Tuesday, 18 October 2016

David Defeats Goliath (By Murray Horton from August 2000)


David Defeats Goliath:

David Small Wins $20,000 From Police In Second Court Case To Result From 1996 SIS Break-In

 By Murray Horton
Reproduced from Foreign Control Watchdog Issue 94, August 2000


In July 1996, two agents of the NZ Security Intelligence Service (SIS) were caught in the act of breaking into the Christchurch home of GATT [1] Watchdog activist, Aziz Choudry, during activities opposing the Asia Pacific Economic Cooperation (APEC) Trade Ministers’ Meeting. Aziz sued the Government for $300,000 damages. In 1999, after a lengthy legal and political saga, the National government settled the case out of court for an undisclosed amount, plus costs, and begrudgingly apologised to Aziz (after having changed the law to legalise, including retrospectively, all SIS break-ins).

The man who caught one of the agents and took their vehicle's registration number, which identified them as SIS, was Dr David Small, a University of Canterbury lecturer and one of the speakers at the Trading With Our Lives conference, which was being held to counter the APEC Ministerial. At the time of catching the spook, David was wearing his conference name tag, which identified him as "David Small, Corso" (one of the agencies involved in Trading With Our Lives).

A week after catching the agents, David's home was raided by police looking for "bombmaking materials" (Aziz's home had already been raided by the cops. He was away, accompanying a Mexican speaker from Trading With Our Lives, on a national speaking tour). These raids arose from a still unexplained, very realistic fake bomb left at the Christchurch City Council building (the City Council had ordered GATT Watchdog to remove a previously approved anti-APEC window display from the Council building). Incredibly, the "bomb" was in a cardboard box labelled, in handwriting, "APEC Bomb"! Even stranger, the "bomb" was planted after the APEC Ministerial was over, when the Ministers, bureaucrats, journalists and security men had gone home. Needless to say, nothing was ever found in the raids and nobody was ever charged with anything.

David Small also sued the Government, specifically the Police. He did not take court action frivo-lously, but only after he had exhausted the proper channels. Firstly, he complained to the Inspector General of Intelligence and Security. As with Aziz’s complaint to the same source, no wrongdoing was detected. Unlike Aziz, he also compained to the Police Complaints Authority. Same result. In October 1999, he filed his claim with the Christchurch High Court, suing the Crown for $300,000 damages, alleging trespass and a breach of his rights under the Bill of Rights. The media later asked him why he sued for that much – one reason is that to get it heard in the High Court (which he wanted, in preference to the District Court) you have to sue for at least $200,000.

The case came to trial in April 2000. The hearing, before Justice Willie Young, took three full days (it had been set down for two). I was able to attend all but the final afternoon session.

"We Think Aziz Has Been A Very Naughty Boy"

These were the immortal first words uttered by the cop leading the late night raid on Aziz Choudry’s home, to the bemusement of his flatmate.

This and a whole lot more were amongst the gems revealed in the evidence in David’s case. I was one of those who seriously doubted the wisdom of his representing himself (Aziz was represented by leading Auckland Queen’s Counsel, Rodney Harrison). I needn’t have worried – David did an absolutely brilliant job, and indeed, his representing himself seemed to work in his favour as far as the judge was concerned. He was allowed to take the case into areas that frankly surprised me (and him), not to mention absolutely horrifying the spies of both the Police and the SIS. David played the game – he wore a nice suit and tie; he said "Your Honour" the right number of times to keep the judge sweet; he wasn’t a smart arse; he didn’t lose his temper when cross examining cops who absolutely bristled with antagonism towards him (or who suddenly developed mass amnesia); and most importantly, he stuck doggedly to the point, backed up by wads of both Police and SIS documents secured during the discovery process. He performed superbly, in front of a very interested public gallery that included his parents throughout, plus several siblings and their children. His tying the Police up in knots reduced the gallery to loud laughter more than once, something which displeased the judge.

Several factors worked in his favour. David was the plaintiff, not the defendant. He had the State on the back foot (as Aziz had done in his landmark case against the SIS). If Aziz’s case had not already created a major legal and political milestone, then this subsequent case would not have got off the ground. So much of it would have been mere conjecture and speculation. But it is now a matter of indisputable fact that it was the SIS whom David caught in the act of breaking into Aziz’s house (although several of the Police witnesses in David’s case persisted in referring to "another agency" and "the so-called SIS". On several of the times that David referred to the burglary at Aziz’s, these cops objected that there was no burglary for them to investigate, as the SIS were acting lawfully under one of their own warrants. The Police preferred to call it "the events". Of course, as Aziz’s case established, the SIS agents were not acting lawfully, because their warrants gave them no legal right to break and enter). Therefore the judge was happy for David to probe relentlessly into many aspects of the Police/SIS relationship. This was that rare occasion where an individual had every legal right to closely examine the workings of the secret State, and subject it to very critical scrutiny.

