Covid-19 deniers and anti-lockdown protesters gathered at the TVNZ building in Auckland to protest the alert level 4 lockdown. Video / Cameron Pitney
Prominent lockdown critics and Covid-19 conspiracy theorists Billy TK and Vincent Eastwood have been found guilty of violating Covid-19 restrictions after a judge rejected their argument that their protest on the first day of the nation’s Delta lockdown was protected by the Bill of Rights.
Judge Peter Winter announced his decision this morning as the defendants stood in the dock in Auckland District Court, both stone-faced but shaking their heads. TK made a “tsk tsk” sound.
“You should be ashamed of yourself,” one man said loudly as supporters of the duo streamed out of the courtroom a short time later.
Violating the Covid-19 Public Health Response Act carries a punishment of up to six months’ jail and a $4000 fine. Judge Winter said today all options were on the table, including the possibility of discharge without conviction.
The duo spent three days in court in August for a judge-alone trial during which they both testified. Judge Winter allowed a lengthy adjournment so both sides could submit written legal arguments, focusing in part on whether the New Zealand Bill of Rights Act allowing freedom of assembly to protest should have superseded the lockdown order.
A senior police officer testified during the trial that TK - a musician, pastor and failed political candidate whose full name is William Desmond Te Kahika - called him on the first morning of the lockdown to let law enforcement know he was planning a protest of 200 to 300 people outside TVNZ headquarters in central Auckland that day.
“He was advised it was against the health order and he was liable to be arrested,” the officer testified. “He told me it was his right to protest.”
TK then posted a series of live videos on Facebook in which he encouraged people to show up to the protest. In one social media post, the judge noted, TK “advanced various theories now commonly accepted to be conspiracy theories as his reason for being present in contravention of the level 4 lockdown regulations”.
Despite warnings from police, TK testified he was surprised by his arrest because he believed freedom of speech and assembly should have taken precedence over lockdown orders.
Police arrested anti-lockdown protester Vincent Eastwood outside TVNZ in August 2021. Photo / Dean Purcell
Eastwood, an online broadcaster who had been travelling with TK when the lockdown was announced, also posted on social media encouraging people to turn out for the protest.
“No retreat and no surrender,” Eastwood said in one of the videos, which he later dismissed as theatrics to garner more attention on social media. “That is Spartan law. And by Spartan law, we will stand ... and fight.”
Video footage played repeatedly during the evidence phase of the trial showed him yelling through a megaphone with an increasingly desperate-sounding tone for fellow protesters to surround him and “protect” him as police approached in an effort to hand him a letter advising him the gathering was illegal.
He was terrified of police, he testified, describing his arrest that day and the panic attacks that followed as “the most traumatic experience I have ever suffered in my entire life”. The duo spent 28 hours in jail before they were released on bail the next day to await trial.
During a follow-up hearing last month, a prosecutor argued that it is not the judge’s role to evaluate the law itself but rather whether the law was violated. Defence lawyers Nathan Batts and Paul Borich KC, meanwhile, urged the judge to consider the wider picture concerning the lawfulness of the lockdown order.
At today’s hearing, which lasted only minutes, Judge Winter said he had considered the Bill of Rights argument before reaching his decision. He issued lawyers his full 28-page written decision at the conclusion of the hearing.
In the decision, he recapped the situation the nation was in when the lockdown was ordered at 11.59pm on August 17, 2021, “as a necessary response to the re-emergence of a significant threat to citizens from a renewed Covid-19 outbreak”.
Because the virus had been previously contained, only a small minority of the population had been exposed to the disease and were potentially resistant, he noted. The vaccine rollout, meanwhile, was “far from complete” with only about one-third of New Zealanders having received at least one jab.
“As such, there remained a genuine public interest in delaying an outbreak until everyone who chose to do, were able to have the opportunity of being vaccinated,” Winter wrote.
The right to protest, while recognised in the Bill of Rights Act, is “not an absolute right”, the judge said.
“The question involves how much one citizen has to tolerate in order to accommodate the rights and freedoms of others,” he added. “In the end, the law has to strike a necessary balance.”
Police allow William Te Kahika to finish his social media live stream as he is arrested at an August 2021 protest. Photo / Dean Purcell
It is clear, the judge added, that the law that allowed for the lockdown also restricted rights usually allowed under the Bill of Rights. But the Health Minister considered that such restrictions were justified by the circumstances, he wrote.
“Those rights included the right of public protest, for obvious reasons,” Judge Winter said.
“The courts have previously considered this issue and found that the Covid-19 pandemic could justify such restriction. This court does not have the jurisdiction to overturn that decision by judicial review even if it were incorrect. Such applications can only be made to the High Court. This court can therefore only find that the order was justified.”
The judge also disagreed with a defence argument that, even if the lockdown order was valid, there was an implicit exemption for peaceful protest.
“The context and the purpose of the order makes it clear the aim of the order is to minimise interactions between people, especially large groups of people that might attend the protest and who may then subsequently be hard to track within the community, in order to prevent an outbreak of Covid-19,” he said, adding that a protest exemption would be “clearly incompatible”.
In addition, Judge Winter rejected the notion that the defendants took reasonable steps to make sure there was social distancing or ensure the protest took place safely. TK was seen on video embracing some of those who attended.
“...Most, at least some of those who had been called into the protest by the defendants, were not taking even the most basic precautions such as wearing masks,” the judge said. “In fact, it would seem, that part of the protest action was to deliberately shun that form of protection as an act of defiance and protest.”
During the trial, lawyers for the defendants noted repeatedly that police had made no arrests at a much larger Black Lives Matter protest in June 2020 - when less restrictive restrictions were in place but gatherings of more than 100 were barred. But what happened at another protest not involving the defendants isn’t relevant, the judge responded in his judgment.
“What may or may not have happened in respect of that other protest, was not the subject of direct evidence in this trial,” he said.
