Tuesday, March 03, 2015

NZ police violated legal privilege

There's a case going through the Supreme Court at the moment where the New Zealand police bugged an accused's conversations with their lawyer in an effort to gain an advantage during prosecution:

A convicted drug baron says police illegally intercepted phone calls he had with his lawyer, giving prosecutors unfair insights into his case.


The Supreme Court was told today that Beckham was locked up after some 220 hours of phone calls were tapped. His car and cellphone were bugged and he was arrested in December 2008.

He was a high-value target and police spoke publicly of their relief at Beckham being taken "out of circulation" when he was jailed.

Beckham's lawyer Simon Mount told the Supreme Court that phone calls Beckham made to his then-lawyer Murray Gibson were intercepted, giving police insights into discussions that were legally privileged.

Mr Mount said it was "extraordinary" for senior police to authorise or tolerate surveillance of conversations that gave the prosecution a heads-up on the defence strategy.

"We've got material that is clearly subject to litigation privilege."

Some of the interceptions were done by Corrections when Beckham was being held on remand. It is illegal for Corrections to monitor conversations with lawyers, and staff should have ceased recording and destroyed all records the moment they realised the conversation was privileged. While it wasn't illegal at the time for police to violate privilege in this way (it is now), its unquestionably a violation of the right to a fair trial. To point out the obvious, an adversarial justice system simply does not work if one side can bug the other and know their strategy, strengths and weaknesses in advance.

As for the remedy, the police won't learn to obey the law if they're allowed to convict people on the basis of illegally gathered evidence or by violating their fair trial rights. The court should throw out the conviction, and make it clear that it is the police's fault. If the police don't want the guilty to go free, they need to actually obey the law.