Thursday, June 08, 2006



A shameful verdict

Tim Selwyn has been found guilty of sedition. This is a shameful verdict, and a major step backwards for freedom of speech in this country. Punishing people for their words and intentions rather than their actions should require meeting a very high threshold, and one which our sedition law, with its vague references to "violence, disorder, and lawlessness" simply does not come close to. While superficially covering incitements to riot and such, historically this law has been used to cover such "incitements" as encouraging civil disobediance of unjust laws (for example, those relating to conscription, or Depression-era unemployment taxes), encouraging political opposition to government policy (for example, of Depression-era welfare policies which discriminated against unmarried workers), and selling or publishing communist literature which advocated global revolution and an end to capitalism at some undefined point in the future.

Directly inciting a riot may be "yelling 'fire' in a crowded theatre" - but none of this is. And neither were Selwyn's pamphlets. While encouraging "like-minded New Zealanders to take similar action of their own", no specific crime is being incited. Instead, it's just a strongly-worded call to action - and it should be protected as such.

By finding Selwyn guilty, the jury have effectively revived sedition in New Zealand, and opened the door to further prosecutions for what is effectively a political crime. And that is not something any of us should welcome.

I've been told that Selwyn will likely appeal to the High Court on BORA grounds, and we just have to hope he succeeds.

14 comments:

TVNZ's report is a bit vague, though it is early days I suppose. From what I gather his defence was that he didn't publish the pamphlets? Why did he not use the BORA in the first instance

Posted by PabloR : 6/08/2006 05:33:00 PM

The TVNZ report is riddled with factual errors. Selwyn admitted publication, but denied that the pamphlets were seditious. As for the BORA, ask his lawyer - apparently he didn't mention it for the whole trial.

Posted by Idiot/Savant : 6/08/2006 05:57:00 PM

It's a crying bloody shame

Posted by Lewis : 6/08/2006 08:49:00 PM

I am guilty of sedition.

Posted by sagenz : 6/08/2006 09:01:00 PM

I think it unfortunate that you've chosen to characterise this as "a shameful verdict" instead of perhaps as a verdict reasonable on the facts resulting from a shameful law.

TV3 seemed to give a reasonable summation - including short clips from the judge's summation of the law to the jury, which suggest that free speech in a democracy was firmly on the table. The video is here:

http://www.tv3.co.nz/News/tabid/67/articleID/9221/Default.aspx

Of course it's inappropriate to argue the effect of the Bill of Rights Act on the law of sedition before the jury (I've explained in comments on posts on the Kendall-Smith court-martial that juries decide facts, not law).

The appropriate use of the Bill of Rights Act by Selwyn's lawyers in a case like this is in argument surrounding the the judge's summation of the law to the jury. In a rare case such as this one imagines the judge would invite written submissions, or hold a chambers hearing (that is, in the absence of the jury) to work out how the sedition law will be explained to the jury. Looking at the section under which he was charged, the Bill of Rights Act would require the judge to explain to the jury sedition in the manner available that is least restrictive on the right to free expression. Selwyn's lawyers ought to have been telling the judge this is how you ought explain what 'incite' means, and what 'encourage' means. This is analagous with what the High Court would have required in the Hopkinson case (which of course was heard by judge alone).

Not wanting to confuse the jury (imagine a situation where the Crown argues the explanation should be in one form, and the defence in another, while the judge decides on a third) this discussion between counsel and the judge will have been heard privately, with only the judge's conclusion aired publically to the jury (of course the argument over whether the formulation adopted by the judge was the correct one will be heard publically on any appeal).

I/S, you observe that "Punishing people for their words and intentions rather than their actions should require meeting a very high threshold" - as the Bill of Rights-consistent interpretation of sedition almost certainly does (again analagously with the Hopkinson case). Your suggestion that Selwyn's pamphlets incite no specific crime is a little disingenuous, however - the pamphlet talks at length about "attacking the electorate office of the chief instigator, the Prime Minister" - which is clearly a specific crime. You ought to be ready for the possible (if not probable) conclusion on any appeal that even a narrower, BORA-required construction of the sedition offence results in a conclusion of guilt in a case with these facts.

For the most part, I think that the argument that sedition was an inappropriate charge in the present case is one that will only cloud the substantially stronger argument that sedition shouldn't be unlawful at all.

Posted by Graeme Edgeler : 6/08/2006 10:24:00 PM

I am guilty of sedition?!

The pamphlets at the scene are not seditious but the media release is according to the jury. Inciting the media to acts of journalism became a crime today. I don't think the jury grasped the context of the text in relation to it's purpose - despite explaining it several times in several different ways during the trial.

I think the jury may have taken the text and the sedition definition too literally and not in the context of a symbolic protest action and in the context of a facist law.

I'll have to appeal.

Posted by t selwyn : 6/08/2006 10:25:00 PM

T Selwyn - you should have opted for a trial by judge alone (I'm assuming you had the option, and the police didn't lay the charge indictably). A judge would have been required to fully explain the reasoning behind reaching a conclusion on your particular intention (which would have presented greater opportunity to appeal). As you implicitly note, the jury will never be required to explain its decision.

Posted by Graeme Edgeler : 6/08/2006 10:31:00 PM

This comment has been removed by a blog administrator. Posted by Chuck the Lucky : 6/09/2006 03:24:00 PM

Calling a call for "similar action" action to throwing an ax through a window does not seem at all vague to me. He is calling for people to take violent actions that are likely to hurt or kill someone. How is this a free speech issue? If he had been a pro-war or right wing radical would you honestly still be standing up for him? If the Prime Minister were to call for those who are not of "like mind" to take "similar actions" against his Tumeke magazine office would you consider it a legitimate form of free speech?

Posted by Chuck the Lucky : 6/09/2006 03:25:00 PM

"Similar action" is suitably vague to avoid being accused of suggesting people specifically throw axes through windows. As much as I dislike what the guy writes most of the time, he deserved the benefit of the doubt. Similar action could be any form of protest action that the protester thought appropriate. Selwyn felt an axe through a window to be appropriate and he was charged and pleaded guilty with that, which should have been the end of the matter.

Posted by PabloR : 6/09/2006 03:59:00 PM

This is a shameful verdict and reflects very poorly on the Police and the Govt for allowing the charge to go ahead. They could have handled this differently.I don't agree with Mr Selwyn's ideas or actions, but I do support his right to express them.

One question: as the pamphlet's contents were reported in the media, are they not also technically as liable for a charge of sedition as Tim?

Posted by m.stevens : 6/09/2006 04:23:00 PM

Let's get Liz or perhaps Charles to sort out all this ruddy nonsense shall we?

Posted by Anonymous : 6/09/2006 05:29:00 PM

Well said Idiot/Savant. Tim's paragraph in the pamphlet where he speaks of the symbolism behind the axe through the window sets the tone of the protest. No worse than Tame Iti firing a gun into a flag in a crowded area with Police watching. It could be called many things, but we should not be calling it seditious if we treasure freedom.

As for the people who claim that a repeal of s59 will not see people wrongfully arrested for light smacking, prosecuted, and punished, on the basis the police would use discretion before deciding to apply the law, this incident may make you think twice. Probably not, but you may want to learn some French phrases. Deja Vu springs to mind.

Posted by ZenTiger : 6/10/2006 06:54:00 PM

I thought this had a spooky resonance
"Sedition Man found Guilty" at http://www.kiwiherald.blogspot.com/

Posted by Anonymous : 6/11/2006 09:06:00 PM