Police error sinks protest trespass charge
The first legal challenge to the validity of trespass orders given to Parliament protesters early in the occupation in February has won one for those arrested.
Moana Maaka, from Palmerston North, had pleaded not guilty to a charge of wilful trespass.
It was dismissed yesterday by Wellington District Court judge Andrew Nicholls, who said the police’s communication with those on parliament grounds had not been clear enough.
The decision has repercussions for others arrested on February 10 between 8.25am to 9.10am. About 120 people were taken into custody on that day, with police confirming 31 prosecutions are still active.
Between February 9 and March 4, 252 people were arrested. More than 40% of prosecutions have already been withdrawn.
Maaka was on the front line when police began using loud hailers to broadcast to leave the grounds.
Speaker Trevor Mallard had ordered the grounds closed and everyone who did not leave to be trespassed.
Judge Nicholls was asked to decide if Maaka had breached the Trespass Act by not leaving the grounds within a reasonable time after receiving the warning.
The judge said to trespass someone from a public space, two distinct and clear communications were needed.
The first revoking the right of the authority to be in a public space and a warning. The second is a warning that if they remain they will breach the Trespass Act.
The judge said after February 8, there was a sudden escalation of the number of people and structures on the grounds and at a meeting Mallard authorised the police to close the grounds.
On February 10, police began reading out messages over a loud hailer requiring all tents and structures to be removed and if they were not, for the grounds to be closed.
The message included that any person remaining following the grounds being closed would be trespassing and risked being arrested.
Police gave 15 minutes for people to begin moving and when they did not said parliament grounds were now closed.
Judge Nicholls said by then a confrontation between the police line and protesters had formed at the northern end of the grounds.
Maaka was arrested at the skirmish line at the northern end of the grounds at 8.47am. She was sitting on the ground at the front of the line.
The judge said arrest teams would reach through the police line and pull protesters through.
‘‘From this narrative it is clear that Parliamentary Services and police attempted an escalating series of messages to the protesters over the three days to encourage compliance, from least confrontational through to closing parliament grounds.’’
He said in his view the first message read was not a clear revocation of the authority of people to be on parliament grounds sufficient for it to be a warning under the Trespass Act. It was an escalation of the
messages already given.
Judge Nicholls said the language used was a last request to leave, but not a revocation of the authority to be on a public place.
He said from 8.25am until about 9.10am on February 10 police were broadcasting two different and inconsistent messages.
The first was a final request to remove the camp or the grounds would be shut and the second was that the grounds were closed and there was a risk of arrest.
‘‘The second of those messages was a warning under the Trespass Act, the first was not.’’
He said because Maaka was arrested during the period when the police were delivering inconsistent messages there was reasonable doubt whether it had the required clarity.
Another anti-vaccine protester won his case against the trespass order when police withdrew the charge last month.
Associate professor at Victoria University of Wellington Dr Dean Knight, who specialises in public law, said the ruling appeared quite narrow in application and related only to the particular way the occupation was managed in the early days and, then, for a period of less than an hour.
Police said in statement yesterday the decision would be reviewed.
Maaka was arrested at the skirmish line at the northern end of the grounds at 8.47am. She was sitting on the ground at the front of the line.