Not only that but David, the legal tyro, won a couple of very important legal points right at the outset of the hearing. The law relating to material produced in the discovery process usually prohibits it being used in any other case. David successfully applied to be allowed to make use of SIS documents uncovered in Aziz’s case. These he used, with telling effect, against Police witnesses. Their line was that that they didn’t know the identity of the person who caught the SIS agents, that nobody, and certainly not the SIS, had told them it was David, and that their subsequent raids of his and Aziz’s homes were unrelated to that. But David was able to produce an SIS report detailing how the unidentified agent ("A") had been caught by someone wearing a conference name tag clearly identifying him as "David Small, Corso".

The other legal point he won was the right to cross examine "his" Police witnesses. He only discovered days before the hearing that the hapless Crown lawyer did not intend calling specific cops that David considered vital to his case. He unsuccessfully applied for an adjournment, then had to have the relevant cops subpoenaed (in one case, having to be at the Christchurch Central Police Station before 7 a.m. on the Saturday before the case started, to personally serve a subpoena on a very surprised cop). The rules of evidence usually prevent a lawyer cross examining his own witnesses. In this case, the judge allowed it, citing his own extensive experience of dealing with hostile witnesses (and some of these cops were distinctly hostile to David, under cross examination). The judge then sat back and let David grill these fellows for hours at a stretch – it was fascinating to observe their body language on the witness stand.

Repeatedly they looked towards the judge before answering a question, presumably waiting for a ruling from him that they didn’t have to answer it. The judge ignored them, leaving them to reluctantly answer the endless probing questions. The judge only stopped David on a couple of occasions (and denied his request to present additional evidence on his own behalf). He was noticeably tougher on the Crown lawyer, interrupting him several times to ask questions and query the direction of his argument. Not only that, but the judge ordered the Crown to produce an additional Police witness for cross examination; he ordered a Police surveillance photograph of David mentioned by a Police witness to be produced; and, when the allocated two days had finished, rescheduled things so that a third full day was available to finish the case.

One thing needs to be clarified – David made no attempt to find out what the SIS was up to at Aziz’s place that fateful night. Accordingly, we are none the wiser. All sorts of speculative scenarios have been suggested (see previous Watchdogs. Ed.). It is illegal to identify any member of the SIS, except the Director, so the agents caught by David have never been identified in any way. It would have been very difficult to have had anyone from the SIS produced in court as a witness, and if David had tried, the Clark government would have fought it through every court available. The SIS had found its one day in the Christchurch High Court (1998; Aziz’s case) sufficiently traumatic to warrant a fullscale constitutional battle by the Shipley government to prevent any further legal scrutiny of its activities. The prospect of its spies being cross examined and their operations scrutinised would have induced cardiac arrest. David wisely decided that he didn’t need that fight, and confined his legal action to the Police. But the SIS was a ghostly presence throughout. When David’s brother naively took photos in the court, he was hauled up before the Bench. The judge’s question to the Crown lawyer was telling: "Are you concerned about anyone in court having his photo taken?" The answer was "no", and the erring brother was let off with a warning.

"That David Small Is A Fucking Arsehole"

These were the immortal words uttered by one Police witness, having just been grilled at great length, to another one waiting to give evidence (presumably thinking that he was out of public ear-shot). That gives you a reasonably vivid snapshot of Police reaction to having their dirty little secrets publicly exposed over three long days. Presumably, they decided to fight the claim (rather than settling out of court, as happened with Aziz) because they must have thought that they had an arguable case, and because they are used to their operations, procedures and intelligence gathering methods being scrutinised in open court. If so, they badly miscalculated.

David had one trump card in his hand – the stack of Police reports, job sheets, and all manner of other documentation that he had secured under the pre-trial discovery process. He asked every cop on the stand whether they could remember attending various specific Police meetings and briefings to discuss matters connected with this whole chain of events. Invariably, they all said that it was four years ago, they couldn’t remember, etc, etc. The prize goes to the cop who testified that he’d lost his notebook in the Avon River during a subsequent incident. After each cop had proclaimed amnesia, David would produce the relevant Police documents to prove that the witness had indeed attended those meetings. One cop was adamant that his colleague who had recorded him as present was mistaken and that he could definitely remember not attending any such meeting. The judge was intrigued, asking him that if he couldn’t remember all manner of other things that he was supposed to have done, how come he could so clearly remember something that he hadn’t done?

David’s patient but extremely insistent cross examination of these Police witnesses extracted admissions that they’d discussed the evidence during the course of this case (a legal no no); he queried, at length, cover sheets on relevant files that appeared to have been tampered with, to remove mention of the SIS. The judge asked the Crown lawyer to provide an explanation – he couldn’t.

