On Thursday 10 September 2015 from 10:20am to 10:40am Robert Lee and Johan Aarts will be presenting oral submissions in support of their written submissions to the Justice and Electoral Select Committee opposing certain aspects of the Evidence Amendment Bill 2015.
This is an invitation for you to attend.
Clause 33 of the Bill would make it an offence for anyone (including the Police) to show Evidential Videotaped Interviews (EVI’s) for any purpose other than criminal prosecutions.
If this bill were adopted in its current state the Police would be free to make false and defamatory statements with impunity as long as they claim to rely upon EVI’s and do not bring a criminal prosecution. Not even the Employment Court or High Court would then be able to order disclosure of EVI’s to test the accuracy of statements made by Police and/or Child Youth and Family Services in reliance upon EVI’s.
In 2006 Child Youth and Family and the Police recorded some EVI’s about me (Johan Aarts). The Police and CYF contacted my employer claiming that allegations of inappropriate, but not criminal, behaviour had been made about me on the EVI’s. I subsequently lost my job and my career as a counsellor.
Since 2006 the Police have resisted numerous requests to disclose the EVI’s to me (under the Privacy Act 1993, Official Information Act 1982 and Employment Relations Act 2000, & even the High Court Rules).
I have obtained overwhelming evidence that there were no allegations of inappropriate behaviour made about me on the EVI’s. This evidence includes several internal and external documents from CYF which are explicitly clear.
The Evidence Regulations
The Evidence Regulations 2007 replaced the Evidence (Videotaping of Child Complainants) 1990 (see R50) and applied retrospectively (see R51) in an apparent attempt to allow the Police to resist disclosure of EVI’s in the non-criminal arena (eg in my employment case). However in 2013 The Employment Court ruled that the Evidence Regulations do not apply under the Employment Relations Act 2000 (at -) or under the Privacy Act and therefore cannot be relied upon to prevent the Employment Relations Authority from issuing a summons to the Police for EVI’s in a relevant employment case (such as mine).
Nevertheless the Commissioner still did not want to disclose the EVI’s to me and so appealed the decision thereby stalling any application or order for their disclosure. However in May 2015 the Commissioner abandoned his appeal. In submissions on costs (at paragraph 4) the Police cited clause 33 of the Evidence Amendment Bill 2015 as the reason for the abandonment.
Evidence Amendment Bill 2015
There is no mistaking the effect of this bill. In August 2015 the Court of Appeal issued a costs decision which provided some authoritive judicial commentary on the effect of this bill:
…the abandonment of the appeal was reasonable in the light of the forthcoming clarification of the law by the Evidence Amendment Bill 2015, which proposes to prohibit showing an EVI unless otherwise permitted by the Evidence Act or Evidence Regulations.
(The Evidence Act and Evidence Regulations apply only to prosecutions of criminal cases and not to proceedings under the Employment Relations Act, Privacy Act or Official Information Act etc.).
Apart from giving the Police and CYF the freedom to make false and defamatory statements about anyone with impunity (so long as they claim to rely upon EVI’s and the Police do not lay criminal charges) the effect of the new bill would be retrospective. This is because the offence would occur at the time a video was shown.
In my case all the Police have to do is employ further delaying tactics by once again appealing any decision in favour of their disclosure (eg under the ERA 2000 or Official Information Act) until the new law comes into effect and their disclosure would be avoided – even though the EVI’s were recorded in 2006 under the 1990 Evidence Regulations.
As far as my case is concerned, this would be the second time that the law has been changed in an effort to give effect to a cover up.
Apart from protecting the Police and CYF this bill would also protect the Privacy Commission. The Privacy Commission inexplicably declined to order the Police to disclose the EVI’s to me and instead offered to view the EVI’s “on my behalf” to confirm that a written summary of the EVI’s provided by the Police was accurate. Although I declined their offer the Privacy Commission nevertheless went ahead and viewed the EVI’s and provided an assurance to me that the summary was accurate, when it was not.
There is nothing so remarkable about EVI’s, as compared to other evidence, to justify their exclusion from being used lawfully in the non-criminal arena. To do so would be contrary to the principles of natural justice, good and transparent government.
For more information visit johan.co.nz
Please note: Due to the serious allegations made against the Police, CYF and the Privacy Commission, don’t be surprised if the Select Committee exclude the media and public from our oral submissions. Tony Wall of the Sunday Star Times and a dozen members of the public were previously excluded from the Rotorua High Court in a preliminary hearing of related defamation proceedings. Suppression Orders were put in place (no longer in effect) and an article published on stuff.co.nz by Tony Wall was removed the same day – at the request of the Crown Law Office.