Herald on Sunday editorial: Secret justice no justice at all

Photo / APN

This newspaper took a circumspect view of the "anti-terror" raids by armed police in October 2007.

We considered it proper to give police a heavily qualified benefit of the doubt and remarked that "it would be idle and indeed unwise to speculate on what cards the police hold".

But we added that "when the time comes to lay [the cards] on the table, they had better add up to a winning hand".

Now, just shy of four years after the event, the police appear to be folding and walking away from the game. The Crown has dropped charges against 13 of the 17 accused. The other four will stand trial in Feburary on charges of participating in an organised criminal group and firearms charges.

The change of heart follows a Supreme Court decision ruling inadmissible certain evidence gathered in the covert police operation before the arrests. But no New Zealander should feel happy with the outcome.

The Supreme Court's decision and reasoning are suppressed until the case against the remaining four is disposed of, though an appeal is being lodged against that suppression.

The events alleged to have preceded the 2007 arrests may have been terrorist activity, legitimate dissent or individuals playing silly buggers. (This last possibility was raised by a conversation, reported in proceedings brought against the Dominion Post for contempt of court, about a plan to lob a bus on to President George W. Bush with a large catapult). But precisely what they were will not be established unless the accused are brought before a court of law to have the charges tested before a jury. That right was enshrined in the legal system by which we operate almost 800 years ago with the signing of Magna Carta.

Now most of the original defendants will not get their day in court. Bit by bit, the police case has been pared back, along with the rights of the defendants. The already uneasy relationship between Tuhoe and the Crown has been further battered and dozens - perhaps hundreds - of people have been put through years of stress and expense.

It is reasonable that the state should remain tight-lipped about what went on in Te Urewera until after the rest of the criminal charges have been disposed of - or abandoned. But the secrecy that has shrouded this affair from the beginning does not encourage optimism we will ever be told.

Yet official openness is what is needed. The prosecution of this matter, the first serious case brought under the Terrorism Suppression Act, has been a conspicuous mess. The charges' validity under "incoherent" legislation has failed to satisfy the Solicitor General and now evidence without which the Crown felt unable to proceed has been ruled inadmissible, a finding which is at least suggestive of flaws in investigation, procedure or interpretation of the law.

It is left to the Auckland Crown Solicitor saying that the delays in the case "together with findings made by the Supreme Court about the seriousness of their offending" makes it "not in the public interest" to proceed.

His turn of phrase is instructive. If these people posed a genuine threat, no delay would be too long in bringing them to justice. But he implies that the highest court in the land has grave doubts that what they did was as bad as the state alleges.

Sooner or later, and far better sooner than later, we are owed an explanation. Democracy and justice require no less when individuals are accused.