypical National voter might not care too much about the well-treatment of employees [and, going off National’s previous legislative record in this area, are pretty A-OK with the Government casually listening in on your private conversations] … if there’s one thing they DO care about, it’s the outright waste and mis-expenditure of taxpayer money. [At least in concept – once again, National’s actual record in this area has many, many millions mis-allocated to things like flag referendums, and Ministry of Business, Innovation and Employment building redesigns etc.]

And while other commentators are right now asking whether it’s an appropriate use of taxpayer coin to provide ‘hush-money’ to somebody who could potentially embarrass the Government … I’ve got a rather different question.

Namely, whether Todd Barclay and co. have actually broken the law with the way they’ve attempted to keep the woman at the center of this all – one Glenys Dickson – from co-operating with the Police investigation into what’s gone on.

So let’s recap.

Section 216B of the Crimes Act makes it an offence [albeit a rather mild one, punishable by ‘only’ up to two years’ imprisonment] to illicitly record the private communications of others. Unless, of course, you’re Tim Groser having our intelligence services bug rivals for a plum job – in which case, it’s absolutely fine, apparently. Gosh, no wonder Barclay thought he was in the right – he was simply aping the example of those further up the National Party greasy-pole than he is. [At the very least, you’d think the Nats would be better acquainted with the ambit of this legislation given its previous use by the Prime Minister of the day to tarr morally blameless cameraman Bradely Ambrose as part o the ‘Teapot Tapes’ scandal]

It is [rather strongly] alleged that the offence made out in s216B is exactly what Barclay did, using a listening device to record and potentially have a transcript made of Dickson’s communications in some sort of bizarre bid to get a ‘one-up’ of sorts upon her in a brewing employment dispute.

Barclay has always denied that he did this (or at least, that he did so intentionally), and despite assuring his voters that he’d co-operate to the fullest extent with the police investigation into the ‘alleged’ bugging, he proceeded to dodge and frustrate police inquiries into the matter at every turn.

The ten-month police investigation into the alleged bugging was eventually brought to a fruitless close due to “insufficient evidence”; although it occurs that it is perhaps rather curious that no search-warrant was ever served on Barclay’s place of residence [despite a previous Police interest in doing same] to recover the recording device and/or transcripts which would have proven the offence [or, to be fair, to have made out its actus reus element at the very least – errant legal expert Andrew Geddis has suggested that a lack of intent would vitiate the notion of a crime having been committed, even if Barclay later chose to keep the recordings].

All things considered, a sad end to what should have been a proud statement that here in New Zealand, even Government MPs are not above the law [albeit a conclusion one wonders whether the Police might be revisiting, in light of the evident surfeit of people all throughout the upper echelons of the National Party not only of the opinion that a recording WAS made, but apparently acquainted in detail with some of the contents thereof].

But the potential illegalities did not end there; and in light of this week’s revelations about what’s gone on, I would go so far as to suggest that it’s only now that things have gotten ‘really interesting’.

Everybody’s focused thus far on the aforementioned section 216B of our Crimes Act.

But in fact, there is another – far older – segment of our criminal code that may be more directly relevant to what’s gone on here.

In specia, section 117 – “Corrupting Juries And Witnesses” [and, for that matter, perhaps also its immediately above neighbour, s116 – “Conspiring To Defeat Justice“].

Walk with me, if you will, through s117.

Subsection (a) sets out that a person who “dissuades or attempts to dissuade a person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter (whether civil or criminal[)]” commits an offence punishable by up to seven years imprisonment. Subsection (e) furthers the ambit of this section by adding that a person who “willfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand” is also guilty of the same offence.

Clear so far? Good.

Now take a look at a few of the quotes that have come out from the key National players in this scandal:

Bill English’s statement that a “larger than normal settlement […] part-paid from the Prime Minister’s budget in order to avoid potential legal action” takes on a bit of a different light, now, doesn’t it.

More to the point, presuming for the moment that the statement Dickson has given to Police about her interactions with various high-up National functionaries is accurate [and I see no reason, at this point to doubt it], what are we to make of her being told that going all the way to Court would make things “difficult” for her and her family? Or, for that matter, the very pointed emphasis that she’d be singlehandedly responsible for “[taking] down the National Party” if she persisted with her police complaint.

Do these incidences appear to look rather like the elements of the offence of witness-tampering as made out in s117 of the Crimes Act? Why, I think they do. At least enough to mount a serious and vigorous prosecution – even if the result is ultimately in the negative.

We have a prima-facie situation of the current Prime Minister stating that a cash payment was considered [which meets the definition of a ‘bribe’ as set out in the s99 Interpretation of the Crimes Act for ‘Crimes Affecting The Administration Of Laws And Justice’] necessary to prevent “legal action” in this matter. Regardless of whether the legal proceedings in question are civil or criminal in nature, the charge laid out in s117 can still apply.

Further, the comments from the as-yet unnamed National Party high-up about how taking Barclay to Court would make things “difficult” for Dickson’s family – whilst perhaps presentable as being the mere facts and reality of undergoing legislative proceedings in a high-profile case – certainly appears to have been presented to Dickson with the overt overtones of a “threat”. And the attempt to exert ‘moral pressure’ of a sort upon Dickson to not besmirch the name of the National Party and its ability to pass legislation, is arguably yet another example [if we presume that ‘threat’ means “if you do X, then Y undesirable consequence for you not directly connected to X will happen”], particularly in light of the implicit statement that Dickson would become something of a pariah in National Party circles [which evidently include quite some of her close associates among them] for being a whistle-blower. At the very least, it would be enough for an exploratory probe under the earlier s116, concerning potential Conspiracy To Defeat The Course Of Justice.

Now will anything come of any of the above? I’m not sure. Certainly, in an ordinary and transparent political-legal system, there would be pretty reasonable grounds to get very, very annoyed indeed if none of this were looked into further by the proper authorities. Particularly in light of the already somewhat curious decision of the Police to drop the Barclay case despite very strong [albeit arguably circumstantial] evidence in their possession that an offence against s216b concerning the illicit recording HAD been committed.

Having said all that, I must concede a possibility that there is yet more material yet to come out which casts the whole thing in a different light. But with what we know so far it is difficult in the extreme to avoid the severe impression of egregious impropriety with what’s gone on.

Perhaps my next ‘big question’ should be why Barclay wasn’t de-selected as the local National candidate many, many moons ago. Particularly as a successful conviction for any of the above [even, according to my reading of the law, the relatively more mild s216B recording device charge] would result in the responsible parties – if MPs – being booted out of Parliament with great haste under s55(d) of the Electoral Act.

In order to attempt to ‘cauterize’ the bleeding – and prevent even ‘higher-profile’ scalps from finding themselves mounted on some errant litigant’s wall – I would fully expect Barclay to be “gone by lunchtime” [in the words of a previous somewhat scandal-mired National Party Leader]. Whether that’s enough to prevent a full-scale probe into who’s said what to whom is another matter. If National moves to block a proper Inquiry into how much and what sort of involvement senior figures including other MPs had in these events, then it certainly gives the compelling impression that they’ve something to hide.

In any case, looking at all of this it’s pretty hard to feel confident that a party which runs itself in such an avowedly circus-like manner could possibly be fit to govern the rest of the nation.

“The Fish”, as they also say in politics, “rots from the head” on down.