Al Gillespie: First terrorism prosecution over mosque shootings poses risks

COMMENT

We are in unchartered waters. Assuming the man accused of the shootings on March 15 in Christchurch is fit to stand trial, and assuming he pleads not guilty, and remembering that the accused is innocent until proven guilty, unless the trial is handled very carefully, the risk is that the accused could add fame to his existing notoriety for all of the wrong reasons.

New Zealand has never been in this situation before. While it is true that acts of horrific violence reached unprecedented levels in the Land Wars in the 19th century, by the time of the 20th century, we largely missed the terrorism-related problems that swept the rest of the world.

Our terrorism based legislation arrived after the Rainbow Warrior was blown up by the French, before it was completely reworked in the 21st century after the events in America, on September 11, 2001. The current law, the 2002 Terrorism Suppression Act to which the accused is now also going to be charged (in addition to 51 counts of murder, and 40 of attempted murder) was originally designed to deal with enemies which were large, organised, and external, like al Qaeda, or Islamic State.

The result in New Zealand has been that although there have been incidents which attempts could have been made to try to be squeeze them into the 2002 legislation, such as with the poisoning of baby formula, the sharing of ISIS videos, or even the police raids in the Urewera raids in 2007, the authorities have ultimately declined to add terrorism charges to the potential rap-sheets. In each instance, those accused have faced justice under other, often standard, criminal or civil law legislation.

This approach is now going to change. The Crown has decided to add terrorism, to the charges that the accused is now going to face. The particular charge will involve committing a terrorist act, which by definition involves causing an "outcome [such as death or serious injury] carried out for the purpose of advancing an ideological, political, or religious cause, and with the intention… to induce terror in a civilian population; or to unduly compel or to force a government or an international organisation to do or abstain from doing any act".

In practical terms, this charge will not add anything more. If found guilty, the accused will get a minimum of 17 years for each murder. Even though New Zealand steers towards concurrent, as opposed to cumulative, sentences, if convicted, the accused is likely to stay behind bars a very long time as his non-parole period could stretch well into the distance. For example, the longest non-parole term, so far is 30 years for three murders. Adding a further life sentence if found guilty related to terrorism is not going to add that much difference to the 51 charges of murder he is already facing in terms of length of possible incarceration.

The risk of adding this terrorism-related charge is that the law is novel and untried in New Zealand and it may operate in unexpected ways. Specifically, if the accused pleads not guilty, then the Crown is going to have to prove a sequence of considerations, which although should be easy to do on paper, may give the accused the platform he desires to explain, in full view of the entire world, why he did what he did.

Of course, the accused may try to claim such a platform anyway with conventional murder charges. The comparable Anders Breivik did this when he was faced similar charges, arguing that what he did was in self-defence (of his culture, not his person). This risk should not be large in New Zealand as this type of thinking does not fit our criminal law, and with our understanding of murder, the emphasis is not on why it was done but on the fact that the accused meant to cause the death of the person killed.

The terrorism charge is different. Here, if the accused pleads not guilty, what the accused intended could become important. Here the challenge will be to strike a balance between the accused getting a fair trial, a presumption of innocence and being able to fully answer the charges against him - while not giving him the chance to deliver a few sound-bites that go as viral as his alleged live stream.

If this is the risk, the question then becomes, why take it?

The answer is two-fold. First, if the crime is on the law books it should be used. In addition, if this particular crime was ever going to fit, this looks like it could be that time as the alleged incident is much closer to international patterns and conventional understandings of what terrorism looks like, than the previous, other, domestic incidents.

Second, sometimes countries are faced with a crime which is so extreme that prosecution within conventional legal brackets does not do it justice. In this setting, justice is related to the larger social understanding and possible condemnation of what occurred, and not just the punishment of the accused. This means the context and reasons for the crime have to be acknowledged in the legal charges that the accused faces, not just the attribution of blame for each murder. In this thinking, it is not sufficient that someone, if found guilty, could escape with only being labelled a murderer after killing 51 people with a clear reason, and not also be legally classified as a terrorist.

* Alexander Gillespie is a Professor of Law at University of Waikato