Anti-mandate protesters in court
Defence lawyers argue pair’s arrests during lockdown violated Bill of Rights Act
Prominent lockdown critics and Covid-19 conspiracy theorists Billy TK and Vincent Eastwood returned to Auckland District Court yesterday as their lawyers argued that their arrest on the first day of last year’s Delta variant lockdown violated the New Zealand Bill of Rights Act.
The duo spent three days in court in August for a judge-alone trial in which they faced accusations of failing to comply with an order under the Covid-19 Public Health Response Act, which could carry a punishment of up to six months’ jail and a $4000 fine if convicted.
But Judge Peter Winter allowed the lengthy adjournment after the defendants finished testifying so that both sides could submit written legal arguments.
A senior police officer testified during the trial that TK, a musician and unsuccessful former 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 200-300 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.
Despite the warnings from police,
TK testified that he was surprised by his arrest because he believed the New Zealand Bill of Rights Act, which calls for protection of freedom of speech and assembly, should have superseded any lockdown orders.
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.
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 yesterday’s hearing, lawyer Nathan Batts, who represents Eastwood, argued that before evaluating the facts of the case Judge Winter should first consider whether a restriction on public protests was lawful in the first place. Because the Covid-19 gathering restriction was ordered by a Government minister
and not Parliament itself, a judge can step in to determine that it’s not legal, he argued.
Police have disagreed, arguing that it is not the judge’s role to evaluate the law itself.
Batts also suggested that the judge could find the lockdown order was mostly lawful in its ban of recreational gatherings while also deciding that there was an “implicit exception for peaceful protest”.
If Judge Winter decides the law does comply with the Bill of Rights, Batts argued that he still couldn’t find Eastwood and TK guilty unless he also determines that they “intentionally” failed to comply with the Covid19 order.
“There isn’t that intention of a failure to comply,” he said, describing the defendants as having “a greater familiarity with the Bill of Rights Act than most ordinary New Zealanders”.
“They effectively took the view — that I submit the court should take — that the Bill of Rights protections here are the dominant feature.”
Paul Borich KC, who represents TK, declined to give lengthy oral arguments yesterday, as did police. All lawyers have filed written submissions.
Judge Winter is expected to issue his reserved judgment at a hearing next month.