The Police evidence, elicited under his cross examination, was absolutely fascinating, and raised more than a few eyebrows in the court itself, and throughout the country. The rank and file uniformed plod who was sent out to investigate David’s original burglary complaint testified that "acting on a hunch", he decided to check nearby motels for the burglars (David had provided the getaway car’s registration number; it had out of town registration plates, which the media later famously traced to an SIS front company in Wellington). The cop duly located it in a nearby motel. There was never any direct contact between the Police and the SIS agents. The cop asked for back up and additional cars were sent. At this point, he got a radio message to ring Control. Interestingly, he left his car and made the call from a public phone in a shop (presumably so that the likes of reporters, using scanners tuned to Police radio channels, wouldn’t hear about the SIS involvement). His superiors told him to drop the whole matter, which he duly did.

The commander of the Criminal Intelligence Service (CIS) of the Christchurch Police testified that he got a call at home that night from Control, asking if any of his undercover agents were up to any "funny tricks". He replied "no". Based on what he was told, he decided that the offenders did not fit the stereotype of burglars. David asked him how he knew. "Cop intuition" was the answer (court transcript). "I mean burglars are burglars and these guys didn’t look like burglars" (ibid). He was pressed for more particulars. He replied that the "burglars" were driving a late model vehicle (note to SIS training officers: make sure your spies look like tattooed Maoris, and that they drive old rustbuckets. Then they will get away with the cops assuming that they are common or garden burglars). He duly rang the Christchurch head of the SIS, his regular contact, on the latter’s cellphone and asked if the people in the motel were his agents. He was told "yes". He further asked Mr X if those agents were acting in accordance with an SIS warrant. Once again, he was told "yes". David asked if any Police officer asked to see the warrant, or did they simply take the word of the SIS? The latter, which appears to be standard Police procedure in dealings with the SIS. The CIS commander then instructed the cops to abandon the operation to apprehend the "burglars". Light was also shed on the relationship between the CIS and grassroots cops. Several days after the incident, cops from the Hornby Police Station (the closest to Aziz’s house) contacted Corso to try and arrange access to the house (Aziz was in the North Island) to fingerprint it, as part of a routine burglary inquiry (Corso told them not to worry, as they had a fair idea of who was responsible). When questioned about this, the CIS commander confirmed that it keeps a large amount of its work secret from other cops i.e. it had not officially stated that it knew that the "burglars" were SIS agents. Indeed one cop told David, in the days after the incident, that he’d been told to "keep your bloody nose out of it" by CIS (he denied saying that, when cross examined).

Another CIS detective testified that, on that same night, he received a call from his SIS contact (so that’s two separate calls acknowledged, to and from the SIS, that night). The spook asked for help in calling off the cops who were about to pounce on the motel housing his agents. That message was duly passed on up the chain of command and carried out. He hinted at the mood by describing the SIS man as "far from comfortable" during their conversation and "uncomfortable" about reporting their predicament to the cops. The judge asked this detective: "Human nature being what it is, I suppose that you and (two other detectives) would have had a few laughs about the predicament the Security Intelligence Service got into?" Answer: "Yes, that is correct" (court transcript). I think we can take it as read that the cops would have been rolling about the floor screaming with laughter, and that it would soon have become the hot gossip in the copshop. "Hear about the SISsies? They can’t even pull off a break-in without getting caught and having our guys sent after them". You bet they would have had a "few laughs". They probably still are.

Watching The Detectives

Aziz’s case had not involved the Police and, accordingly, their role in the whole affair had never been examined up until now. David’s case opened a very wriggly can of worms. His argument was that there was no reason, other than his having caught the SIS agents, for him to have come to Police attention. He had no convictions, no criminal record. Cop after cop testified that yes, they had no reason to be concerned about him. In their jargon, he was a "person of no significance". The officer in charge of security at the 1996 APEC Ministerial accepted that David had been granted media accreditation to the conference, something which would have involved him passing a security vetting (and something which was withdrawn, on security grounds, from Corso’s Joe Davies, during the 1999 APEC Ministerial, in Christchurch). The cops testified that before an event such as the APEC Minis-terial, several specific Christchurch houses and premises would be placed under routine surveillance. They confirmed that Aziz’s house was such a "target", and that they were not surprised to learn that it was also an SIS target. They testified that they knew all the people who came and went from the Christchurch Corso building (from which all sorts of protests have been organised).

