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Memo to Greg O’Connor

By Steven | April 18, 2011

It’s a bit of a worry when even the police don’t understand the rules of contempt of court.

Police Association President Greg O’Connor scores an F on his understanding of the sub judice rule, as evidenced by his appearance on Close Up to defend the police’s handling of the Tiki Taane arrest.

The sub judice rule says that when a case is before the courts, no-one is permitted to comment on it in a way that may prejudice the outcome.

O’Connor apparently decided that if Tiki Taane was going to flout the sub judice rules by making public statements, it was fair game for the police too. Let’s just hope he doesn’t apply that same reasoning to, say, burglary. The thing about the police is, they’re supposed to obey the law, even when others don’t.

O’Connor also seems to think that the sub judice rule is only there to protect defendants. Wrong. As our current Chief Justice made clear in a recent contempt case, comment that prejudices the prosecution can also be a contempt.

But I suspect that neither side has actually committed a contempt. If this matter goes to trial, it’s likely to be more than 6-8 months away – the time the Court of Appeal says it usually takes jurors to forget news stories. And the failed Fairfax contempt case (in which much more inflammatory material was published) rather suggests that the sub judice is something of a dead letter these days – unless the publication occurs very close to the trial. [Update: Tony Smith has just pointed out to me that since the offence is only punishable by 3 months in prison, there won’t be a jury, another reason to suggest that there has been no contempt here.]

[I suppose I should also note that O’Connor insisted that the arrest had nothing to do with Tiki Taane singing “Fuck the police”. But his account on Close Up of what the case was about was so incoherent that it’s hard to know what to think. He did suggest that Taane rarked up the crowd, and he was leading a chant of “Fuck the police” after a fight broke out on the dancefloor. The bouncer handled the fight, and the police withdrew, said O’Connor, as the mood turned ugly. They returned later for a quiet chat with Taane, he said. At this point, they had no intention to arrest him. Apparently then, whatever role the chanting had, it doesn’t seem to have been grounds for arrest and prosecution.

O’Connor then says Taane was uncooperative, refusing to give his address. (Taane’s account is here). In fact, Taane wasn’t obliged to give his address. And it’s difficult at this stage to see what he might have done that was disorderly, or likely to cause violence. O’Connor seems to realise this and says “there were still people around”. But again, it’s difficult to see where the incitement was at this point. On O’Connor’s account, it seems the police can only have formed an intention to arrest him because of his response to their questioning. If that’s so, he’s right that the arrest had nothing to do with the song. But it also seems to have had nothing to do with disorderly behaviour likely to cause violence to start or continue…

Topics: Contempt of Court | 14 Comments »

14 Responses to “Memo to Greg O’Connor”

  1. IdiotSavant Says:
    April 19th, 2011 at 4:25 pm

    But it also seems to have had nothing to do with disorderly behaviour likely to cause violence to start or continue…

    Unless the police think that they were the people incited, which is fairly nonsensical.

  2. metanarratives Says:
    April 20th, 2011 at 2:13 pm

    The thing about the police is, they’re supposed to obey the law, even when others don’t.

    The thing with the Police is society doesn’t really mind all too much in most instances when the Police don’t adhere to the law. Look to R v Shaheed [2002] 2 NZLR 377. Look to the lack of investigative independence of the Independent Police Conduct Authority.

    Greg O’Connor is a good salesman with the general public. He appeared at the Justice and Electoral Select Committee when hearing the
    Criminal Procedure (Reform and Modernisation) Bill and asked the select committee to consider changing the law that makes Police subject to the OIA and the statutory criminal disclosure regime, claiming it was unnecessary and burdensome on police investigations.

    Side note, an interesting contempt case has come out – R v Tedjame-Mortty [2011] EWCA Crim Case Number 201006818 – on how judges ought to investigate an alleged contempt. Apparently a judge ought not to raise their voice, take an unpleasant tone, be “rude”, “harsh” or “sarcastic” or commence investigations without notice given or the presence of counsel. Precedent setting case or not? Court concluded: ”hopefully won’t happen again.”

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