Ross Meurant: The Fault Dear Brutus Lies Not in the Stars

Judy’s in trouble again. Crusher failed to provide the legislation to crush terrorism? (1)

This media attack on her decision eight years ago, not to increase powers and invent new laws in the struggle against terrorism, I consider to be muck racking journalism.

If there is a fault in the Hallowed Halls of parliament, it may lie with the current governments delay progressing “terror” reform legislation as recommended by the Law Commission following the Christchurch massacre.

Social media has whacked the police for all manner of “negligence” but this time I defend the Fuzz. They were, by the accounts of the “incident” I’ve perused, been compromised but their swift “60 seconds” response does suggest to me that they were onto it. They simply had to, wait their moment.

Note: Recently I have penned a case to arm police 24/7 but the caveat is that the IPCA should be replaced by proper Courts of Law to determine police culpability. (2)

Rather than blame the current government or Hon Collins, one might instead lay the blame successive governments over the decades, for failing to fine tune the problem of there being no specific crime in the books, that apply to, “one person planning a crime”.

The question of whether an alleged ISIS sympathiser who was shot dead by police in West Auckland, should have been in prison, tends to shift the focus onto the Courts where (according to media and my understanding of what has transpired) various decisions relating to the current case, concluded:

• A: No provisions exist in our laws to deal with an individual planning a terror event, and
• B: It is up to parliament to make the laws, not the Courts – whose task is to apply the laws with some degree of interpretation which becomes Case Law.

I concur with B but take issue with A: that there is no opportunity to apply existing law to a situation where one person plans a crime.

Stages of committing a crime.

The ingredients of actus reus and mens rea – these being the elements of actually committing the crime and of having intention to commit the crime or guilty mind, are relevant, but this review focuses exclusively at the stages of crimes:

• If one commits a robbery, one is deemed to be a principal offender and liable to be charged with, robbery.
• If one assists a person commit a robbery, e.g., collects the bandit while making an exit, the crime of being a party to the crime of robbery, might be applied.
       o Usually, the penalty for being a party is half that of the
          principal crime.
• If a bandit intending to commit robbery, tried to enter a bank but couldn’t open the door and gets pinged by the police before the act of robbery is completed, a charge of attempted robbery may apply.
       o Case denotes what stage prior to the actual crime being
          committed, may render a perpetrator guilty of attempt.
            § e.g. “Couldn’t open the door”, might constitute a
              pen-ultimate act, but also an anti-pen-ultimate act
               – that is, a step further back from the final act of crime,
               can introduced.

• Accessory after the fact, may apply where assistance is provided to a bandit by providing help to avoid detection over the days following the commission of a crime.

There are also circumstances before a crime are committed, which can incur the wrath of the law.

• If three or more person discuss and plan with intent to commit a robbery, a charge of conspiring to commit crime, could apply.
       o And this is irrespective of whether they conspirators go
          ahead with their plan.

Where I take issue with the Court decisions, which based on media I have read appear to claim that no provision exists in the current law to charge someone for planning a crime, is that in my view, (again, based on what has been provided by media coverage) there was ample evidence that the deceased was planning to commit a crime.

• Purchasing a knife – no crime
• Collecting information on how to be a terrorist – no crime.

However, persistently expressing intention to do harm to others, in my view, begins to build a case of intention to do harm. Apropos the above stages of crime:

• The deceased did not conspire with others to injure persons – so, no conspiracy.
• The deceased did not commit the act of injuring another person.
• The deceased had not (prior to the day of his attack on other persons) taken steps which might constitute and attempt to injure person. E.g. collecting his weapons and driving to the shopping mall.

The question is; did the actions of the deceased, collecting a weapon and hoarding instructions about how to commit acts of terrorism, and persistently making threats, constitute an attempt to commit crime via anti-pen-ultimate actions?

Addendum

It does not matter that the crime was to be an act of terror.

Injuring people is an existing crime under the Crimes Act.

• This was a lesson learned by the “establishment” in the aftermath of the Tuhoe Affair, where the Solicitor General had to rebuke the police for its application of “terror legislation” in lieu of using more appropriate crimes under existing law of the Arms Act and Crimes Act.

Or, as the maxim goes: One does not need a hammer to crush and ant.

Irrespective of my above dissection of laws which in my view do permit arrest of lone rangers, it is time this government convened and addressed diverse legal issues pertaining to Terrorism.

However, I do caution that self-promoting “jobs for life” seeking “experts” in the field of “terrorism”, will be out there screaming fear and loathing, when in fact few will have every set foot in the Middle East, never seen a scorpion or a land mine and wouldn’t know a Kalashnikov from a Russian hooker.

References: 
(1) https://www.nzherald.co.nz/nz/politics/auckland-mall-terror-attack-judith-collins-defends-not-fixing-law-years-ago-calls-for-new-law-for-stripping-citizenship-residency/M43GD7LCYIELNNHXBGN5PQJB4U/
(2) https://breakingviewsnz.blogspot.com/2021/07/ross-meurant-time-to-arm-all-police-247.html

Ross Meurant, graduate in politics both at university and as a Member of Parliament; formerly police inspector in charge of Auckland spies; currently Honorary Consul for an African state Trustee and CEO of Russian owned commercial assets in New Zealand and has international business interests.