They testified that he was not regarded as any sort of "risk". They testified that they knew the people involved in "CAFCA/AFIA" (Action For an Independent Aotearoa), a murky conglomerate protest group which they believed to be the mastermind behind all manner of protests, and to be located in the Corso building (a quite wrong assumption on their behalf, I might add. CAFCA and AFIA were entirely separate organisations, with very different interests and goals. CAFCA has never been based in the Corso building). David’s witnesses named the organisers of Trading With Our Lives as the then GATT Watchdog committee of Leigh Cookson, Aziz, Neil Wright, and myself. David never has been on the committee, nor even a GATT Watchdog member. Interestingly, apart from Aziz, none of the other three organisers were ever even contacted by the Police, let alone raided, in connection with the hoax bomb or anything else. I put out the initial GATT Watchdog press release (the only one that’s ever gone out in my name) fingering the SIS as being responsible for the break-in at Aziz’s place, and saying that the Police raids were a dirty tricks campaign to smear us as terrorists. I never saw or heard a dicky bird from the State. The Police issued four search warrants after the hoax bomb – in court they testified that Aziz was the prime suspect and David was Number Two. The other two were not named in court, but it is a matter of fact that neither of them was in any way involved with GATT Watchdog or organising Trading With Our Lives (indeed, I’d never heard of one of them).

Nor was there any suggestion that David had acted in any other than a proper way in attempting to apprehend burglars and reporting them to the Police. Don’t take my word for it – try this, from a letter that David received from the Director of the SIS: "I note your concern as to the perception that the Service may have of you. For what it is worth, my personal perception is that your actions as described above were entirely appropriate and what I would expect of any responsible citizen. While the Service was not pleased about what happened, its displeasure has been directed at itself, not you" (1/12/99; quoted in court transcript).

So how did David Small suddenly become the back up prime suspect in this hoax bomb affair? According to the Police witnesses, because of his association with Aziz. The cops, who routinely mispronounced Aziz’s surname as "Chowdry", described him as "surly", "an habitual complainer about the Police", and a "person" who lived in an "overgrown premises" (people don’t live in houses, according to Policespeak; persons occupy premises). It was simply stated as a given, by Police witnesses, that association with Aziz was sufficient cause for suspicion that David was involved in a crime. Even more so then if he was Aziz’s flatmate. This was the thrust of Police evidence – that they mistakenly believed that David lived at Aziz’s place, based on the fact that it was he who caught the SIS agents there. There was extremely comical testimony given of their attempts to find him once the initial raid on Aziz’s house established that David did not live there – they scoured electrical supply records (an interesting revelation of Police modus operandi); once they’d established that he lived in Riccarton Road, they considered a door knock of that road (the mind boggles). David asked a glaringly obvious question – "did you look me up in the phone book? Because I was in it". Apparently they didn’t. Even stranger, why did they search Aziz’s looking for David when his complaint to the Police about the burglars the previous weekend listed his Riccarton Road address?

The most bizarre testimony about why they thought that David lived at Aziz’s (he has never spent so much as one night there) was that of the grassroots plod who was instructed by CIS to drive up and down Aziz’s street, once only, on a week day before the APEC Ministerial, to observe any "persons or vehicles upon the premises". By wonderful coincidence, a "male Caucasian on a bicycle" came pedalling out at that exact moment, and that information, relayed to CIS, was cited (with a straight face) as possible evidence of David’s living there. When pressed for a more convincing identification, the cop further stated that the bicycle had "two wheels".

In his closing address, David assailed this string of Police evidence that casually asserted that mere association with Aziz by this otherwise blameless citizen was enough to convert David into a major suspect. The cops made it abundantly clear that they have had it in for Aziz for a long time but David made the telling point that they had no reason to be interested in Aziz either. He is not a criminal. Any Police interest is purely political surveillance, the criminalisation of dissent. "The Police also breached my right, under section 17 of the Bill of Rights Act, to freedom of association by the way in which they were influenced by my association, through Corso, with Aziz Choudry, who is a principled and sincere and public advocate for social justice, who, despite having the Police and SIS keeping a very close eye on him, has…only one relatively minor conviction".

One cop’s evidence was in stark contrast to this "we had no previous interest in you" line. He was the CIS detective whom had been rung on the night of the bungled SIS break-in by his SIS contact. He was upfront and unrepentant about his attitude to David, stating that he had been aware of him for 10-15 years, dating back to articles that David had written in Corso’s Overview in the mid 1980s. These articles were nothing to do with free trade, but were about the Kanak independence struggle, in New Caledonia (Kanaky). David’s then wife, Susanna Ounei, is a Kanak, and had a high profile in both her homeland and New Zealand as an advocate of independence. Both David and Susanna were public figures in New Zealand in the 1980s because of this issue (e.g. David staged a three week hunger strike outside the French Embassy, in Wellington, when refused permission to visit Kanaky, and his wife). The Police had refused David a firearms licence because they were apparently afraid of Susanna getting access to weapons (David won the case on appeal; so he’s beaten the Police in court before. He also beat a couple of charges arising from protests during the 1981 Springbok Tour). Susanna has been living back in Kanaky for a number of years. This same cop testified that he had a photo of David on file, dating from a 1989 Waitangi Day protest at Okains Bay (Banks Peninsula) – this was the photo that the judge ordered produced in court. Further, that David’s file included entries such as the fact that he was noted attending a 1995 Information on Ireland quiz night in a Christchurch pub. This evidence of systematic surveillance spanning more than a decade, including monitoring articles and social nights out, raised eyebrows and was put on the front page by the Press. The judge asked the detective why the Police hold a file on David, given that he has no criminal record. "I don’t know", was the reply, accompanied by waffle about how people with no criminal record sometimes have driving offences that lead to them being on Police files. Crap. This is incontrovertible proof of political surveillance by the intelligence wing of the Police (which in other countries functions as a full blown Special Branch).

