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History throughout the 20th century is replete with authoritarian regimes using  closed, secret trials to persecute dissidents. Closed, secret trials give a veneer of legal “respectability” to an autocratic regime that wants to do away with its critics, but without giving too much away to the public how they do it.

Or what the defendant might say in his/her defence.

The British conducted secret trials with their “Star Chamber“. From the late 15th century to the mid-17th century, the Star Chamber was a weaponised judicial system to serve the interests of the powerful elite.

Soviet Russia under Stalin perfected the system into an ‘artform’. Trials were secret before public show-trials were made for public consumption.

Often many of these “state enemies” were military officers, party leaders, and functionaries who had fallen “out of favour” with the ruling clique or somehow threatened the status-quo.

Other dissidents – intellectuals, academics, trade unionists, scientists, etc –  engaged in nothing more violent than a ‘ war of words’ and ‘contest of ideas’ with the regime. Autocratic regimes are not noted for tolerating a contest of anything, much less ideas that threaten their legitimacy and monopoly on power.

Thankfully, nothing like closed secret trials happen here in New Zealand, right?

Bad news, folks. We are about to have one. It will involve evidence given in secret, in a closed trial.

And the defendant will not be informed of the evidence against him.

On 28 August 2017, Daily Blog administrator/owner, Martyn Bradbury reported that he has been targetted by a Police search into his banking activities following the release of Nicky Hager’s expose, “Dirty Politics“.

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Martyn stated;

I was applying to extend credit to keep the blog afloat and I kept getting declined.

The extensions of credit weren’t extravagant and the manner in which the declines occurred just seemed odd.

I had followed the Nicky Hager case closely where Police had sent out warrantless requests for information and had obtained that information illegally and had even written a blog myself at the time of how the process of obtaining that information by Police could damage peoples credit rating and had even hypothesised that the Police could abuse this by targeting activists they didn’t like out of spite.

I don’t know why, but I felt suspicious and so wrote to the Banking Ombudsman and asked for access to my banking files to see if there was any 3rd person interaction.

The Banking Ombudsman replied early this year, and to my shock, I found out that the Police had, as part of their 2014 investigation into Nicky Hager, sent every bank in NZ a request for information claiming ‘Computer Fraud’.

The material released showed that before I was declined on my credit applications, each one had been referred in the first instance to the Banks computer fraud unit because the Police request red flagged my account.

Once I had discovered this, I requested information from the NZ Police into why they had secretly included me in the Nicky Hager investigation. They responded that while that had sent the requests, they wouldn’t tell me why.

Following police refusal to disclose why they had been secretly investigating him, the stress took a serious toll on his mental health. Police had effectively convicted Martyn a “computer fraudster” without the usual trial process.

Martyn took matters further;

I sent all the material I had from the Banking Ombudsman including the Police request and response to the Privacy Commission and lodged a compliant regarding the Police actions.

The Privacy Commission have just finished their investigation and found that not only did the Police breach my privacy, they also breached my civil rights by effectively conducting an illegal search.

The Privacy Commissioner found in Martyn’s favour;

Earlier this year, blogger Martyn Bradbury made a complaint to our office about a request from Police to his bank for information about him. We investigated that complaint, and recently sent him our final view on the matter.

Among other things, we concluded that Police had collected his information in an unlawful way by asking for such sensitive information without first putting the matter before a judicial officer. Our view is that this was a breach of Principle 4 of the Privacy Act, which forbids agencies from collecting information in an unfair, unreasonable or unlawful way.

Our investigation, as with all our investigations, only addressed the facts of this case. We concluded that Police action in this case constituted an interference with Mr Bradbury’s privacy.

The “judicial officer” that Privacy Commissioner John Edwards referred to is a Court judge.

In November 2017, Privacy Commissioner John Edwards issued a guidance statement “on releasing personal information to law enforcement agencies”. The Commissioner said,

“A number of different areas of our work have demonstrated the need for better information to be made available to companies and individuals about the circumstances in which personal information can be released and used for law enforcement purposes.”

Martyn took that decision to the Human Rights Review Tribunal (HRRT). He said,  “they will process my complaint against the Police for breaching my privacy and civil rights through unlawful search. It’s not important to like or dislike my work, but I think we can all agree that allowing the Police to conduct secret investigations into activists and political bloggers that then damage their reputation negatively based on spurious grounds isn’t acceptable in a liberal democracy“.

Among the cases taken by the HRRT was a prosecution on behalf of businessman Matthew Blomfield against right-wing blogger Cameron Slater. The hearing for case was completed three years ago. (Blomfield won.)

