The story of Aaron Gilmore ... sorry, Todd Barclay's ... behaviour towards his electorate staff has just got a lot more interesting, as new details about the efforts to cover it up emerge. Might the Police have reason to again become interested in it?

Newsroom's truly exceptional piece of investigative journalism into the saga of National's Clutha-Southland MP Todd Barclay, his ex-electorate agent Glenys Dickson, allegations of illegal secret recordings and revelations of a secret taxpayer-funded payout is well worth a read (as well as a payment to them through PressPatron). 

The immediate lede is Dickson's claim that Barclay used a dictaphone to record her converstations without her knowledge; a crime under the Crimes Act 1961, s.216B. Police subsequently investigated that matter - although Barclay refused to speak with them about it, despite earlier promising that "If they do contact me on any matter, then I will co-operate fully" - and decided not to bring charges. But there's then a lot more in the story worth reading, including descriptions of Barclay's approach to his electorate duties that make him appear to be National's new Aaron Gilmore.

And buried in the middle of the story is this little excerpt:

Within weeks of laying her police complaint, Dickson says she spoke to a National Party board member.

“I was told if I didn’t withdraw the police complaint I could potentially take down the National Party, and there was an [implication] that if National didn’t have Barclay in Parliament they were one short to pass legislation.” 

Dickson said she was also told that it would be difficult for her and her family if she had to appear in a high-profile court case.

“The board member explained to me if I withdrew my complaint I would be considered a hostile witness and the police would have not had a case.”

Now, let's just note that this is only Dickson's version of events - we should not treat it as gospel. There may well be another account of this conversation which differs markedly as to its content. If and when that account emerges, I will update this post to include it. 

But having read and internalised those cautionary words, let's then move on to note the Crimes Act 1961, s.116:

116 Conspiring to defeat justice

Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

And then let's consider R v Dewar (HC Hamilton CRI-2005-019-3213, 21 June 2007) at [38]–[39]:

An attempt to obstruct the course of justice may also occur where the defendant discourages a potential complainant from pursuing allegations of wrong-doing.

And then let's imagine this scenario: a gang member makes an complaint to the police that another gang member has stolen some of her property. One of the gang's leaders then comes to the complainant's home and tells her that her complaint makes the gang look bad, that it's causing friction between the membership and that if the accused gets convicted and jailed it will hurt the gang in its future battles with rival gangs ... so she might want to withdraw the complaint as it would be difficult for her and her family if she doesn't.

What do we think the police should do if they are made aware that such a conversation has taken place? And why does it change things if instead of a gang leader, we instead have a claim that a member of a political party board is involved?

Comments (9)

by Ross on June 20, 2017
Ross

Andrew

My understanding is that conversations can be recorded without the other party's knowledge as long as the person doing the recording is present. Is that correct? 

by Andrew Geddis on June 20, 2017
Andrew Geddis

@Ross,

That's right - it's not an offence to record yourself in conversation with others, even if they don't know you are doing so. Nor is it an offence to record other people without their knowledge if they are not engaged in a "private communication". But the allegation against Barclay is that he left a dictaphone running when he wasn't in his office so as to record what Dickson was saying in conversations with constituents.

These issues also were hashed out at some length back in 2011 in relation to the whole Bradley Ambrose "Teapot Tapes" affair - see here, for instance.

by Katharine Moody on June 20, 2017
Katharine Moody

Yes, that passage was disturbing but also the passage when she describes a phone call from a male person who did not identify himself but told her not to attend/vote on the candidate reselection - and made a veiled threat about a female member of her family. To me this was horrible, absolutely horrible - something that is a criminal act as well to my mind. The former electorate chair also spoke of threats but in a more general way. In this respect, the threats are indeed that which we would expect of gangs, not of members of a political party.  

by Graham Adams on June 20, 2017
Graham Adams

It's also time to wonder how politically motivated our police are. When Bradley Ambrose accidentally recorded the Teapot Tapes, police searched media newsrooms. When Todd Barclay refused to speak to police, no search warrants were issued.

by Alan Johnstone on June 20, 2017
Alan Johnstone

If he's flat out lied, then he's gone surely?

No way round that

by Peter Grant on June 20, 2017
Peter Grant

Makes Aaron Gilmore look just like a baby !

by Nick Gibbs on June 22, 2017
Nick Gibbs

An attempt to obstruct the course of justice may also occur 

I think may is the key word here. What does precedent say about how that is interpreted. I imagine there are plenty of police complaints that are never progressed after changes of heart with no obstruction charges subsequently filed. 

by Richard on June 23, 2017
Richard

I imagine there are plenty of police complaints that are never progressed after changes of heart with no obstruction charges subsequently filed.

Probably mostly because of lack of evidence that obstruction has occured, and because not every "change of heart" is due to obstruction of justice. Change can be due to victims not wanting to re-victimise themselves through the court process, for example, rather than direct pressure by accused (or associates).

Those considerations don't seem to apply here.

Also, much more important that justice needs to be seen to be done when it applies to MPs. So, if there's an appearence of obstruction of justice involving MPs and associates, police should use their discretion to prosecute.

by Dennis Frank on June 24, 2017
Dennis Frank

Andrew's analogy seems valid.  Does the law define the dictaphone recording as a breach of her privacy?  I presume the answer is that only a court can decide in the affirmative.  If the police decide to prosecute Barclay on the basis of his admission that he did so, is a court therefore likely to decide that he thereby admitted his guilt?  That is to say, his confession is evidence that he committed the crime.

If not, will the PM be called to testify that he admitted guilt, or will the PM's police statement suffice to establish that in the opinion of the court?

How much wiggle-room is there in the police discretion, whether or not to prosecute?  Can they just decide criminal MPs are no big deal because we have to pretend to chase burglars all day?

If the police prosecutor votes National and decides accordingly, will the Minister of Police commend his discretion to the Police Commissioner, discretely, so as not to actually recommend his promotion, nudge nudge wink wink?  More importantly, is the provision of justice (by government) limited by the same government via police discretion?  Sorry, too many fascinating questions, too little time for answers...

 

 

 

 

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