David asked this detective if he believed that he owed David an apology. The cop replied that he had been wrong in believing David to live with Aziz "but I still believe you to be a person who may have had knowledge of the placing of that device (the hoax bomb. Ed) because of your associations with Mr Choudry and various protest organisations. Because we didn’t find anything doesn’t necessarily mean to me on a personal basis that you had nothing to do with it" (court transcript). David: "So you are saying your belief of me is that I am the sort of person you would suspect of criminal activity and that the only reason I have no criminal convictions is that I have been clever enough not to have been caught yet?". Detective: "Not necessarily. I believe you to be a person who had knowledge of the placing of the device. I didn’t say you made it or placed it" (ibid). To sum up – to this day, that particular cop considers David a suspect in the hoax bomb affair.

Who Planted The "Bomb"?

This is one of the two major unanswered questions arising from this whole strange chain of events. The other one is, of course, what were the SIS agents up to at Aziz’s the night David caught them? No explanation has ever been forthcoming on that one, and we’re still none the wiser.

So, who did plant the hoax bomb at the Christchurch City Council building? As already detailed, at least one CIS detective was happy to testify that he still thought that David had something to do with it. All the cops who gave evidence made much of the fact that Aziz had been described as "angry" when GATT Watchdog was told by the City Council to remove its previously approved anti-APEC display from the front window of the Council building (the Council has learned its lesson, leaving a similar window display well alone during the 1999 APEC Ministerial, in Christchurch). So this apparently was enough to make Aziz the prime suspect, and David the Number Two by dint of his "association" with Aziz. It’s worth noting that, by the time of the Police raid on David’s house, the "offence" being investigated was effectively no longer anything to do with bombs, hoax or otherwise, but the much lesser one of wasting Police time (by making them investigate and detonate a hoax bomb in case it was a real one).

Aziz and David were regarded as prime suspects because of their alleged involvement in GATT Watchdog. So GATT Watchdog was a suspect per se. As a GATT Watchdog committee member, in 1996 and now, you can take it from me that we had nothing to do with it. Even if you don’t believe me, stop and think: what would we hope to gain by carrying out such an action? Would it be to our advantage or disadvantage? The answer is obvious. Even the cops didn’t press that one – apart from Aziz, no other member of the GATT Watchdog committee was even approached by the Police.

Could it have been extremists from our side of the fence? Presumably that was the reasoning behind the cops issuing two other search warrants for people who had nothing to do with GATT Watchdog. All our own inquiries around the political scene have come up with nothing. I think we need to look over the other side of the fence.

David has no doubt who planted it – the SIS. The judge highlighted this conclusion when reading David’s brief of evidence; David confirmed it but said that it was not central to his case, because he had no way of proving it one way or another. It was certainly a suspiciously well made hoax bomb. Police witnesses described it as "sophisticated", and it was good enough to fool the explosives expert called to the scene to examine it. He ordered it detonated, and only after that did he pronounce it a hoax. The conclusion was that it was made by somebody who knew what s/he was doing, and who had the ability to make a real bomb. Most extraordinarily, the cardboard box containing it had the words "APEC Bomb" handwritten on it (handwriting samples were among the items sought by Police in their searches of Aziz and David’s houses). Of all the things that GATT Watchdog may theoreti-cally have written on a hoax bomb, "APEC Bomb" does not rank highly.

David had pursued the matter. He wrote to the Commissioner of Police and the Minister of Police, among others, asking what inquiries had the Police made to establish the whereabouts of the SIS agents (the ones he’d caught) when the hoax bomb was planted. Funnily enough, they hadn’t made any, and seemed puzzled at the suggestion.

GATT Watchdog has no such qualms. In its press release after the judgement, it said: "From day one, GATT Watchdog correctly identified the burglars at Mr Choudry’s house as SIS agents. We have consistently been proved correct and legally vindicated in courts of law over the past four years, in spite of being officially stonewalled all the way in pursuit of the truth. Who knows what would have happened had we not nipped in the bud what was obviously a politically motivated, secret State dirty tricks operation? The hoax bomb episode alone has all the hallmarks of classic agents provocateur tactics" (press release, "’We Were Right – Again; GATT Watchdog on APEC SIS/Police Debacle’", 8/5/00). It was drawing a long bow to expect a judge to accept this argument and, surprise, surprise, he didn’t. But it didn’t matter in the context of the case. The hoax bomb episode remains unsolved – we have our own very strong suspicions about who is responsible.