On 12 June 2018, Police admitted liability in their October 2014 unlawful  search of Nicky Hager’s home. They made an apology and paid “substantial” restitution for considerable  harm caused to the journalist.

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David Fisher from the NZ Herald reported;

Investigative journalist Nicky Hager has accepted a police apology and payment of “substantial damages” after the unlawful search of his home during the investigation into the hacking that led to the Dirty Politics book.

The settlement revealed police had sought information claiming Hager was suspected of criminal behaviour, including fraud.

“Police accept that they had no basis for such allegations,” the settlement document read.

“Police apologise unreservedly for these breaches of his rights and have agreed to pay Mr Hager substantial damages and a contribution towards his legal costs.”

Martyn Bradbury was not so fortunate. Police refused to admit liability for their illegal search of Martyn’s bank accounts. He was forced to pursue his case further;

“…now that (Nickey Hager’s claim] has been finally settled, here is my statement to the NZ Police regarding my case against them for dragging me into this pus pit…

“You shredded my credit rating to every major bank in NZ by claiming I was a computer fraudster, caused me huge personal anguish and seized my banking records all for a case against Nicky Hager that you have now admitted you were wrong in proceeding with in the first place. I had nothing to do with hacking Cameron Slater’s computer and yet my case still sits in front of the Human Rights Review Tribunal despite the Privacy Commissioner recommending my rights have been breached.

It’s time to settle my case now.” 

…once the abuses of power have been settled, and the damages paid, THEN we should start asking how many other people have been caught out by this and who set the Police on this politically influenced investigation in the first place.”

In March this year, despite a massive caseload and under-funding that was hampering their mandated role, the Human Rights Review Tribunal announced they will finally hear Martyn’s case. The hearing is scheduled to take place in July and expected to last three days.

On 31 March, NZ Herald’s David Fisher published a story outlining impending Martyn’s case before the Human Rights Review Tribunal;

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Fisher also reported the extraordinary demand from Police that key evidence be presented in secret;

“Police indicate at this stage that it will seek to invoke the “closed” hearing process in relation to information relevant to this claim.”

According to Martyn, neither he nor his lawyer will be able to hear evidence presented at the HRRT hearing. In  emailed statements, Martyn told this blogger;

…The NZ Police intend to hold part of the trial in secret using secret evidence I am not allowed to see. Part of the trial will be open, part of it closed and held in secret.

My Human Rights Review Tribunal court case into how the police illegally seized my bank records as part of their failed Nicky Hager case  finally was granted a hearing to proceed and the Police announced that they would be demanding part of the trial is closed and held in secret using secret evidence I can’t see or challenge.

As stated above, this is all but unprecedented in Aotearoa New Zealand’s legal history.

A day after David Fisher’s story, Thomas Beagle from the NZ Council on Civil Liberties condemned the use of secret evidence in closed courts;

Let’s be clear about what secret evidence is. It’s not evidence that can’t be reported in the media, and it’s not evidence where the judge clears the court of all people not directly participating in the trial.

Secret evidence is evidence that the defendant, the person accused of the crime, is not allowed to see or hear, and therefore cannot challenge. The use of secret evidence makes a mockery of our justice system.

[…]

How can we trust the people keeping the evidence secret? While the courts may assert their independence from government, to the defendant they’re just another part of the government apparatus that’s going to put them in jail without the chance to defend themselves.

The only other (known) use of secret evidence took place in early 2018 when a secret trial, in unusually strict security,  took place in Wellington’s High Court.

Thomas Beagle was scathing at the time;

The right to a fair trial is a key part of our justice system and this must include the right to see and test the evidence against you. It’s impossible to rebut evidence when you don’t even know what it says. It’s hard to even appeal when the judgement against you omits critical details that the decision relied upon.

Appointing an advocate and letting the judge see the information is all very well, but as far as the defendant is concerned it’s just one part of the state telling her that she can trust other parts of the state. This is no comfort when it’s the state acting against you in the first place.

[…]

We’re told the secrecy is for “security reasons” but secret trials with secret evidence are a much more significant threat to our security and liberty.

We need to stop accepting the use of secret evidence in our courts, it has no place in a free and democratic society.

 

Judge Dobson, who adjudicated the original 2018 secret trial was equally disturbed at the secrecy, calling it “an anathema to the fundamental concepts of fairness“.

