Justice delayed is justice denied

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    Auckland may not be, as former Mayor Len Brown hoped, the “world’s most liveable city” but I don’t doubt that Auckland Council is the most unpopular local body in the country.
    Most Aucklanders resent the Super City and its unpopular CCOs for their costly inefficiency and being out touch with the public, (“tone deaf” as John Banks recently put it), particularly the way complaints from the public are dealt with (too often dismissively) and for its notoriously poor decision making (think Quay Street and the waterfront shambles).

    Events related to Waiheke, however, reveal that the bumbling Super City has another side to its nature. And the exercise of its powers in pursuit of a Waiheke Island elected representative is what we are seeing in the case of Paul Walden, the former chair of the Waiheke Local Board and currently its deputy chair.

    It is this disproportionate use of power – raiding the home of a citizen while it was known he was at work at the council offices, with only his wife Jo and children at home to deal with six council officials backed up by three police officers armed with a search warrant for what appear alleged trivial offences – which sticks in the throat and offends the sense of justice.

    However traumatic that awful day might have been for the Walden family, it turned out their ordeal was only just beginning. A council prosecution followed and a case for alleged technical offences in the Environment Court (relating to earthworks to prevent flooding and minor renovations of the family home) has dragged on, periodically delayed for more than a year, with no end in sight.

    The major reason for the delay is very revealing: the council’s refusal, despite repeated requests, to provide disclosure to the Walden legal defence team. Disclosure to the defence is a fundament tenet of justice and central to court prosecutions around the world – but evidently not for Auckland Council. Why would the council want to keep certain information, including details of the original complaint that justified sending nine public officials into a peaceful family home, secret?

    I have written to the council chief executive Stephen Town expressing my concern. In response to my second letter, on 16 September 2018, Mr Town wrote to me pointing out that “All prosecutions undertaken by the Council comply with the Solicitor-General’s Prosecution Guidelines”.

    Rather ironically given the council’s refusal to provide disclosure, one of the key sections of the guidelines deals with disclosure and includes the statements “Proper disclosure is central to preventing wrongful convictions” and “Enforcement agencies and prosecutors should use their best endeavours to make initial disclosure by the time of the defendant’s first appearance to facilitate entry of a plea by the second appearance…”

    This, the council certainly did not do and, more than a year into this saga, and with no fewer than seven court sessions, it still has not provided full disclosure.

    The council, to my mind, has evidently also taken scant regard of the Solicitor-General’s guidelines in its original decision to prosecute. Not surprisingly the guidelines appear to be predicated more on the prosecution of actual criminal activity rather than technical breaches of the Resource Management Act. However, sections headed “Public interest considerations against prosecution” address a range of reasons why it is in the public interest that, where possible, prosecutions should be avoided in favour of other remedies. Typical examples include “Where the loss or harm can be described as minor and was the result of a single incident” and “Where any proper alternatives to prosecution are available”.

    So, the Solicitor-General’s guidelines referred to me by the council CEO to justify the council’s conduct are being effectively ignored by the council in favour of dragging Mr Walden, month after month, through the courts.

    To be fair, I have to declare I am an admirer of Paul Walden, who grew up on Waiheke. Interestingly, he is one of the very few local government politicians who works with his hands. I thought his leadership of the Waiheke Local Board from 2013 to 2018 was outstanding, particularly in the work his board achieved in advancing marine protection.
    There is in my view a worrying dearth of political talent in Auckland politics and this has allowed the council/CCO bureaucracy to appropriate an unhealthy amount of power. It’s unfortunate that a talented young office-holder like Paul Walden and his family have to suffer this sort of traumatic experience. Keeping to the rules is incumbent on everyone, council officers included. I recall those timeless aphorisms “an attack on the civil liberties of one, is an attack on us all” and “justice delayed is justice denied”.

    Mike Lee
    Mike Lee is Waitemata and Gulf ward councillor on the Auckland Council and the former chairman of the Auckland Regional Council

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