Cock Up Or Conspiracy? The Judge Rules It Was The Former

The gist of David’s claim was that he was the innocent victim of a conspiracy between the SIS and the Police, that he was punished by a trumped up Police raid because he had inadvertently caught the SIS agents in flagrante delicto, and that the SIS had got their mates in the cops to get him because he’d embarrassed the spies. This was always going to be a difficult case to prove, because he didn’t have any "smoking gun" evidence and was never likely to get any.

Interestingly, in many respects, the court case was a no contest, because the Crown lawyer admitted Police liability from the outset, accepting that the search was illegal because of a lack of grounds. Several times he stated that the evidence was not in question, and that the only thing to be decided was how much compensation should be paid to David (he offered $10,000, in his closing address). He apologised, on behalf of the Crown. The judge took all this on board and a couple of times stopped David, saying that as his version of events was accepted by both sides, there was no need to cross examine Police witnesses about the details of the search of his house (for example). But the Crown ascribed all the events to cock up, rejecting utterly any malice aforethought towards David, and definitely rejecting any suggestion of a conspiracy. Police actions were described by the Crown lawyer as "simply quite bad negligence" (Press, 20/4/00), "speculation and error" (ibid), and, in summary, "an honest mistake". He urged the judge not to award exemplary damages and said that it is an unpalatable fact that some protest groups have to be kept under surveillance. He suggested that, otherwise, Christchurch could find itself facing the same level of serious civil disorder that has become known as the Battle of Seattle (the mass protests that shut down the December 1999 World Trade Organisation’s illfated Millennium Round meeting).

The judge reserved his decision. He didn’t take long to make up his mind, just over a fortnight (in Aziz’s various cases, reserved decisions took a month). The 26 page judgement was delivered in May 2000. He rejected conspiracy (surprise, surprise) and accepted cock up. In virtually every area where there were two different explanations, he gave the Police the benefit of the doubt.

The judgement is worth quoting. "…there is no evidence that Dr Small is anything other than a law abiding citizen…but such involvement as he had (with GATT Watchdog. Ed.) was at a level which could not fairly suggest involvement in the hoax bomb incident…The procedure employed to obtain the second search warrant (to search David’s house. Ed.) was indefensible". The judge found that it wrongly described David as Aziz’s flatmate, which had never been true, and that it provided no fac-tual basis for any evidence that David had anything to do with the hoax bomb. "The obtaining of the search warrant was slap dash to say the least". He found that the relevant officer did not act out of malice: "The only sensible explanation for his behaviour in relation to the obtaining of a search warrant is that he was acting on automatic pilot". But having found that, he ruled that David could not seek damages for trespass, because the 1950 Crown Proceedings Act exempts Crown judicial officers from liability in these sorts of circumstances. On legal grounds, he also declined to make a ruling as to whether the warrant was invalid.

The judge ruled that although David’s catching the SIS agents and the Police raid on his house were causally linked, he could find no evidence to support David’s claim that the raid was "payback" for catching the spies. He described the unexplained altering of Police file cover sheets as "all very unsatisfactory", but not sinister. He accepted that the Police were duty bound to take an interest in those who might be opposed to the APEC Ministerial, but in contrast, the hoax bomb incident only involved an offence of wasting Police time. "I rather think that this is why the identification of suspects was carried out in such an unsophisticated way".

In assessing the amount of compensation, the judge ruled that David had courted publicity about the whole thing. "It provided Dr Small and his friends with an opportunity to tweak the tails of both institutions (the SIS and the Police. Ed.). Indeed, the unresponsiveness of those institutions to complaints and inquiries by Mr Choudry and Dr Small and the opaqueness of such answers as were given served to provide further opportunities for tail tweaking…But this case is not just to be swept under the carpet". The judge ruled that David was "entitled to resent" the search; that he saw it as "unjusti-fied harassment of him as an activist who, by accident, had become caught up in an SIS covert operation…All of this was exacerbated by the stonewalling responses he received to his inquiries…It was understandable that he took the view that he was being lied to…".