In his more recent article, Thomas Beagle listed only four laws in Aotearoa New Zealand that permit the use of secret evidence:

• Health & Safety at Work Act 2015 has schedule 4 concerning the use of secret evidence in labour disputes with employees of agencies handling classified information.
• Immigration Act 2009 where sections 33-42 and 240-244 are for the use of secret evidence in immigration decisions.
• Telecommunications (Interception Capability and Security) Act 2013 has sections 101 – 113 for the use of secret evidence in offences concerning intercepting communications for the spy agencies.
• Terrorism Suppression Act 2002 where section 38 is for the use of secret evidence in offences under this act.

It is unclear how Martyn’s illegal seizure of his personal bank records is permitted under any of those four Acts.

Even worse is the realisation that it is not Martyn who is defending himself against criminal charges. It is the Police who are on trial for mis-using their powers by breaching a person’s privacy without due regard to the laws of this country.

The police over-stepped and mis-used their powers of search and seizure. It was an illegal action, as Privacy Commissioner John Edwards stated with searing clarity, “that Police had collected his information in an unlawful way”.

Against this backdrop of over-zealousness at best and cynical illegality at worst, that Martyn is now expected to trust any evidence that the Police will offer at the HRRT hearing? Evidence that the Police will use to defend themselves? Evidence that Martyn will not be permitted to determine the validity of?

The Police misrepresented their case when they seized Martyn’s bank records. We will have no way of knowing if they will again attempt to misrepresent their case at the HRRT review.

This is absurd. It is also disturbing.

As Judge Dobson pointed out, the use of secret evidence in closed trials is anathema to the concept of a fair trial. As Thomas Beagle stated, “it has no place in a free and democratic society”.

So why are we, as a nation, permitting it?

On 24 March, this blogger wrote on the matter of the alleged Christchurch shooter’s impending trial;

Yet, conducting [his] trial in secret is also not a solution.

Secrecy breeds suspicion. It would give birth to a host of mind-numbingly tedious conspiracy theories. Salient information about his actions would be lost. It would create dangerous legal precedent.

If the alleged terrorist and mass-murderer of fifty innocent people has the right to a fair and open trial – on what grounds is the same right denied to a left-wing blogger who has committed no crime whatsoever? Remember, it is the Police on trial, not Martyn Bradbury.

This blogger will be sending this story to the Minister for Justice and Justice spokespeople from National, Greens, and NZ First.

But especially this story will be brought to Andrew Little’s attention. The secret trial of Martyn Bradbury is being done under the Minister’s watch.

Not a very good look, is it?

Time to put a stop to this Kafkaesque fiasco, Minister Little.

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Postscript

This story emailed to the following:

• Justice Minister Andrew Little
• National’s Justice spokesperson, Mark Mitchell
• NZ First’s Justice spokesperson, Darroch Ball
• Green Party spokesperson, Golriz Ghahraman
• Radio NZ
• Stuff Fairfax
• NZ Herald (David Fisher)

 

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References

Wikipedia: Star Chamber

Encyclopaedia Britannica: Purge Trials

Privacy Commissioner: Statement clarifying Martyn Bradbury’s privacy complaint

NZ Law Society: Privacy Commissioner issues guidance on personal information and transparency reporting

Justice Dept: IN THE HUMAN RIGHTS REVIEW TRIBUNAL [2019] NZHRRT 13

NZ Herald: Police pay Nicky Hager ‘substantial damages’ for unlawful search of his home in hunt for Dirty Politics hacker

NZ Herald: Huge delays at Human Rights Tribunal as cases pile up

NZ Herald: ‘Secret’ evidence in closed hearing – how police want to defend access of blogger’s details without a legal warrant

NZ Council for Civil Liberties: Secret evidence is unjust and should be banned

Radio NZ: Hearing shrouded in secrecy at High Court in Wgtn

NZ Council for Civil Liberties: Secret evidence unacceptable

Additional

NZ Herald: Hunt for Rawshark sees police rapped again for ‘unlawful’ search of banking records

Other Blogs

The Standard: Bomber Bradbury wins privacy complaint against Police (28 August 2017)

The Daily Blog: Bryan Bruce – Good Cop. Bad Cop

The Daily Blog: My case against a secret NZ Police investigation that breached my privacy and my civil rights (28 August 2017)

The Daily Blog: My statement to the NZ Police now they have settled the illegal persecution of Nicky Hager (12 June 2018)

The Daily Blog: The Human Rights Review Tribunal FINALLY will hear my case against the NZ Police ( 7 March 2019)

The Daily Blog: Secret police trials using secret evidence in NZ – welcome to my Kafkaesque nightmare (31 March 2019)

Previous related blogposts

The Christchurch Attack: is the stage set for a continuing domino of death?

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