Former Justice Minister Kiri Allan says she has pleaded not guilty to a charge of failing to accompany police on the night she crashed her car in Wellington because she wanted to test an apparent grey area in the law about the right to consult a lawyer.
Allan has
The Wellington District Court today said the matter has been adjourned again to February next year.
In a statement to the NZ Herald, Allan said it would have been easier for her to plead guilty to the charges, which are relatively minor and could have been dealt with without her appearing in court.
However, she had pleaded not guilty to the charge of failing to accompany a police officer to test an apparent grey area “based on the legal principle that all New Zealanders are entitled to consult with a lawyer”.
The statement said that on the evening in question, Allan had requested to speak to a lawyer immediately before and after her arrest by police.
“The police did not allow her to and the charge of failing to accompany arose following her unwillingness to accompany without the ability to speak to a lawyer, which she is now pleading not guilty to.”
Allan said there was a lack of certainty as to the point at which that right applied, according to a number of lawyers she had engaged who had both prosecution and defence experience. She said it seemed to be a grey area, which was not ideal when it came to exercising a fundamental human right.
Allan said taking the matter to a trial was not the easy option to take, given a guilty plea would typically result in a minor fine and potentially a period of licence suspension. It could also have been dealt with without her going to court in person.
“The route of taking the matter through the courts will be incredibly exposing, it will be costly, and it will require a personal attendance in the court. This is a significant decision to make and the sole focus in these circumstances is to ensure that both the police and New Zealanders have certainty about when the right to legal counsel is available.”
The Bill of Rights Act states that everyone who is arrested or detained under any enactment must be informed at the time of the arrest of the reason for it, and “shall have the right to consult and instruct a lawyer without delay and to be informed of that right”.
Allan said the law should be clear and accessible to all New Zealanders.
“This is particularly so when it comes to fundamental rights, contained in the Bill of Rights Act, which relates directly to the rights and liberties of all citizens of this country.
“Most New Zealanders would agree that [for] both those that enforce the law and those that are subject to the law, when it comes to rights impacting on the liberty of people to not be arbitrarily arrested or detained, [the rule] should be black and white. The fact that it is not should be of great concern to every person in this country who believes in democracy and civil liberties,” Allan said.
“If successful in the courts, the police can be found to have illegally arrested and detained the first Māori Minister of Justice.
“The right to legal counsel is a fundamental protected right in the NZBORA [Bill of Rights Act] and applies to every New Zealander equally.
“The issue here is that such a fundamental legal right sits in a grey area which several senior lawyers in NZ from both a defence and prosecution perspective have not been able to provide a unified view on with but for the fact that all agree that the law is currently uncertain.”
Allan had been driving on Evans Bay Parade on the night, and crashed into a parked car, shunting it forward.
She was arrested and held in the police cells after the incident and quickly charged with careless driving and refusing to accompany police. She resigned her portfolios the next day, and shortly after confirmed she would not stand for re-election.
Earlier this month, Allan posted on social media about that night, the lead-up to it and the aftermath, saying it had been the hardest year of her life, but also an “unwanted gift”.
She wrote that night was the culmination of her mental health struggles, and challenges at work and personally - she had recently split up with her partner Māni Dunlop.
She said it had been the hardest year of her life - but also an “unwanted gift” and had given her time with her daughter and her family.
“This year has also been the biggest unwanted gift I’ve ever received. A forced stop which requires going deep into the places I’ve never wanted to venture into before. It’s the hardest thing I’ve ever done and far outweighs the public humiliation and shame I feel from the evening of the breakdown and crash.”
“There are good days. There are bad days. There are sad days. There are hopeful days.”
Failure to accompany is a charge under s59 of the Land Transport Act.
“Hon Allan is pleading not guilty to the charge of failing to accompany a police officer based on the legal principle that all New Zealanders are entitled to consult with a lawyer, but there is a lack of certainty as to when this right applies according to several senior lawyers Hon Allan has engaged who have both prosecution and defence experience.
“The right to legal counsel is a fundamental protected right in the NZBORA and applies to every New Zealander equally.”
On the evening in question, Allan requested to speak to a lawyer immediately both prior [to] and after the arrest. The police did not allow her to and the charge of failure to accompany arose following her unwillingness to accompany without the ability to speak to a lawyer, which she is now pleading not guilty to.
“The issue here is that such a fundamental legal right sits in a grey area which several senior lawyers in NZ from both a defence and prosecution perspective have not been able to provide a unified view on but for the fact that all agree that the law is currently uncertain.
Allan said: “Universities teach at law schools that all laws should be clear, should be accessible to all New Zealanders, not just legal professionals. This is particularly so when it comes to fundamental rights, contained in the Bill of Rights Act, which relates directly to the rights and liberties of all citizens of this country.
“Most New Zealanders would agree that [for] both those that enforce the law and those that are subject to the law, when it comes to rights impacting on the liberty of people to not be arbitrarily arrested or detained, [the rule] should be black and white. The fact that it is not should be of great concern to every person in this country who believes in democracy and civil liberties,” Hon Allan said.
A plea of guilty would typically result in a minor fine, and at worst a period of licence suspension. On this route, due to the minor nature of the charge, it would be dealt with on the papers (no in-person court attendance required) and would cost very little (a fine and the matter can be dealt with by a legal aid lawyer).
The route of taking the matter through the courts will be incredibly exposing, it will be costly, and it will require a personal attendance in the court. This is a significant decision to make and the sole focus in these circumstances is to ensure that both the police and New Zealanders have certainty about when the right to legal counsel is available.
If successful in the courts, the police can be found to have illegally arrested and detained the first Māori Minister of Justice.
Claire Trevett is the NZ Herald’s political editor, based at Parliament in Wellington. She started at the Herald in 2003 and joined the Press Gallery team in 2007. She is a life member of the Parliamentary Press Gallery.