Finally he ruled that the search was in breach of section 21 of the NZ Bill of Rights Act as being unreasonable, and awarded David $20,000 compensation (David later claimed $8,500 costs; he settled for $5,500. He didn’t receive anything until he took the unprecedented step, under section 24 of the 1950 Crown Proceedings Act, of obtaining a certificate telling the Governor-General to get him the money). The key paragraph in his judgement is worth quoting in full: "It is, I suppose, human nature for some Police officers to view an activist such as Dr Small with suspicion - as someone who is on the other side. Of course, some Police officers are more prone to this mindset than others. Given Police responsibilities for security, Police officers are perfectly entitled to maintain intelligence files on those who are, or conceivably could be, security threats. Such people may well include political activists. But there is a difference between the Police maintaining an interest in political activists (which I accept is legitimate) and the Police equating political activism with either the commission of criminal offences or with a sufficient propensity to commit criminal offences to justify the obtaining of search warrants when an offence has been committed. In his closing submission Dr Small took the view that his freedoms of thought, expression and association and not merely his freedom from unreasonable search had been infringed. Although there was an element of hyperbole in all of this, there is also a sense in which his claims as to this are right. To say that Dr Small's property was searched because he is an activist in what he regards as social justice causes involves some tele-scoping of the thought processes of the Police. But it is nonetheless true. From the point of view of the Police, I think that this is the worst aspect of this case". The judge clearly recognised that Police practices revealed in this case amounted to the criminalisation of political dissent. That is an ominous reality. The Police were keen to put the whole matter behind them, and announced that they wouldn’t appeal.

The "Proper Channels" Don’t Work

There was high media interest in this case; the hearing itself attracted national coverage; and when David called a press conference at the University of Canterbury Staff Club to release the judgement, and comment on the case, there was a major turnout from all branches of the media (there were six separate TV crews there alone). David had this to say:

"Justice Young's judgement is a total vindication of what I have been saying about this series of events for the last four years. I said two things: that the Police had absolutely no grounds to suspect me of being involved in the hoax bomb; and that my responsible and public-spirited actions in appre-hending the SIS agents led directly to my house being searched.

"The court hearing also revealed disturbing facts that had not previously come to light, notably the inability or refusal of the intelligence-gathering section of the Police (the Criminal Intelligence Service or CIS) to distinguish between political dissent and criminal activity. During the hearing, the CIS officer who specialised in political intelligence was frank and thoroughly unapologetic about his conflation of political and criminal matters in this case and as part of normal CIS practice.

"This amounts to blatant police harassment of law-abiding citizens solely because they hold views contrary to the dominant political doctrines of the day. The matter at issue in this case had previously been the subject of investigations by the Police Complaints Authority (PCA) and the Inspector-General of Intelligence and Security. Both incorrectly found nothing improper in the Police search of my house.

"Only one of the eight police officers who gave evidence in the hearing of this case confirmed that he had been interviewed during the PCA investigation. And this was the officer whose evidence in the hearing led the judge to conclude, in effect, that the search was unjustifiable political harassment.

"The PCA concluded that it was not unreasonable for the Police to suspect me of involvement in the hoax bomb because in an interview I ‘confirmed a loose association with (GATT Watchdog), …empathised with its principles and engaged in some activities including speaking to meetings and taking part in a demonstration conducted on the week of the APEC summit’. In coming to the conclusion it did, the PCA itself seems to approve of the kind of political harassment that Justice Young considered the worst aspect of this case. The Inspector-General of Intelligence and Security was asked only about the actions of the SIS and not the Police, but he nevertheless volunteered the view that ‘it was not unreasonable for the Police to include Dr Small in the application for search warrant’.

"Both these ‘investigations’ were based on questionable assumptions and flawed processes and, not surprisingly, therefore, reached wrong conclusions. As a result of my experience, I have no confi-dence at all in either of these complaints procedures.

"I took legal action against the Crown only as a last resort after exhausting every other channel available to me. Until very recently, I would have been satisfied with an honest explanation and a simple apology. The Crown's persistently deceitful and stubborn refusal to concede any wrongdoing at all has ended up wasting an extraordinary amount of my time and energy and an irresponsibly large amount of public money. Even when, at the last minute, the Crown finally acknowledged legal liability, they still tried to claim that it was all just an honest mistake and would not properly engage in settlement negotiations.

"Quite apart from the violation of my right to be free from unreasonable search, it is disgraceful that I should have had to endure the emotional anguish and financial risk of private litigation against the Crown to obtain justice in this matter.

"To date, the Government has only apologised for what it has been claiming was an honest mistake. However, as Justice Young's judgement makes clear, there was much worse than an honest mistake involved in the Police decision to search my house. Therefore, I do not accept the Government's apology. I call on the Government to acknowledge the judge's ruling and apologise to me for the po-litical harassment that resulted in the violation of my rights to freedom of thought, expression and association and to my right to be free from unreasonable search. Further, I draw the Government's attention to the brazenly unrepentant attitude exhibited by senior members of the Criminal Intelligence Service of the Police in relation to the surveillance of political dissidents and I call on the Government to ensure that all Police officers are made aware of the difference between political and criminal activity.

"I also call on the Government to review and overhaul the terms of reference and procedural methods adopted by the PCA and the Inspector-General of Intelligence and Security" (David Small, press release, "Court declares: Police searched academic’s house because he is a social justice activist", 8/5/00).

It’s worth reiterating that Aziz Choudry also complained to the Inspector-General of Intelligence and Security about the SIS breaking into his house. Without ever once confirming any SIS involvement, the Inspector-General ruled that "nothing unlawful" had taken place (code language for: the spies had a warrant, so it’s OK). Aziz went to court, and got the historic ruling that the SIS had never had the legal right to break into anyone’s place. The Inspector-General then admitted that his finding, based on his mistaken interpretation of the law, was wrong. Both Aziz and David went to the "proper channels" – both were mucked around and those authorities proven wrong in the subsequent court cases. Why should anyone else have faith in those "proper channels"? David has welcomed the review into the PCA, announced by the Government in the aftermath of the fatal Police shooting of Steven Wallace, in Waitara.

David was asked by the media how he felt about suing for $300,000 and being awarded $20,000. He replied that the case had never been about money. It was about vindication, clearing his name of being a suspect in the murky hoax bomb affair, and getting the truth about a very disturbing chain of events. He continues to press the Government for a proper apology but Margaret Wilson, the Attorney-General, has taken issue with the judgement by writing: "…There is no suggestion that you were subjected to the search of your Riccarton Road residence because of your political activities…As I have said previously, while I can understand your concern to see improvements in the functioning of the two authorities who looked into your case, it would not be appropriate for me as Attorney-General to engage in that task" (letter to David Small, 15/6/00). David asked her who, therefore, is the appro-priate authority? He concluded: "…Finally, can I say that, from what I had known of you, I held the genuine hope that, once this matter was brought to your attention, it would be dealt with in an in-formed and considered manner. I have found four years of lies and cover ups on this matter ex-tremely draining and disillusioning. To be honest, I am not surprised at the Police fobbing me off and trying to cover their tracks. But my heart sank when I found the same old stuff with your signature under it. I look forward, albeit with far diminished expectations, to your reply" (letter to Attorney-General, 20/6/00). The reply contradicted Wilson’s first letter: "You may be assured that nothing in my letter of 15 June is intended to undermine or cast doubt on Justice Young’s findings…The Judge found that due to the lack of other cogent grounds in the search warrant it could be said that the motive for getting the initial warrant with your name included arose from your political activities as they were believed (wrongly) to be…" (letter to David Small, 6/7/00).

Are We Still "Enemies Of The State"?

GATT Watchdog’s Leigh Cookson also released a statement at David’s press conference. Predictably, the media ignored that. It’s worth quoting:

"This chain of events…took place in the context of GATT Watchdog organising activities opposed to the Government’s slavish adherence to extreme policies of unrestricted free trade and foreign in-vestment just prior to 1996’s APEC Trade Ministers Meeting.

"Presumably the National government regarded GATT Watchdog and associates as enemies of the State. We demand to know if the present Government still holds to that view, and if so on what grounds…

"Now that the international pendulum is swinging so firmly towards GATT Watchdog’s point of view on globalisation why are organisations such as ourselves still being treated as enemies of the State?" (press release, "’We Were Right – Again"; GATT Watchdog on APEC SIS/Police Debacle’", 8/5/00).

Apart from one reporter at David’s press conference asking if it isn’t fair enough for the State to monitor political activists ("because nobody had heard of the Oklahoma bomber beforehand either"), media coverage was very good and will run for a good while yet. This is one story that has been going strong for four years and is nowhere near finished yet. Bruce Ansley wrote a hard hitting Listener editorial ("SOS Security", 6/5/00 – before the judgement was released):

"As Small and the Police slugged it out in court, Switzerland’s International Institute for Management Development produced new world competitiveness ratings. New Zealand rated number one for lack of protectionism, lack of price controls and access to foreign finance. We rated near bottom for the brain drain, export growth, current account balance and domestic savings. Despite a decade of the world’s most advanced economic reform, we remain among the world’s most economically challenged. You might conclude that the nation’s leading economic subversives are nowhere near the courtrooms with Choudry and Small. Our best advice to those masterminds is to listen for clicks on the line, keep those ministerial houses locked at all times, and always take a hard hat to Washington". That puts the whole thing very succinctly into context, and into perspective. The enemies of the New Zealand people are definitely not those in the Christchurch Corso building; they are to be found in much more salubrious surroundings, although some of their more cackhanded henchmen can sometimes be caught floundering about in bushes. Inadvertently, David made a very big catch. For someone fighting Goliath, David Small has got a cinematically appropriate name. In this case, Small has won a very big victory.


[1] GATT = General Agreement on Tariffs and Trade; now the World Trade Organisation, headed by New Zealand’s very own Mike Moore. And they can have him. But I digress.

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